MATTER OF K— 

In EXCLUSION Proceedings 

A-6723213 

Decision by Special Inquiry Officer January 9,1959 

Order of the Board November 19,1959 

Deci4on by Attorney General January 3,1961 

Excludability—Determination based on conviction during parole. 

Conviction occurring subsequent to arrival in United States while alien was in 

parole status and application for admission was pending will support exclusion order notwithstanding that ground of inadmissibility may not have been 

in existence at the time of alien's arrival. 

EXCLUDABLE: Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)]—Convicted of crime involving moral turpitude prior to entry—Procured smuggling of diamonds. 

BEFORE THE SPECIAL INQUIRY OFFICER 

(January 9, 1959) 

DISCUSSION: The applicant is a 43-year-old married male alien, 

allegedly a native of Germany and a citizen of that country, who 

last arrived in the United States at the port of New York, New 

York, on July 30, 1956, as a passenger on the SS. United State.g. On 

that date he was in possession of a nonqnota immigrant visa issued 

on March 29, 1956, by the American Consul in Germany. 

The applicant was made the subject of exclusion proceedings before this special inquiry officer and was accorded a hearing in such 

proceedings on January 23, 1957, at the Federal Correctional Institution at Danbury, Connecticut. By decision of this special 

inquiry officer dated May 3, 1957, the applicant was found to be 

excludable from the United States under section 212(a) (0) of the 

Tmmigration and Nationality Act as an alien who had been convicted of a crime involving moral turpitude, to wit : Violation of 

Title 18, U.S.C., sections 2 and 545, to wit, causing and procuring 

smuggling of diamonds, and the applicant was ordered excluded and 

deported from the United States. The facts relating to the applicant's prior immigration history, the circumstances leading up to 

his arrest and conviction, and other relevant matters are set forth 

143 
in detail in my decision of May 3, 1957, and no useful purpose would 

be served by repeating them at length herein. 

No appeal was taken from my order of May 3, 1957. 

Under date of November 20, 1957, the applicant requested that 

the exclusion proceedings be reopened to give him an opportunity 

to apply for a waiver of excludability under section 5 of the Act 

of September 11, 1957. By order dated December 17, 1957, the proceedings were ordered reopened, and the reopened hearing has now 

been concluded. 

There are two principal issues presented by the facts in this case. 

The first of these issues concerns the question of whether an alien 

who applied for admission to the United States may be paroled into 

the country pending his criminal prosecution, his inspection as an 

applicant for admission being deferred, and upon his ultimate 

conviction for a crime involving moral. turpitude, examined, referred 

for a hearing before a spacial inquiry officer, and found to be ex 

cludable as a person who has been convicted of a crime involving 

moral turpitude prior to admission. 

As already indicated, in my order of May 3, 1957, I found that the 

applicant was properly excludable under these circumstances and 

ordered him excluded and deported. The legal basis for my conclusion has been fully set forth in my decision of May 3, 1957, and 

I find no reason to deviate from the position stated therein in any 

respect. 

The second issue involved herein is as to whether the applicant 

is entitled to a waiver under section 5 of the Act of September 11, 

1957, as he has requested. 

Since the applicant is married to a naturalized citizen of the 

United States and has two minor children who were born in the 

United States, it is clear that he meets the preliminary requirements 

for a waiver under that provision of law. However, it must also 

be established to the satisfaction of the Attorney General that 

(a) the alien's exclusion would result in extreme hardship to the 

United States citizen or lawfully resident spouse, parent, or son or 

daughter of such alien, and (b) the admission to the United States 

of such alien would not be contrary to the national welfare, safety, 

or security of the United States. 

Section 291 of the Immigration and Nationality Act provides in 

part as follows: "Whenever any person makes -application for a visa 

or any other document required for entry, or makes application for 

admission, or otherwise attempts to enter the United States, the 

burden of proof shall be upon such person to establish that he is 

eligible to receive such visa or such document, or is not subject to 

exclusion under any provision of this Act, and, if an alien, that 

he is entitled to the nonimmigrant, quota immigrant, or nonquota 

144 
immigrant status claimed, as the case may be. If such person faile 

to establish to the satisfaction of the consular officer that he is 

eligible to receive a visa or other document required for entry, no 

visa or other document required for entry shall be issued to such 

person, nor shall such person be admitted to the United States 

unless he establishes to the satisfaction of the Attorney General that 

he is not subject to exclusion under any provisions of this Act. . .." 

