Three BIA Decisions on Deportability for Failure to Register an Address

 

Introduction

On March 2, 1954, the Board of Immigration Appeals (BIA) issued a published decision in Matter of B-, 5 I&N Dec. 692 (BIA 1954). Matter of B- concerned the former section 241(a)(5) of the Immigration and Nationality Act (INA), which renders deportable an alien who fails to comply with the provisions of (former and current) section 265 of the INA, which requires aliens to notify the Government of his or her address (in less otherwise exempted). Specifically, the case analyzed the limited exception from deportability under section 241(a)(5) for an alien whose failure to report an address as required was “reasonably excusable or was not willful.” The current section 237(a)(3)(A) of the INA contains identical language to former section 241(a)(5), meaning that despite its age, Matter of B- remains a relevant decision in the context of the limited exception to deportability contained in section 237(a)(3)(A). You may learn about section 237(a)(3)(A) generally by reading the relevant section of our article on section 237(a)(3) [see section].

Matter of T- in

In this article, we will examine the Matter of B- decision in its entirety. Furthermore, we will also briefly examine the Board's decisions the same limited exception from deportability under section 241(a)(5) in Matter of M-, 5 I&N Dec. 216 (BIA 1953) and Matter of T-, 5 I&N Dec. 459 (BIA 1953). In the conclusion, we will summarize what these decisions mean for section 237(a)(3)(A) today. However, as we discussed in our general overview of section 237(a)(3)(A) in our main article on the deportability grounds in section 237(a)(3), section 237(a)(3)(A) is a seldom-used deportability provision. This is perhaps evinced by the fact that the three most relevant BIA precedents on the issues were published over six decades ago.

Overview: Matter of B-, 5 I&N Dec. 692 (BIA 1954)

The respondent in Matter of B- was a native of Jamaica and subject of Great Britain. He had last entered the United States in 1950 as a business visitor to perform agricultural labor in the country (under provisions of the Immigration Act of 1924). The respondent did not contest that he was deportable for having abandoned his status. However, he did contest his deportability under former section 241(a)(5) as an alien who had failed to comply with the address notification requirements of section 265. The issue was significant in Matter of B- because it controlled whether the respondent would be eligible for a grant of voluntary departure.

Former section 241(a)(5), and current section 237(a)(3)(A), require a respondent to comply with requirements under section 265 of the INA to report a an address. The Board reproduced the respondent's testimony regarding his failure to register at Id. at 693:

  • Q. Did you report your whereabouts to the Commissioner of Immigration and Naturalization at Washington, D. C., under the address report program within 10 days of January 1, 1951 and 1952, and within 30 days of January 1953, as required by the laws of the United States?
  • No.
  • Q. Why have you failed to comply with this provision of law?
  • I didn't hear about it until this year.
  • Q. Then why didn't you do it then?
  • (Alien remains silent.)
  • Q. Did you know about it during the first 30 days of January 1953?
  • Yes.
  • Q. Why didn't you do it?
  • I was afraid of being picked up.
  • Q. By the immigration officers?
  • Yes.
  • Q. Was that the only reason why you failed to report your whereabouts during the first 30 days of January 1953?
  • Yes.

The respondent conceded that he had in fact not complied with the address reporting requirements in effect at the time on three separate occasions. Thus, the question was whether the respondent's failure fell under one of the two exceptions set forth in former section 241(a)(5) and current section 237(a)(3)(A). The statute stated that an alien could be exempt from deportability under former section 241(a)(5) if he or she proved established to the satisfaction of the Attorney General that the failure to register was:

  • Reasonably excusable; or
  • Not willful.

Before assessing whether the respondent had established that his particular failures to register were not willful, the Board first worked to define the terms. It noted that section 241(a)(5) was a new provision added to the immigration laws, and that it had no antecedent in prior immigration statutes. The Board further noted that the exception meant that the failure to report an address would not, in every case, render an alien potentially subject to deportability under section 241(a)(5). However, the Board stated that “reference to the legislative history of the Immigration and Nationality Act yields no definition of [“reasonably excusable or not willful”].” Accordingly, the Board stated that the terms should be given their “plain and ordinary meaning, as used in the context in which they appear.”

First, the Board defined “willful.” The 4th Edition of Black's Law Dictionary (page 1773) defined “willful” as “intending the result which actually comes to pass; designated; intentional; not accidental or involuntary.” The Board then quoted from the decision of the United States Court of Appeals for the District of Columbia Circuit in Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938) [PDF version], which defined “willful” as follows: “Generally, [willful] means no more than that the person charged with the duty knows what he is doing.”

The Board then defined “reasonably excusable” as “connot[ing] an act or omission which is moderately or sufficiently justifiable.”

The Board noted that the two exceptions — “reasonably excusable or not willful” (emphasis added) — were set forth in the disjunctive. This means that an alien could seek to establish that he was exempt from former section 241(a)(5) by showing that the failure to report an address was either “reasonably excusable” or “not willful.” In order to prove that a failure to report an address was reasonably excusable or not willful, the Board stated, “[t]he existence of exculpatory circumstances must be established by credible evidence sufficiently persuasive to satisfy the Attorney General, in the exercise of his reasonable judgment, considering the proof fairly and impartially.”

Having defined the pertinent terms and dissected the structure of former section 241(a)(5), the Board then applied its findings to the instant case.

The Board explained that the respondent's counsel had conceded that his failure to report his address had been willful, but counsel argued that the failure was reasonably excusable. His argument was based on the claims that respondent's wife was ill; that he and his wife were trying to accumulate $500 to furnish as bond so that he could surrender himself voluntarily to immigration authorities; and that his failure to report his address in 1953 was due to his desire to avoid complications to his wife were he to be apprehended after submitting his address report.

