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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 or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: ...

In commenting on the exception contained in the latter portion of this definition, the framers of the legislation explained that "however, for the purpose of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term 'entry' has not been found to be as apparent." More recently, the courts have departed from the rigidity of that rule and recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States (DiPasquale v. Karnuth, 158 F. 2d 878 (2d Cir. 1947)) nor did not leave the country voluntarily (Delgadillo v. Carmichael, 332 U.S. 388 (1947)) ; the bill defines the term "entry" as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.1

In the case of DiPasquale v. Karnuth, it was held that no "entry" within the contemplation of the immigration laws had been made by an alien who returned to the United States as soon as practicable following an unintended and unwitting departure which occurred when the train upon which he was traveling between points in the United States crossed the international border without the alien's knowledge, and indeed while he was sleeping. The case of Delgadillo v. Carmichael, involved a Mexican alien who had made a legal entry into the United States in 1923, resided here until 1942 when he shipped out as a member of the crew of an American merchant ship which was torpedoed and the alien was then taken to Cuba where he remained for one week and then was returned to the United States. Deportation was sought on the ground that he had been sentenced to imprisonment for one year or more because of conviction of a crime involving moral turpitude committed within five years after his alleged entry in 1942. The Supreme Court reversed the Ninth Circuit Court of Appeals, following with approval the construction placed upon the word "entry"

12 U.S. Code Cong., and Adm. News, 82nd Cong., 2d Sess., p. 1683.

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by DiPasquale v. Karnuth, holding that the alien in that case did not make an entry within the meaning of the immigration laws; refusing to attribute to Congress a purpose to make his right to remain here dependent on circumstances so fortuitous and capricious as those which existed in that case; in effect, holding that where an alien's departure to or presence in a foreign country was involuntary, no entry was, in law, made upon the alien's return to the United States.

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The court in Carmichael v. Devaney, held that a resident of the United States who served in the United States Maritime Service during the Second World War and who returned to the United States after his ship had entered several foreign ports, did not make an "entry" within the immigration laws when returning to the United States because it was not his voluntary act but the exigencies of war in which he was a participant that brought him to foreign ports. To like effect it has been held that an alien who, while residing in the United States, is inducted into the Armed Forces and during his tour of duty serves in a foreign country is regarded as being physically present in this country during all of the time. And that his return to this country as a member of the Armed Forces does not constitute an entry.

It is true that the facts in the present case differ from those existing in the cited cases which led to the present definition of the term "entry" as used in section 101 (a) (13) of the Immigration and Nationality Act. However, the facts are substantially similar to those existing in U.S. ex rel. Valenti v. Karnuth. That case involves a schoolboy of 16 in an American public school who went with his teacher and the class for a picnic to a Canadian beach. The court held that in the decisions on the subject of departure and reentry of an alien, there is a necessary implication that the acts of the alien were at all times voluntary and free from restraint of any kind, and that there was entire liberty on his part to leave or not to leave, to reenter or not to reenter, as he pleased. The court held that the minor schoolboy in that case could not possess the freedom of action to decide whether or not he would go; he was not a free agent acting entirely of his own volition; he was under compulsion as if he were in the schoolroom and was not voluntarily departing from and reentering the country within the meaning of the statute; on the contrary, he was under compulsion both when he left for and when he returned from such picnic. The compulsion under which the relator may be presumed

* See 2.

*170 F.2d 239 (9th Cir. 1948).

Matter of J—M—D—, 7 I. & N. Dec. 105.

71 F. Supp. 370 (N.D.N.Y., 1932).

to have acted serves to distinguish his case from cases where the departure was purely voluntary.

It is contended that the Valenti case has been repudiated in U.S. ex rel. Dombrowski v. Karnuth, 19 F. Supp. 222 (W.D.N.Y., 1937) and Drachmos v. Hughes, 26 F. Supp. 192, 194 (W.D.N.Y., 1937). However, neither of those cases involves a minor and the same answer may be made in the case of U.S. ex rel. Betty v. Day, 23 F. 2d 489, in which the reentry of the relator did not occur during minority. The principle of the Valenti case, i.e., voluntariness, has been followed in a number of administrative decisions.