The subject alien is an applicant for admission to the United 

States and consequently has the burden of proving that he is not 

excludable therefrom. He has this burden of proof generally, and 

with regard to his requeSt for a waiver under section 5 of the Act 

of September 11, 1957, has the particular burden of proving that 

his admission to the United States would not be contrary to the 

national welfare, safety, or security of the United States. 

This burden of proof he has failed to meet. The applicant is a 

criminal who has been convicted of a single instance of smuggling 

diamonds. The record indicates, however, that the specific act of 

smuggling for which the applicant was convicted was only one of 

a considerably larger series of operations. The record indicates 

that the applicant had, in fact, sent 13 other parcels of diamonds 

to the United States. It is further indicated that he was permitted 

to plead guilty to only one such act of smuggling in order to save 

the Government time and money in bringing witnesses from Germany to testify at his trial. The applicant has indicated that he 

has approximately $75,000 in banks in Europe. Obviously, if I am 

to make a rational decision that the admission to the United States 

of the applicant would not be contrary to the national welfare, 

safety, or security of the United States, I require certain additional 

information regarding the applicant. I would like to know, for 

example, for how long a period and to what extent the applicant 

engaged in criminal activities prior to his conviction. Was his 

criminal career of such an intensive and varied nature as to make 

it unlikely that a relatively short jail sentence would effect a reformation of his character? Were his criminal activities motivated 

by the economic pressures of dire necessity, or were they the result 

of a hardened and deeply ingrained antisocietal attitude? Is the 

applicant truly repentant fnr his criminal activities, or does he 

merely regret the temporary interference with his plans occasioned 

by his arrest and conviction? Did he operate in his criminal activities as a solitary individual or was he so callous to the welfare 

of those close to •him that he deliberately involved his Wife, his 

brother, and his brother's wife? Was he merely the tool of another 

criminal or was he, himself, the master-mind of the operations? 

Does the applicant have information at this time which might lead 

145 

654377-63----11 
to the recovery of other smuggled merchandise or to the conviction 

of the persons involved in such smuggling operations? 

However, the applicant has persistently refused to answer questions relating to these fields of inquiry, making the claim that the 

answers would subject him to possible criminal prosecution. In 

other words, he has asserted a claim to privilege under the Fifth 

Amendment to the Constitution of the United States. His wife 

has similarly refused to testify regarding this subject matter, both 

on the basis of the Fifth Amendment and also on the general ground 

that she is unwilling to testify against her husband. 

To be more specific, the respondent refused to answer as to 

whether he had ever shipped any diamonds to the United States, the 

location of some $60,000 in assets in Europe, whether 12 other 

parcels of diamonds had been shipped into the United States by 

him, whether his wife was a participant in his criminal activities, 

and who an individual referred to by the name of "the shoemaker" 

was. It may be noted that the record contains correspondence 

sent by the applicant to his wife, brother, and sister-in-law in which 

there is a reference to a person so named. The applicant also refused to testify as to whether he was engaged in the business of 

money exchanging while in Europe. He refused to identify an 

individual by the name of IGNAC, who an individual by the name 

of SCI-ILAMEK was, or who a person by the name of RACHEL was. 

The applicant also refused to identify a copy of a letter which has 

been made part of this record, although his wife had previously 

identified it as being in his handwriting. 

The applicant's wife testified in his behalf at the hearing before 

me. She denied ever having assisted her husband in smuggling 

diamonds into the United States or, in fact, being aware of his 

activities until his arrest. She denied ever hearing of anyone who 

was referred to as "the shoemaker" or ever having received a letter 

in which such a reference was made. She also denied ever having 

paid a sum of $5,000 to a man named SAM WEISS, or any such 

incident in fact. However, when confronted with exhibit R-2, a 

letter which she admits is in her husband's handwriting, and which 

makes reference to "the shoemaker," as well as to the applicant's 

instruction to his wife to pay $5,000 to Sam Weiss, she refused 

to answer " any further questions about the letter claiming her 

privilege under the Fifth Amendment. I notice also that immediately after this letter was introduced into evidence with its neces 

sary implications that she was in fact involved in assisting her 

husband in his operations, and was quite well aware of his activities, 

she became ill and asked to be excused from further testimony. 