The Board observed that the record indicated that “the sole reason [for the failure of the respondent to report his address] was his desire to avoid arrest by immigration authorities.” The Board cited to Matter of M-, 5 I&N Dec. 216 (BIA 1953), where it had found that a respondent was deportable under similar circumstances (see next section). The Board concluded that counsel's arguments on behalf of the respondent's claim that the failure to report was reasonably excusable was unsupported by the record. Accordingly, it saw no reason to diverge from its precedent in Matter of M- and it found that the respondent's failure to report his address was not “reasonably excusable.”

Overview: Matter of M-, 5 I&N Dec. 216 (BIA 1953)

Matter of M-, 5 I&N Dec. 216 (BIA 1953), is a brief, two-page decision the Board entered on May 6, 1953. The issue was nearly identical to that presented in Matter of B- one year later. In this case, a native and citizen of Italy who had last entered the United States as a stowaway contested a deportability charge under former section 241(a)(5) of the INA. The respondents stated that he had filed notification of his address, as required, within the first 10 days of 1951. However, the respondent conceded that he had then failed to file notification of his address during the corresponding periods in both 1952 and 1953.

The respondent initially stated that his reason for failing to file the notifications had been his fear that doing so might result in his being apprehended by immigration officers. However, during the course of his hearing, he abandoned that claim and instead stated that he had failed to register because he had wrongly believed that his registration in 1951 had satisfied the applicable requirements because he had remained at the same address. In his immigration proceedings, the Board found, [t]he hearing officer apparently attached greater credibility to the first reason assigned by the respondent for his failure to register…”

The Board ultimately agreed with the finding and decision of the hearing officer, concluding that “the respondent has not established that such failure to register was reasonably excusable or was not willful.” For this reason, the Board sustained the decision that the respondent was removable under former section 241(a)(5).

Overview: Matter of T-, 5 I&N Dec. 459

The final former section 241(a)(5) decision that we will examine is Matter of T-, 5 I&N Dec. 459 (BIA 1953). Matter of T- was decided on September 25, 1953, and like Matter of M-, is a brief, two-page decision.

Matter of T- concerned an alien who was deportable as a stowaway. Similarly to the respondents in Matter of M- and Matter of B-, the respondent had failed to notify the Attorney General of his address in 1953. The respondent stated that he was aware of the requirement but had failed to register due to his fear of being apprehended by immigration authorities.

The Board explained that the respondent's failure to register did fall under the deportability ground found in former section 241(a)(5). However, in Matter of T-, the respondent had not actually been charged with deportability under section 241(a)(5), much less found to be deportable under that provision. Instead, the special inquiry officer determined that the respondent was statutorily ineligible for voluntary departure “as if the alien had been ordered deported [under section 241(a)(5)].”

The Board concluded that the special inquiry officer erred in finding that the respondent was ineligible for voluntary departure based on his failure to register in compliance with section 265. The Board stated that an alien could only be found ineligible for voluntary departure based on former section 241(a)(5) if the alien was actually charged with deportability under the provision and found to be deportable, regardless of the underlying facts of the alien's failure to register. Accordingly, the Board ordered proceedings to be reopened for further appropriate proceedings.

Citations to Matter of T- in Other Cases

Interestingly, Matter of T- has been cited in seven subsequent decisions, some relatively recent, for its conclusion that an alien must be charged and found deportable in order to suffer the consequences of a deportability provision. The Board's most recent citation was in Matter of Jurado, 24 I&N Dec. 29, 31 (BIA 2006) [PDF version], wherein it stated that “[w]e have long held that an alien must be charged and found deportable where Congress has used the phrase 'is deportable.'”

In Matter of Serna, 20 I&N Dec. 579, 579 n.1 (BIA 1992) [PDF version], the Board noted that while the respondent in that case could have been charged under former section 241(a)(5), he could not be found to be ineligible for voluntary departure on that basis because he had not, in fact, been charged and found deportable on this ground.

However, in Matter of Melo, 21 I&N Dec. 883, 885 n.2 (BIA 1997) [PDF version], found that Matter of T- did not control in the context of the Transition Period Custody Rules (pertaining to bond hearings).

Conclusion

The three decisions from 1953 and 1954 addressing former section 241(a)(5) of the INA provide guidance on how the current section 237(a)(3)(A) should be read and applied. The most significant of the three decisions with respect to section 237(a)(3)(A) is Matter of B-, which defined the terms outlining the exception to section 237(a)(3)(A) and made clear that the desire to avoid apprehension does not establish that a failure to register an address is “reasonably excusable.”

However, as we noted in our separate overview of the subject, section 237(a)(3)(A) is a relatively uncommon deportability charge. The United States Citizenship and Immigration Services (USCIS) states at OI 265.1(a) [PDF version] that “[f]ailure by an alien to comply with the reporting requirements of section 265 of the [INA]… shall not normally serve as the sole basis for initiating prosecution or deportation proceedings.” Furthermore, as Matter of T- made clear, an alien cannot face consequences associated with being found deportable under section 237(a)(3)(A) unless he or she is actually charged and found deportable under the provision, notwithstanding whether he or she failed to provide requisite address notification.

Nevertheless, an alien should always ensure that he or she complies with all applicable immigration laws and regulations, including address notification requirements. Failure to comply with immigration laws may lead to any number of charges, including civil or criminal charges under the INA for failure to register an address. An alien with questions about immigration laws should consult with an experienced immigration attorney.