BARNES

Interim Decision #1404

MATTER OF BARNES

In SECTION 212(g) Proceedings
A-13289746

Decided by Acting Officer in Charge Jtay 6,1964
Approved by Regional Cornmiaeioner July 23,1964
Application for waiver, pursuant to section 212(g), Immigration and Nationality
Act, as amended, of excludability under section 212(a) (9) of the Act is denied,
in the exercise of discretion, in the case of an alien who is at liberty under
a sentence-imposed, 3-year good-behavior bond, without prejudice to recon-
sideration upon the expiration date of the bond required by the sentence
imposed.

The applicant is a male, native of Barbados, subject of Great Britain,
burn in Bridgetown on April 23, 1945. He has never been married
and has no children. His parents, Frank Vernon Barnes, A13 253 720,
and Agnes Barnes, A13 253 643, are aliens who have been lawfully ad-
mitted to the United States for permanent residence. Satisfactory
documentary evidence of their status and of his relationship to them
has been presented.
The applicant has never been in the United States and was found
by the consular officer to be eligible for a visa for permanent residence
in all respects except excludability under section 212(a) (9) of the
Immigration and Nationality Act.
In testimony before an officer of this Service on March 11, 1964, at
Bridgetown, Barbados, the applicant testified that his arrest was the
result of taking $3,800.00 which had been entrusted to his care by the
Canadian Imperial Bank of Commerce in Bridgetown. He stateA
that at the time he was mixed up with a young woman employed a:,
the bank and he took the money in order that they could run away to
Trinidad. As a result of this act he was tried as an adult, found
guilty and released under a personal bond of $1,000.00, to be of good
behavior for a period of three years. At the time of his conviction
the applicant was 16 years, 7 months of age. He testified that he has
never committed any other act or offense which might render him in-
admissible to the United States or subject him to criminal prosecution.

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The applicant's mother was interviewed by a Service officer on Oc-,
tober 29, 1963, at New York City, New York. She corroborated her
son's statement relative to the incident which now bars him from the
United States. She stated that the real fault lay with a girl some-
what older than her son who encouraged him to steal the money and
run off with her. She testified that the absence of her son was an ex-
treme hardship to her because of the emotional factor involved. She is
of the opinion that he needs to be with her and her husband in order
that they may help him and give the benefit of their affection and
guidance. If he is not permitted to come to the United States she
says that she and her husband will have no alternative but to return
to Barbados and be subject to the humiliation of living among people
aware of her son's crime.
The applicant's father was interviewed by a Service officer on March
11, 1964, in Bridgetown, Barbados. He testified that until recently
he was captain of his own vessel and the applicant worked for him
aboard the vessel up to November of 1963. He further testified that
he believed that he and his wife can keep the applicant straight and
make a good citizen out of him. He sincerely believes the boy has
learned his lesson and will not get into any more trouble. The ox
treme hardship to the lawful alien parents as contemplated by the
statute has been established. -
The crime committed by the applicant occurred November 1, 1961.
The sentence imposed placed him under bond to maintain good be-
havior for a period of three years which will expire December 12, 1964.
If he fails to maintain his good behavior until that date, a breach of
the conditions of the bond will result, which could result in forfeiture
of the collateral and imprisonment.
Unless the applicant, by his behavior over a reasonable period of
time, had demonstrated that a waiver of his excludability is merited as
a matter of discretion and that his admission would not be contrary to
the national safety, security and welfare of the United States, the
waiver may not be granted. It must be recognized that a bond, pro-
bation, parole or similar court-imposed disability places an extraor-
dinary burden upon the sentenced individual. Thus, in Jones v. 0 un-
niagArt/m, 371 U.S. 936 (1963) the United States Supreme Court stated
that "Conditions of parole significantly restrain petitioner's liberty to
do those things in this country free men are entitled to do." The
Court held that a person on parole, though physically free, is under
strict control and is constantly threatened with return to custody for
minor infractions of the conditions of parole.
The applicant in the instant case is at liberty under a sentence-
imposed bond, which appears to be a somewhat lesser restraint than
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parole. Nevertheless the threat of imprisonment for any breach of
the conditions of the bond hangs heavily over his head. While it
would be unreasonable to discount completely the good behavior of
the applicant during the period for which. he has been under that
restraint, it is not unreasonable in this case to await the lifting of the
restraint imposed by sentence, in effect permitting the sentence to run
to completion, before exercising the discretion favorably in his behalf.
The applicant's behavior has .been good since the commission of the
crime which renders him excludable. However it is concluded that,
as a matter of discretion, the waiver of excludability should not be
granted prior to December 12, 1964, the expiration date of the bond
required by the sentence imposed upon him. The application will be
denied without prejudice to reopening and reconsidering the appli-
cation on our own motion subsequent to December 12, 1964. The case
will be certified to the Regional Commissioner, Richmond, Virginia,
in accordance with his request.
ORDER: It is ordered that the application of Vernon Michael
BARNES for a waiver of excludability under paragraph (9) of sec-
tion 212(a) of the Immigration and Nationality Act, be and is DE-
NIED pursuant to the authority contained under section 212 (g) of
.

the Immigration and Nationality Act.
It is further ordered that this denial be without prejudice to reopen-
ing and reconsidering the application subsequent to December 12, 1964.
It is further ordered that this case be certified to the Regional Com-
missioner, Southeast Regional Office, Immigration and Naturaliza-
tion Service, Richmond, Virginia, in accordance with his request.

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