When she again appeared in the course of these proceedings she 

refused to testify as to when she first found out that her husband 

146 
was involved in smuggling, whether she knew that her husband's 

brother and sister-in-law were involved in the activities, and in 

general to give any testimony which might incriminate herself or 

her husband. She also refused to answer whether her husband made 

any trips in Europe without her, or whether her husband carried on 

business from an office or from their home. She refused to answer 

how long a period of time was covered by her husband's activities 

in the smuggling of diamonds, or when these activities ceased. She 

testified that between 1950 and 1956 she was supported by her husband, but refused to state what kind of work he was doing. It 

may be noted that there exists the possibility that the applicant's 

wife was within her legal rights to refuse to testify as to any 

matter which might tend to incriminate her husband. Such a position would rest upon the so-called husband-wife privilege and 

would be based upon the continuing marital relationship. However, 

with regard to questions directed to her regarding her own participation in the smuggling operation, or her knowledge of such operations, we are directly concerned with her own credibility. Prior 

to taking refuge behind the Fifth Amendment, she had specified 

that she had not participated in such activities and did not know 

of them. While she has a right to assert her claim under the Fifth 

Amendment, since in fact her testimony would tend to 'incriminate 

her, an inference may be drawn from her failure to testify which 

may well reflect adversely on her credibility. The applicant and 

his wife were repeatedly and explicitly warned that 'the burden 

of proof of establishing the applicant's eligibility for admission 

rested upon the applicant, and that the special inquiry officer considered the requested testimony as relevant to the issue of whether 

the admission of the applicant to the United States would be contrary to the national welfare, safety or security of the United States. 

It cannot be claimed, therefore, that the position taken by the 

applicant and his wife was one which was not carefully and deliberately chosen. 

Upon a consideration of all of the facts of record, I find that 

the applicant has failed to sustain the burden of establishing that 

his admission to the United States would not be contrary to the 

national welfare, safety or security of the United States, a prerequisite to the grant of relief under section 5 of the Act of Septem - 

ber 11, 1957, and, accordingly, such relief will be denied. 

It is noted that the courts have uniformly upheld the denial of 

discretionary relief for failure of an alien to answer questions 

relevant to such relief. See, for example, Jimenez v. Barber, 226 

F.2d 449; 235 F.2d 922 (and decision in the same matter (252 F.2d 

550) decided by the Circuit Court of Appeals for the Ninth Circuit, 

January 30, 1958). In the cited case, the subject had applied for 

147 
suspension of deportation but refused to answer questions regarding 

his membership in or affiliation with organizations prior to the 

five-year period for which he was required to establish good moral 

character. However, I feel that resort to such authority is unnecessary in the instant case. If the applicant had succeeded in 

establishing the basic requirement, for relief under section 5 of the 

Act of September 11, 1957, namely, the hardship to his spouse 

and children and that his admission would not. he contrary to the 

national welfare, safety or security of the United States, such cases 

would be authority for a denial of the relief as a matter of administrative discretion by reason of his obstructive attitude. In 

view of the fact, however, that he has failed to establish the basic 

prerequisites, he has not. even reached the question of whether the 

discretion of the Attorney General should be exercised in his particular case. 

At the outset of these hearings counsel made a tentative objection 

to the fact that an examining officer had been assigned to present 

the Government's case in this matter. The case was originally 

started before me without the benefit of an examining officer. When 

the motion for reopening and reconsideration was made for the 

purpose of requesting relief under section 5 of the Act of September 11, 1957, it appeared to me that the issues involved were sufficiently complex to warrant the services of an examining officer 

for the purpose of preparing and presenting the facts. Accordingly, the assignment of such an officer was-requested. I am satisfied 

that adequate authority exists for the assignment of such an officer 

in the recently decided case of Matter of III—, 8-24. 

The allegations of fact and the conclusion of law contained in 

my decision of May 3, 1957, will be adopted as the findings of fact 

and conclusion of law of this decision. 

ORDER: It is ordered that the applicant be excluded and deported 

from the United States. 

BEFORE THE BOARD 

(November 19, 1959) 

DISCUSSION: On April 15, 1959, we sustained the alien's appeal 

and directed that he be admitted as a nonquota immigrant. The 

Service filed a motion for reconsideration on May 29, 1959. Upon 

further consideration of the case in the light of that motion, we 

entered an order on July 31, 1959, affirming our previous order that 

the alien be admitted to the United States. The matter is now 

before us pursuant to the request of the Service on August 21, 1959, 

that the case be referred to the Attorney General for review pursuant 

to 8 CFR 3.1(h) (1) (iii). 

