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cluded in this proceeding from attacking the validity of the executed order and warrant of deportation. This disposes of counsel's contention concerning the first lodged charge with the exception of his argument that the respondent did not make an "entry” within the meaning of the immigration laws when he returned to the United States in March 1956. We turn now to this latter contention which is also asserted as a reason why the other three lodged charges should not be sustained.
Counsel's argument is that the respondent's departure from the United States on February 8, 1955, was involuntary because he was deported at that time and that his return in March 1956 should, therefore, not be considered as constituting an entry. This is exactly the same argument that was advanced and rejected by this Board in Matter of S- > Supra (3 I. & N. Dec. at pages 93–94). The position of the Board was passed upon and upheld in the subsequent judicial proceedings in the same case—United States ex rel. Steffner v. Carmichael, supra.
In connection with this contention, counsel also cited Delgadillo v. Carmichael, 332 U.S. 388 (1947), in which the court held that an alien whose presence in the foreign country occurred because his vessel had been torpedoed did not make an "entry” upon his return to the United States. Counsel also stated that the respondent's position was made "crystal clear” by the decision in Schoep8 v. Carmichael, 177 F.2d 391 (C.A. 9, 1949). While the Delgadillo decision did establish that not every arrival of an alien in the United States constitutes an "entry” for immigration purposes, the case of Schoep8 is not of assistance to the respondent since that alien was held to have made an entry upon returning from a visit of a few hours in Mexico.
Counsel devoted a considerable part of his brief to his argument that the respondent did not make an entry and he cited a number of judicial and administrative decisions. The Immigration and Nationality Act, which became effective on December 24, 1952, contains a definition of the term "entry" [8 U.S.C. 1101(a) (13], but the word had not been defined in the prior immigration laws. All but one of the decisions cited by counsel had been rendered prior to December 24, 1952. The one exception is Savoretti v. United States ex rel. Pincus, 214 F.2d 314 (C.A. 5, 1954), but even there the deportation proceeding had been instituted prior to December 24, 1952, and the case was decided under the prior legislation [section 19(a) of the Immigration Act of 1917; 8 U.S.C. 155(a), 1946 ed.].
Since the word "entry” was defined in the Immigration and Nationality Act, it is to that definition we must look and not to the judicial interpretation of "entry" in the cases decided under the prior legislation. We specifically referred to this definition in our order
of March 3, 1959, but counsel ignored this. 8 U.S.C. 1101 (a) (13) provides as follows:
The term "entry" means any coming of an alien into the United States, from a foreign port or place * *, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place * * * was not intended or reasonably to be expected by him or his presence in a foreign port or place
was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.
The foregoing definition does, of course, take into consideration the judicial construction of the word "entry” which had been announced in the Delgadillo and other cases but the term is defined with more exactness. First, it is provided that any coming of an alien whether voluntarily or otherwise shall constitute an entry. Then, an exception is made for an alien having a lawful permanent residence if he proves that his departure to a foreign place was not intended or that his presence in a foreign place was not voluntary. Finally, it is provided that this exception shall not apply to a person who had been deported.
The respondent testified that after his deportation he had been in Italy and other countries and that he boarded the vessel upon which he returned to the United States at Nassau, Bahama Islands. When the facts are examined in the light of the definition in 8 U.S.C. 1101 (a) (13), it is apparent that in March 1956 there was a voluntary coming of this respondent into the United States from a foreign place (the Bahamas). Due to the fact that the respondent's departure was occasioned by deportation, it is clear from the definition that he cannot avail himself of the one exception mentioned in this statutory provision. Inasmuch as the facts in the respondent's case bring him precisely within the definition, we hold that his return to the United States in March 1956 constituted an "entry" under the immigration laws. Since he had been deported and did not have permission to reapply for admission to the United States, he was excludable in March 1956 under 8 U.S.C. 1182(a) (17) and the first lodged charge is sustained.
In the third lodged charge, it is asserted that the respondent is deportable on the ground that he was excludable at the time of entry under 8 U.S.C. 1182(a) (20) because he did not have an immigrant visa or other entry document. Counsel contends that a waiver of documents should be granted under 8 U.S.C. 1181(b). That statutory provision is limited to otherwise admissible aliens who departed temporarily. We have already concluded that the respondent was excludable under 8 U.S.C. 1182(a) (17). Therefore, 8 U.S.C. 1181(b)
cannot be utilized in the respondent's case and we hold that the third lodged charge is sustained.
The second lodged charge is that the respondent is deportable under 8 U.S.C. 1251(a) (2) because he entered without inspection. Counsel contends that this charge should be held inapplicable under Matter of Y-, A-7205042, Int. Dec. No. 975 (1959). We held there that a lawful permanent resident of the United States who reentered on several occasions after short absences by claiming United States citizenship could be considered as being within the purview of the first sentence of section 7 of the Act of September 11, 1957 [8 U.S.C. 1251a) provided that lack of documents was waived under the discretionary authority in 8 U.S.C. 1181(b). We have already concluded that 8 U.S.C. 1181(b) cannot be used in this respondent's case and that he was excludable under paragraphs (17) and (20) of 8 U.S.C. 1182(a). Section 7 of the Act of September 11, 1957 is limited to aliens who were otherwise admissible. Accordingly, this relief is not available to the respondent, and the second lodged charge is sustained.
