HRONCICH

11 I. & N. Dec. 193

• Court: Board of Immigration Appeals
• Decided: July 1, 1962
• Docket: 1473
• Status: Published

Opinion

Interim. Decision #1473

MASTER or Hnozgolou

. In Deportation Proceedings A 8196259 -

Deckled by Board December 26, 1961 and March 6, 1962 (1) Action on the motion for termination of the proceedings to enable -respond- ent to apply Yor naturalization will be held in abeyaneo pending a prelimi- nary determination by the Service of eligibility for naturalization. (2) Since respondent has been found eligible for naturalization under section 829, Immigration and Nationality Act, except for the bar contained in section 318 of the 41.et, the outstanding order and 'warrant of deportation are with- drawn and the deportation proceedings terminated fox the limited and sole purpose of permitting him to proceed with the dual hearing on his petition for naturalization. ' - CHANGE: Warrant: Act of 1924—No immigrant visa.

'BEFORE THE BOARD This case comes forward. pursuant to counsel's motion submitted at the New York office of the Service on November 9, 1961, requesting the withdrawal of the 'outstanding order and warrant of deportation and further requesting -that the pioceeditigs be reopened. to permit the respondent an opportunity to petition' for naturalization pur- suant to the provisions of section 329 of the Immigration and Na- tionality Act, as amended. Counsel asserted that a petition for na- turalization was filed with the District Director at New York, New York but action thereon was deferred. inasmuch as section 318 of the Act bars naturalization if there is outstanding a final finding of deportability in a deportation. proceeding. The respondent, a 30-year-old male, native and, citizen of Yugo- slavia, has resided. continuously in the United States since last en- tering at New York, New York on or about September 1, 1950 as a nonimmigrant crewman, it which time it his intention to seek employment and remain permanently in this country. "Upon con- clusion of the deportation hearing held at New York, New York on Noveinber 1, 1951, the hearing officer found the respondent subject

193 Interim Decision #1473 to deportation on the charge designated above and directed that he be deported from the United States pursuant to law on the charge stated in the warrant of arrest. The Assistant Commissioner, Ad- judications Division, in a decision dated April 2, 1952 granted the respondent permission to depart voluntarily from the United States, in lieu of deportation and directed that if he failed to depart when and as required he be deported pursuant to law on the charge stated in the warrant of arrest. Counsel in support of his motion submitted a self-explanatory affidavit subscribed and sworn to by the respondent and a photostatic copy of a certificate showing that he was separated from the armed forces of the United States on July 16, 1954 and was honorably dis- charged therefrom on July 1, 1960. The Service representative on motion asserted that counsel's mo- tion is premature inasmuch as the respondent's petition for natural- ization is now being considered and processed by the New York office of the Service for the purpose of determining whether or not the Service is disposed to recommend to the court that the petition be granted. Counsel and the Service representative in oral argument admitted they had no objection to having action on the instant mo- tion held in abeyance pending the outcome of the interlocutory pro- ceedings by the New York, New York office of the Service on the 'respondent's petition for naturalization under section 329 of the ' Immigration and Nationality Act. Accordingly, the following order will be entered. ORDER: It is ordered that action on the motion be held in abey- ance pending the outcome of the preliminary, proceedings on the alien's petition for naturalization under section 329 of the Immi- gration and Nationality Act. BEFORE THE BOARD This case comes forward pursuant to the respondent's motion re- questing the withdrawal of the outstanding order and warrant of deportation and further requesting that the proceedings be reopened to permit the respondent an opportunity to petition for naturaliza- tion pursuant 'to the provisions of section 329 of the Immigration and Nationality Act, as amended. The respondent, a 32-year-old male, native and citizen of•Yugoslavia, has had continuous residence in the United States since his last admission at New York, New York on or about September 1, 1950 as a nonimmigrant crewman. Deportability has been established under the Immigration Act of 1924, as amended, no immigrant visa.

194 Interim Decision #1473 According to information available in the file the respondent filed a petition for naturalization and has been found. eligible there- for under the provisions of section 329 of the Immigration and Nationality Act. When this case was last before this Board on December 26, 1961,•we directed that action on the motion be held in abeyance pending the outcome of the preliminary proceedings on the alien's petition for naturalization under section 329 of the Im- migration and Nationality Act. According to information available in the file the Service has found the respondent eligible for natural- ization under the provisions of section 329 of the Immigration and Nationality Act. Tho Service has indicated that they will make a favorable recommendation to the court if this Board terminates the deportation proceedings. After carefully 'considering all the evidence of record, it is our considered. opinion that the respondent should be afforded an op- portunity to prosecute his petition for naturalization pending in the United States District Court, Eastern District, Brooklyn, New York. In the event the respondent's petition for naturalization is denied, the existing record will constitute a record for deportation. purposes. ORDER: It is ordered that the motion be granted. It is further ordered that the outstanding order and warrant of deportation be withdrawn and the deportation proceeding termin- ated for the limited and sole purpose of permitting the alien to proceed with the final hearing on his petition for naturalization under section 329 of the Immigration and Nationality Act, present- ly pending in the United States District Court, Eastern District, Brooklyn, New York. It is further orderi3d in the event the alien's naturalization is de- nied, the order and warrant of deportation be reinstated and ex- ecuted.