The appellant is a 44-year-old married male, native and citizen 

148 
of Uermany. He first arrived in the United State3 on July 17, 

1947, and was admitted for permanent residence. He was absent on 

four occasions and last departed in November 1950. The appellant 

next arrived in the United States at the port of New York on July 

30, 1956, and made application to be admitted for permanent residence. He was in possession of the required immigrant visa, having 

secured nonquota status on the basis of his wife's United States 

citizenship. 

Upon arrival, the appellant was apparently examined by an immigration officer and was then placed in the Federal House of Detention in New York City to await further action by the United States 

Attorney. On August 2, 1956, he was detained for hearing by a 

special inquiry officer. He was paroled under section 212(d) (5) 

of the Immigration and Nationality Act [8 U.S.C. 1182(d) (5)] on 

August 27, 1956. On December 17, 1956, the appellant was convicted 

of violating 18 U.S.C. 2 and 545, in that, on August 2, 1954, with 

intent to defraud the United States, he procured the smuggling 

of diamonds worth approximately $243,810. He was sentenced to 

imprisonment for 15 months. The first hearing before a special 

inquiry officer took place on January 23, 1957. 

The matter which is pending at this time is the appellant's application of July 30, 1956, for admission to the United States. If 

his conviction had taken place prior to the date when he applied 

to the American Consul for his immigrant visa, he would have been 

ineligible to receive a visa and he would have been inadmissible 

to the United States in accordance with 8 U.S.C. 1182(a) (9). 

However, it is not disputed by the Service that the appellant was, 

in fact, eligible to receive his visa and that he could not have been 

excluded on July 30, 1956, when he applied for admission to the 

United States, inasmuch as the conviction had not yet occurred. 

The sole issue to be determined is whether the appellant can be 

excluded on the basis of the conviction which occurred subsequent 

to his application for admission to the United States. On this issue, 

we believe that the decisions in Tulsidas T. Insular Collector of 

Customs, 262 U.S. 258, and Matter of 8--,7-1 (1956), are controlling 

and require the appellant's admission. 

In Tulsidas -v. Insular Collector of Customs, supra, the alien's 

contention was that he could acquire the status of a merchant after 

entry, but the Supreme Court rejected the contention and held 

that the status must exist at the time of the application for admission. This decision constitutes ample authority for the proposition 

that an alien's application for admission to the United States is 

to be determined on the basis of the facts existing when the application is made. The Service has not cited any judicial decision 

which would indicate that this is not the law. 

149 
In Matter of B—, supra, an alien applied for admission to the 

United States on August 28, 1950. His passport expired on August 

3, 1951, and the exclusion hearing took place in 1954. In that case 

the Service argued that the alien had not yet been admitted to the 

United States and that he was required to present a passport valid 

for at least 60 days beyond the period of his authorized admission. 

We specifically stated, "the application for admission must be determined on the basis of the facts as they existed on August 28, 

1950"—the date of the application—and our final conclusion was 

that, inasmuch as the alien's passport was valid at the time of his 

application for admission, the regulations did not preclude his 

admission merely because his passport thereafter expired (7 I. & N. 

Dec. at pp. 4 and 35). Our decision was approved by the attorney 

General on June 6, 1956, although the principal question considered 

by him was whether this Board had power to determine factual 

issues. 

The Service contends that admissibility must be determined on 

the basis of the facts existing at the time the alien "is examined for 

admission." On August 2, 1956, the examining immigration officer 

detained this appellant for a hearing before a special inquiry officer. 

When he was examined for admission on or about August 2, 1956, 

the appellant was admissible to the United States. His conviction 

occurred before his second 'examination for admission which took 

place before a special inquiry officer on January 23, 1957. Since 

the appellant was examined for admission on two occasions, the 

actual contention of the Service is that admissibility is to be determined on the basis of the facts existing at the time of the hearing 

before the specie inquiry officer. 

In its motion of August 21, 1959, the Service stated that we had 

said that admissibility must be determined as of the date the alien 

arrives. Actually, what we said was that admissibility was to be 

determined on the basis of the facts existing on the date the application for admission to the United States was made. This appellant arrived in the United States on July 30, 1956, and that was 

also the date of his application for admission. The distinction in 

phraseology is, nevertheless, important. Not only is it entirely 

logical that an application for admission to the United States should 

be determined on the basis of the facts existing when the application 

is made, but the statute itself indicates that the question of whether 

an alien is admissible or inadmissiblo is to bo determined as of the 

date of his application for admission. 

