Imagini ale paginilor
PDF
ePub

entry by reason of the fraud specified in section 212(a)(19). In my opinion the respondent is within this language and not barred from relief by the holding in Reid. In relying on section 241(c) the Service has, to all intents and purposes, established inadmissibility under section 212(a)(19) as shown by post-entry conduct. The waiver under section 241(f) is mandatory if he is now validly married to a United States citizen as claimed. I would therefore remand and reopen for proof of the marriage.

Louisa Wilson, Member, Dissenting:

I concur in the dissent of Board Member Irving A. Appleman.

MATTER OF WINKENS

In Deportation Proceedings

A-11953287

Decided by Board September 9, 1975

Respondent gained lawful permanent resident status through his parents upon admission to the United States in 1959 when he was 4 years of age. In 1968, when he was 14 years of age, his parents abandoned their residence in this country and returned to Germany, taking him with them. The abandonment of their permanent resident status is imputed to respondent, who was subject to their custody and control. Hence, he cannot be considered a lawful permanent resident returning from a temporary visit abroad upon his return to this country on December 19, 1972; at that time he made an "entry" within the meaning of section 101(a)(13) of the Immigration and Nationality Act. [Matter of Bauer, 10 I. & N. Dec. 304, distinguished.]

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor-remained longer.

ON BEHALF OF RESPONDENT:

Douglas P. Haffer, Esquire

San Francision Neighborhood Legal

Assistance Foundation

2701 Folsom Street

San Francisco, California 94110

ON BEHALF OF SERVICE:

Paul C. Vincent

Appellate Trial Attorney

Bernard J. Hornbach
Trial Attorney

This is an appeal by the Trial Attorney, on behalf of the Immigration and Naturalization Service, from the immigration judge's order terminating proceedings. The appeal will be sustained, and the proceedings remanded for consideration of the respondent's application for adjustment of status pursuant to section 245 of the Act.

The respondent is a native and citizen of Germany, who was admitted to the United States as an immigrant on September 25, 1959, at which time he was 4 years of age. He remained in the United States with his parents until 1968, when they decided to move back to Germany and took him with them. At that time he was 14 years of age. He testified that he had not wanted to leave but that "...there was no way I could stay by myself" (Tr. p. 5). He returned to the United States, at the age of 18, on December 19, 1972, classified as a nonimmigrant visitor, authorized to remain until March 15, 1973. He has stayed thereafter and is charged with overstaying as a nonimmigrant.

The immigration judge terminated the proceedings, in a decision dated October 24, 1974, in reliance upon our decision in Matter of Bauer, 10 I. & N. Dec. 304 (BIA 1963). Matter of Bauer, supra, does not govern this case. Unlike Bauer's parents, this respondent's parents did not retain their United States residence when they left this country in 1968. The abandonment of their lawful permanent resident status is imputed to the respondent, who was subject to their custody and control. He had gained lawful permanent resident status through them, and he lost it when they abandoned their residence and took him with them. The respondent made an "entry" when he arrived in the United States on December 19, 1972, and, although once lawfully admitted for permanent residence, he cannot be considered an alien lawfully admitted for permanent residence who is returning from a temporary visit abroad. 1ORDER: The appeal is sustained and the record remanded for further proceedings consistent with the above decision.