In the fourth lodged charge, it is alleged that the respondent was excludable at the time of entry under 8 U.S.C. 1182(a) (9) because of the conviction for unlawfully entering a building. The record shows only that the respondent was sentenced to the penitentiary. Counsel contends that this was a petty offense within the terms of section 4 of the Act of September 3, 1954 [8 U.S.C. 1182a). This contention was discussed by the special inquiry officer. The crime of unlawfully entering a building is a misdemeanor under the law of New York and the applicable punishment is imprisonment for not more than one year. The respondent testified that he was imprisoned for 4 months and 20 days. We considered a somewhat similar
question in Matter of C-O-, A-8946123, Int. Dec. No. 1033 (1959), but that case is distinguishable. We find it unnecessary to determine whether the respondent's 1917 conviction may be classified as a petty offense under 8 U.S.C. 1182a inasmuch as the respondent does not meet its requirement that such an alien must have been otherwise admissible. We hold that the fourth lodged charge is sustained.
The remaining contentions of counsel concerning deportability are without merit and do not require specific discussion. We have concluded above that the four lodged charges are sustained. In his decision of November 4, 1959, the special inquiry officer held that the respondent was not subject to deportation under 8 U.S.C. 1252(f). Since the respondent is deportable on the lodged charges, we need not consider or discuss the charge stated in the order to show cause.
The other issue is whether the respondent is eligible for discretionary relief in addition to voluntary departure which was granted by the special inquiry officer. Counsel contends that the respondent is entitled to apply for relief under section 5 of the Act of September 11, 1957 [8 U.S.C. 1182b] and to secure a determination of the application prior to departing from the United States. He asserts that section 5 has been used by this Board in proceedings to adjust status under section 245 of the Immigration and Nationality Act [8 U.S.C. 1255], citing Matter of M-A-10256535, Int. Dec. No. 990 (1959). However, that was a decision of the Service and this Board has nothing to do with adjustment of status under 8 U.S.C. 1255. Matter of G-, A-8250353, Int. Dec. No. 972 (1959), is inapposite because there the issue arose in exclusion proceedings. Matter of G-, A-7444373, Int. Dec. No. 1004 (1959), has no bearing on the issue here. Relief under section 5 of the Act of September 11, 1957 is not available to aliens within the United States except that it could be utilized in preexamination proceedings during the period that procedure was in effect (Cammarata v. Sahli, 163 F. Supp. 125 (E.D. Mich., 1958); Matter of DeFA-10547426, Int.
, Dec. No. 978 (1959)). The latter was a decision of the Attorney General and is controlling in this respondent's case. Accordingly, we hold that he cannot secure determination of an application under section 5 while he is within the United States.
Counsel stated that he was requesting permission to reapply for admission in connection with the 1955 deportation, but the special inquiry officer denied this relief. This matter was not mentioned
. in counsel's brief to this Board. However, assuming that the respondent's present marriage continues in existence to the time of his application for a visa, it appears that he has been granted permission to reapply for admission after deportation in accordance with 8 CFR 212.2, his marriage to his citizen spouse having occurred on February 28, 1959. The special inquiry officer has granted voluntary departure which is the only additional relief which is appropriate at this time. In view of the foregoing, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.
MATTER OF B
In SECTION 245 Proceedings
Decided by Regional Commissioner March 28, 1960
Approved by Assistant Commissioner
Adjustment of status-Section 245 of 1952 act—Not available to crewman whose
actions indicate he was not bona fide nonimmigrant at time of admission. (1) Section 245 applicant has not met burden of establishing that he was a
bona fide crewman at time of last admission when the record shows that he was refused permission for discharge by the master of his vessel; that he proceeded from New Orleans to New York to become better acquàinted with a United States citizen whom he had met before and to whom he was actually married three days after his arrival there. (2) Applicant's testimony regarding his intentions at time of entry (to de part with his ship or secure a berth on another vessel) is not accepted when viewed against his actions before and after arrival and his admitted untruthfulness in sworn statement made to the Service. (Matter of M A-10256535, Int. Dec. No. 990, distinguished.)
BEFORE THE REGIONAL COMMISSIONER Discussion: This case is before me by certification under 8 CFR 103.4. The district director has denied the application on the ground that the applicant was not a bona fide nonimmigrant at the time of his last admission into the United States.
The applicant is a native and citizen of Greece, age 28, who was last admitted to the United States at Galveston, Texas, on February 17, 1959, as a nonimmigrant crewman under section 252(a) (1) of the Immigrant and Nationality Act solely for the length of time his vessel was to remain in United States ports (not to exceed twentynine days).
The SS. HELEN H. upon which the applicant arrived proceeded coastwise from Galveston to New Orleans, Louisiana, arriving there on February 24, 1959. On March 10, 1959, the SS. HELEN H. sailed foreign from New Orleans. The applicant and 6 other crew members were reported by the master of the vessel as deserters. The applicant has remained in the United States continuously since his entry at Galveston on February 17, 1959.
On April 23, 1959, the applicant walked into the New York office and filed the application which is now before us. At the time of