The Service has not pointed to a single statutory provision which 

states, or even indicates, that an alien's admissibility is to be determined on the basis of the facts existing when the alien is accorded a hearing before a special inquiry officer. As against the 

150 
lack of any specific statutory authority for the view of the Service, 

our conclusion that admissibility is to be determined on the basis 

of the facts existing at the time the alien applies for admission to 

the United States is supported by various provisions of the Immigration and Nationality Act. While we have not attempted to set forth 

all of the references, the following are illustrative. 

8 U.S.C. 1201(h) provides: "Nothing in this chapter shall be 

construed to entitle any alien, to whom. a visa or other documentation has been issued, to enter the United States, if, upon arrival 

at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law * * *" (emphasis 

supplied). In other words, even if an immigrant visa is inadvertently issued to an alien, he is not entitled to enter the United 

States if he is found inadmissible upon arrival at a port of entry. 

The statute does not say "if he is found inadmissible at the time of 

the exclusion hearing before the special inquiry officer" which is the 

position of the Service. 

The significance of the "application for admission" to the United 

States is attested to by the fact that it is a defined phrase in 

8 U.S.C. 1101(a) (4) and by its use in other sections. 8 U S.C. 

1181(a) provides: "No immigrant shall be admitted into the United 

States unless at the time of application for admission he (1) has a 

valid unexpired immigrant visa * * * and (5) is otherwise admissible under this chapter." Hence, not only the question of whether 

an immigrant is properly documented, but also the question of 

whether he is "otherwise admissible" is to be determined "at the 

time of application for admission." 

Other specific statutory provisions in which a particular fact or 

condition must exist at the time of the application for admission, 

or prior thereto, or during a particular period prior to the application for admission, appear in 8 U.S.C. 1181(c) ; 8 U.S.C. 1182(a), 

subparagraphs (14), (15), (20), (21), (26), and the second sentence 

of subparagraph (28) ; and 8 U.S.C. 1184(b). 8 U.S.C. 1361 provides: "Whenever any person * * * makes application for admission, 

* * * the burden of proof shall be upon such person to establish 

that he * * * is not subject to exclusion * * *." Subparagraph (9) 

of 8 U.S.C. 1182(a), which is the very paragraph under which it 

is claimed the appellant is inadmi.ssible, nontains an exception with 

respect to a crime committed while under the age of 18 and more 

than five years "prior to date of application for admission to the 

United States." 

The Service places its principal reliance on section 212(d) (5) 

of the Immigration and Nationality Act [8 U.S.C. 1182(d) (5)]. 

This statutory provision contains the authority for parole but has 

nothing to do with the determination of admissibility or inaimis151 
sibility—a subject which is covered by subsection (a) of U.S.C. 

1182 and other provisions. We previously discussed this matter on 

pages 3 and 4 of our order of July 31, 1959. The Service emphasized that part of 8 U.S.C. 1182(d) (5) which provides that, after 

termination of parole, the alien's case "shall continue to be dealt 

with in the same manner as that of any other applicant for admission to the United States." This language means only that an 

application for admission, which had riot been finally determined 

at the time the alien was paroled, will be resumed, following termination of the parole, at the same point at which the proceedings 

had been interrupted. This is borne out by the fact that the 

pertinent regulation (8 CFR 212.5) provides that, upon termination 

of parole, the alien "shall be restored to the status which he had 

at the time of parole." Hence, when this appellant's parole was 

terminated, he was restored to the status which he had on August 27, 

1956, the date of his parole. On that date, the appellant had not 

been convicted of the crime and he was not excludable under any 

provision of the immigration law. 

We turn now to the contention of the Service (motion of August 

21, 1959, page 2), that the Board's position "gravely jeopardizes 

the parole procedures of the Service, since its net effect is to accord the alien substantial benefits and rights he would not otherwise have, in violation of Leng May Ma v. Barber," 357 U.S. 185. 

It was also stated that the liberal exercise of parole "will be seriously impaired in view of the difficulties which can be encountered 

in effecting the alien's removal." This is also the contention numbered 3 on page 5 of the Service motion. 