1 Board member Irving A. Appleman abstained from consideration of this case.

MATTER OF RINA

In Deportation Proceedings

A-13197621

Decided by Board September 12, 1975

(1) Where respondent, travelling by automobile upon his return to the United States on November 15, 1969 after a trip to Canada, passed at least two signs giving directions to the nearest immigration inspection station, and it was not until respondent's car had passed the second sign and the last clear chance to proceed to the inspection station that the car was stopped by a Service Border Patrol Agent, the stop occurred at the "functional equivalent" of the border within the scope of Almeida-Sanchez v. United States, 413 U.S. 266 (1973), and United States v. Brignoni-Ponce, 422 U.S. 873 (1975). (2) Since respondent's car was travelling slowly as if unsure of the area; there were several people in the car; the license plate did not bear the local county prefix; the road was infrequently travelled by cars other than those of people who lived there, and the car passed by the last clear point to proceed to the inspection station, the Border Patrol Agent had "reasonable suspicion" to believe that respondent's car might contain aliens illegally in this country within the ambit of United States v. Brignoni-Ponce, supra. (3) The doctrine of collateral estoppel prevents respondent, who was convicted of entry without inspection under section 275 of the Immigration and Nationality Act, from relitigating the illegal entry in subsequent deportation proceedings. [Matter of Rina, 15 I. & N. Dec. 346 adhered to.]

[ocr errors]

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection. ON BEHALF OF RESPONDENT: Leonard L. Finkel, Esquire

515 Madison Avenue

New York, New York 10022

The respondent moves for reconsideration of our decision dated June 11, 1975, in which we dismissed his appeal from a decision by the immigration judge ordering his deportation to Italy on the charge contained in the order to show cause.1 Oral argument and a stay of deportation have also been requested. The requests and the motion will be denied.

Initially, counsel contends that reconsideration is warranted in light of the Supreme Court's decisions in Almeida-Sanchez v. United States,

1 That decision is Matter of Rina, Interim Decision No. 2396 (BIA 1975).

413 U.S. 266 (1973), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574 (1975). Both of these cases were decided long after the vehicle stop at issue in the present case took place in 1969. The Supreme Court has ruled that Almeida-Sanchez does not have retroactive effect. United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313 (1975); Bowen v. United States, 422 U.S. 916, 95 S. Ct. 2569 (1975). We are satisfied that the same rationale would be applied to the decision in United States v. Brignoni-Ponce, supra. Moreover, the vehicle stop and interrogation in the present case were proper even under the standards set forth in Almeida-Sanchez and Brignoni-Ponce.

The record shows that on November 15, 1969, the respondent admittedly was returning to the United Staes from a trip to Canada. At about 7:30 p.m. that evening, after darkness had fallen, a Border Patrol Agent in the vicinity of Cook's Line, New York, was alerted to the presence of the respondent's car by the tripping of an electronic device posted on Cook's Line Road, a lightly traveled back road leading from the Canadian border (Tr. p. 85). The agent proceeded to Earlville Road, an adjoining road accessible from the border only by way of Cook's Line Road, and parked his car (Tr. pp. 85-86, 107-08). There were no other cars in sight (Tr. p. 86). As the respondent's car passed by, the agent noted that it was going slowly and that the driver was proceeding as if he was unsure of the area (Tr. p. 103). The agent pulled out behind the vehicle and noted that there were several people in the vehicle and that the license plate did not have the local county prefix (Tr. p. 88). The agent also testified that the road very infrequently was traveled by cars other than those of people who lived there (Tr. p. 88).

The respondent's car passed at least two signs giving directions to the nearest immigration inspection station (Tr. p. 105). It was not until the respondent's car had passed the second sign, and the last clear chance to proceed to the inspection station, that the car was stopped by the agent (Tr. p. 106). The agent indicated that he would not have made the stop had the respondent's vehicle proceeded to the inspection station (Tr. p. 106). He also indicated that an additional reason for waiting to stop the respondent's car was that he was outnumbered by the occupants of the car and that the Earlville Road would not have been a safe place to make a stop if there was any chance of a confrontation involving force (Tr. pp. 90, 106).

We believe that the foregoing facts would justify a finding that the stop occurred at the "functional equivalent" of the border within the scope of Almeida-Sanchez. In addition, although further justification would not be necessary at the "functional equivalent" of the border, the Border Patrol agent undoubtedly had a "reasonable suspicion" that the respondent's vehicle contained aliens who might be in the country illegally. See United States v. Brignoni-Ponce, supra. Even assuming,

« ÎnapoiContinuă »