The Service has not stated how Leng May Ma v. Barber, supra, 

could possibly be relevant in the appellant's case, nor in what respect there is a conflict between them. Our decision concerning 

the appellant did not, of course, contravene Leng May Ma v. Barber. 

In that case, the court held that an excluded alien, released on 

parole, was not eligible for a stay of deportation under section 

243(h) of the Immigration and Nationality Act [8 U.S.C. 1253(h)], 

and the court also affirmed its well-settled rule that an alien in 

custody pending determination of his admissibility or an excluded 

alien who was paroled 1, ac not made an "entry" into the United 

States. 8 U.S.C. 1253(h) is not involved in the appellant's case, 

and the statements which we made in our order of April 15, 1959, 

and in our order of July 31, 1959, show that we regard the appellant's physical presence in the United States from July 30, 1956, 

as not constituting an entry for immigration purposes and that he 

is still technically outside the portals of the United States. However, there is nothing in 8 U.S.C. 1182(d) (5) which would require 

that, because the appellant has not yet made an entry, the deter152 
urination concerning his admissibility ie to be made as of any date 

other than the date of his original application for admission to the 

United States. 

The Service also has not amplified its statement that the difficulties which can be encountered in effecting the alien's removal 

will seriously impair the liberal exercise of parole under .8 U.S.C. 

1182(d) (5). The case of this appellant and that of the alien in 

Matter of 2-172 (1944), appear to be the only cases in the 

last 15 years in which the Service has paroled an alien who was actually admissible to the United States when he applied for admission. 

Otherwise, the aliens who have been paroled into the United States 

were those who were inadmissible to the United States at the time 

of their applications for admission and, under our decision in this 

appellant's case, such an alien is to be excluded and deported after 

the termination of his parole. Hence, the decision here creates no 

obstacle to removal of such parolees but actually affirms the excludability of a parolee who was inadmissible at the time he applied for 

admission to the United Slates. 

The Service complains that under our ruling it must proceed 

against the appellant in a deportation proceeding, and that "there 

is a very grave question as to whether he would be deportable at 

all" notwithstanding his conviction for a serious offense as recently 

as December 17, 1956. Inasmuch as a deportation proceeding has 

not been instituted, we decline to express any opinion at this time 

as to whether the appellant would be subject to deportation. However, the theory that the Service can choose whether to proceed in 

an exclusion proceeding or in a deportation proceeding seems to be 

in conflict with Kwong Hai Chew v. Rogers, 257 F.2d 606 (C.A. 

D.C., 1958). Of course, if the statute authorized the exclusion of 

the appellant, we would have dismissed his appeal when the case 

was first considered by us on April 15, 1959. In Gegiow v. Uhl, 

239 U.S. 3, 9 (1915), it was said: "The statute by enumerating the 

conditions upon which the allowance to land may be denied, prohibits 

the denial in other cases." Since we hold that the statute does not 

authorize the exclusion of the appellant, there is not merit, of course, 

in the contention of the Service that he should be excluded because 

the Service might not be able to deport him 

In ito two motion°, the Service raised a number of extraneous 

issues. We considered them fully in our order of July 31, 1959, 

and we explained why these contentions have no relevance to the 

appellant's case. They need not be further discussed except that 

we deem it appropriate to state that there are certain inaccuracies 

in the motion of the Service dated August 21, 1959. For example, 

the Committee Report on the bill which became Public Law 85-559 

and Congressman Feighan's remarks do not indicate that section 

153 
of the bill restates the original Congressional intent. Another 

matter is that, while there are provisions for excluding aliens because of mental or physical defects or disabilities if they fall within 

the classes enumerated in subparagraphs (1) through (7) of 8 

U.S.C. 1182(a), the question of whether or not a disability is curable 

has no bearing on whether the alien is or is not admissible . 

The Service has not been able to sustain its position by any specific 

language in the Immigration and Nationality Act nor by the 

citation of any judicial decision. In view of the repeated statutory 

references to the "application for admission" mentioned above, particularly the provisions of 8 U.S.C. 1181(a) (5), supra, and on the 

authority of the two decisions previously mentioned which we consider controlling, we hold that the question of whether this appellant is admissible or inadmissible must be determined on the 

basis of the facts as they existed on July 30, 1956, the date of his 

application for admission to the United States. Accordingly, we 

adhere to our previous conclusion that this appellant is admissible 

to the United States. 

ORDER: It is ordered that our order of July 31, 1959, be and the 

same is hereby affirmed. 

It is further ordered that this case be referred to the Attorney 

General for review under 8 CFR 3.1(h) (1) (iii) in accordance with 

the request of the Service. 

BEFORE THE ATTORNEY GENERAL 

(January 3, 1961) 

ORDER: The decision of April 15, 1959, by the Board of Immigration Appeals in this case, as modified on July 31, 1959, which 

sustained the alien's appeal and directed his admission as a nonquota immigrant as of July 30, 1956, is disapproved. The order of 

the special inquiry officer excluding the alien by reason of his 

conviction of a crime involving moral turpitude is reinstated. 

This case is before me in accordance with the provisions of 8 CFR 

3.1(h) (1) for review of a decision by the Board of Immigration Appeals. 

The alien concerned was admitted for permanent residence in 

1947. Following his initial entry he made a number of trips 

abroad, returning the last time on July 30, 1956, in immigrant 

status, having secured nonquota documents on the basis of the 

United States citizenship of his wife who remained here during his 

absence. 

As a result of investigations conducted prior to his arrival date 

by Customs and Immigration authorities, information was on file 

which implicated him in large-scale diamond smuggling activities. 

154 
His co-concpirators, a brother and sister-in-law, had been arrested 

before his arrival for participation in these smuggling activities. 

He knew of their arrests and was also aware when he arrived that 

charges were pending against him in New York. The Service thus 

had good reason to believe that he was of a criminal class ineligible 

for admission and, therefore, did not admit him upon presentation 

of his documents. Instead he was turned over to Customs authoritiea, who arrested him on smuggling charges. After arraignment 

before a United States Commissioner, he was returned to the custody of the Immigration and Naturalization Service and thereupon 

was released on parole by the Service, in accordance with procedures 

authorized in section 212(d) (5) of the Immigration and Nationality 

Act, "pending completion of primary inspection." 

Subsequently, he pleaded guilty to the court of smuggling charges, 

and, on December 17, 1956, the court imposed a 15 -month sentence. 

He served his sentence at the Federal Correctional Institution in 

Danbury, Connecticut, where he was accorded a hearing on his immigration status on January 23, 1957. The special inquiry officer 

who heard his case found him excludable under section 212(a) (9) 

of the Immigration and Nationality Act, as an alien convicted of 

a crime involving moral turpitude, to wit, causing and procuring 

the smuggling of diamonds. Although the special inquiry officer 

found the alien inadmissible because of his conviction, the order of 

exclusion included perforce the alien's admission of the commission 

of a crime involving moral turpitude in view of his plea of guilty 

before the court on October 29, 1956. Aliens who admit the commission of crimes involving moral turpitude are excludable under 

the statute equally with aliens who have been convicted of such 

offenses. A plea of guilty in a criminal prosecution has long been 

regarded as an "admission" within the meaning of the immigration 

laws. Blumen v. Haff, 78 F.2d 833 (C.C.A. 9, 1935), cert. den. 296 

U.S. 644. 

The service upheld the decision of the special inquiry officer, but 

on appeal the Board reversed that decision and directed the alien's 

admission, finding that the criminal conviction as a result of a plea 

of guilty while he was on parole, even though it involved a crime 

committed prior to parole, did not affect his eligibility for admission. In the Board's view, eligibility of an alien must be determined 

as of the time of application for admission. In that view a criminal 

conviction as a result of an admission of guilt, even if based on a 

crime committed prior to the application, is not a part of the exclusion proceedings at all. 

The Service poinis out that the alien, when he applied for admission on July 30, 1956, had already caused and procured the 

smuggling of diamonds. The Service argues further that since the 

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alien was already known to the Immigration and Customs authorities 

to have been engaged in jewel smuggling, there was, on July 30, 

1956, substantial doubt about his eligibility for admission. Thus, 

the issue to be resolved arises out of the Boa rd's position and the 

Service's reliance upon admission of guilt in court which occurred 

after he was placed on parole, as justification for excluding him. 

I am disapproving the decision of the Board of Immigration Appeals and approving the Service's action ordering the alien's exclusion because (1) the procedure followed by the Service gave the 

alien the fullest and fairest possible opportunity to establish his 

eligibility ; (2) the latter seems to me to present the most reasonable 

interpretation of the wider Congressional intent in enacting the 

exclusion laws; and (3) the latter will permit continuation of the 

long-standing administrative practice of utilizing parole in certain 

hardship cases. 

First, it cannot be argued that the alien in this ,case was placed 

on parole in the expectation that his conduct while on parole would 

provide a basis for excluding him. On the contrary, his criminal 

acts had been accomplished and it was in the belief that he was 

of a criminal class and therefore ineligible for admission that the 

Service placed him on parole. One of two possible methods was 

thus selected for determining his ultimate eligibility. A course of 

action, other than parole, would have been the holding of an administrative hearing based on information possessed by the Immigration and Customs authorities. Such a hearing could have 

been held immediately following his initial application. If that 

bearing had been held the alien's ineligibility might have been 

established, assuming that an admission of crime or of the elements 

thereof could have been elicited. Or possibly the alien, because of 

his testimony, might have been subjected to a perjury charge (also 

warranting exclusion if conviction ensued), or he might have attempted to assert a claim of privilege under the Fifth Amendment. 

Notwithstanding these possibilities, the Service in the exercise 

of its judgment elected to follow the first course of action and 

released the alien on parole. His judicial trial ensued. To the 

extent that he was not tried in an administrative hearing nor 

called upon to make an admission against interest prior to trial in 

the courts, the alien was favored by this course of action. The 

Service withheld its sanctions and he was given the benefit of his 

day in court in full judicial proceedings. Tf he had been acquitted 

in the criminal case, he, of course, would have been admitted. Thus, 

I believe that the procedure followed by the Service gave the alien 

the fullest and fairest possible opportunity to establish his eligibility. 

Second, the narrow question of whether Congress intends that an 

alien's qualification for coming into the United States shall be 

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determined at the time he first makes application for admission, 

when he may appear to be qualified so far as his documents alone 

are concerned, or whether this determination may be made after he 

has been paroled and accorded a hearing as a result of which he 

can be denied an entry because of defects based on facts occurring 

in large part before parole and not revealed by his documents, is 

one on which W.e find little direct help, either in the legislative 

history of the statutes or in the cases which have been decided in 

the courts. It is abundantly clear, however, that Congress intended 

to deny admission to aliens whose conduct brings them within the 

criminal classes. Additionally, the legislative history of the parole 

provisions of section 212(d) (5) of the Immigration and Nationality 

Act reveals that they were enacted in compliance with a recommendation by the Attorney General that he be given the necessary 

authority to parole aliens for purposes which are in the public 

interest. Among the latter was "purposes of prosecution" (Senate 

Report No. 1137, 82d Cong., 2d Sess., pp. 12 -13)--the very purpose 

for which parole was here used. 

Furthermore, to conclude, as decided by the Board, that the 

alien's status cannot be questioned except to disqualify him on 

the date of his application for admission is to reduce in large 

measure the usefulness of parole. By its very terms section 212 

(d) (5) requires that the termination of parole be followed by the 

alien's return to custody, "to be dealt with in the same manner 

as * * * any other applicant for admission to the United States," 

and exclusion proceedings alone are appropriate following termination of parole (Leng May Ma v. Barber, 357 U.S. 185). 

Since Congress meant for parole to be used for purposes of prosecution, and since after parole the alien is to be dealt with only 

in exclusion proceedings and "as any other applicant for admission," 

it is my view that the criminal conviction growing out of prosecution during parole for acts committed prior to parole, is full justification for excluding the alien upon conclusion of his parole. I do 

not believe Congress intended that a plea of guilty made during 

a trial be ignored when following parole the applicant is thereafter 

heard in exclusion proceedings. 

A third aspect influencing my decision is continuation of the 

long-standing administrative practice of utilizing parole in certain 

hardship cases. The Commissioner has pointed out that the majority of persons paroled into the United States under section 

21,2(d) (5) are inadmissible at the time of arrival and of these most 

are inadmissible because of curable physical disability. These are 

permitted in hardship cases, such as when they are joining relatives who are residents here, to enter in a parole status and if a 

cure is effected in this country and the disability removed, they are 

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admitted. Under the Board's ruling it would no longer be possible 

to adjust hardship cases in this manner because the aliens in these 

hardship cases would be excludable at the time they arrived. I am 

convinced that. it is important to preserve the humane practice of 

permitting adjustment in worthy cases. 

In reinstating the decision of the special inquiry officer in this 

case, I conclude that the procedure followed by the Service was 

eminently fair and just in that it afforded the alien full opportunity 

to prove his eligibility for admission. 

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