In the present case the respondent departed with his mother and stepfather, who was in military service and under order to Germany when he was 16 years of age and returned when he was 19 years of age. It has been shown that the respondent was an unemancipated minor, under the custody and control of his parents, and he had no choice nor was he asked whether he would depart. Under the law in the State of New Jersey it was incumbent upon the minor respondent to obey the directions of his parents and he was obliged to follow and accompany his stepfather when the stepfather so directed. We do not reach the question of whether the respondent's stepfather's departure under military orders was a factor in the case. What is important is that the respondent was under a legal compulsion to follow and accompany his parents. Being under such compulsion, his case appears to be undistinguishable from U.S. ex rel. Valenti v. Karnuth. It is believed that the respondent has established that he falls within the exception set forth in section 101 (a) (13) of the Immigration and Nationality Act in that his departure to a foreign place was not intended by him or his presence in a foreign place was not voluntary. It is concluded that at the time of his last return on August 31, 1959, the respondent had not in contemplation of law made a reentry. Of course, as regards his original entry on January 9, 1954, the definition of the term "entry" eliminates the question of voluntariness. The appeal will be dismissed.

ORDER: It is ordered that the appeal of the trial attorney from the decision of the special inquiry officer dated December 19, 1962 terminating the proceedings be and the same is hereby dismissed.

* Matter of T—, 4 I. & N. Dec. 235 (1951); Matter of P—, 5 I. & N. Dec. 220 (1953); Matter of C-, 5 I. & N. Dec. 370 (1953); unreported Matter of C-N-, A-8410653 (September 30, 1960 motion to reconsider denied January 27, 1961). 1 F. Supp. 370 (N.D.N.Y., 1932).

MATTER OF PEREZ-JIMENEZ

In DEPORTATION Proceedings

A-11261536

Decided by Board July 19, 1963

When parallel deportation and extradition proceedings are pending, the outstanding order of deportation will be withdrawn and further deportation proceedings held in abeyance during the pendency of extradition proceedings, since further deportation proceedings would serve no useful purpose and the outstanding order of deportation might unnecessarily and improperly complicate the extradition proceedings.

CHARGES:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry-No immigrant visa (8 U.S.C. 1182(a) (20)).

Lodged: Act of 1952-Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Remained longer than permitted as a nonimmigrant.

Respondent is a former president of the Republic of Venezuela. Early in 1958 revolutionary forces terminated his incumbency as president. He left his homeland at that time.

Our decision of September 8, 1959, affirmed the special inquiry officer's order directing respondent's deportation on the charge that he had remained in this country as a nonimmigrant longer than permitted. Respondent has not designated a country to which he would prefer to be sent if deported.1

Subsequent to our prior order respondent applied for the benefits of section 243 (h) of the Immigration and Nationality Act. The case comes here now on respondent's motion to reopen the proceedings to afford him a hearing on that application and on the Service motion to withdraw the deportation order. We conclude that the Service motion should be granted.

'When the special inquiry officer heard respondent's case, the regulations did not provide, as now, for the special inquiry officer to determine the place of deportation.

* Respondent has also filed in the District Court, Southern District of Florida a petition for a mandatory injunction, seeking adjudication of his application.

Respondent last arrived in the United States at West Palm Beach, Florida on March 28, 1958. He then possessed a Venezuelan diplomatic passport and a nonimmigrant visa issued on February 10, 1958 at our Embassy in Santo Domingo.3 The Service initially paroled respondent but on January 7, 1959 admitted him as a temporary visitor. Respondent is 49 years old. His wife and four minor children are with him in this country. Only respondent is under proceedings at this time, however.

The Consul General of Venezuela in Miami informed the Service by letter of June 5, 1958 that the Venezuelan government had cancelled the diplomatic passports of respondent and his wife and children (Ex. 4).

On August 24, 1959 the Venezuelan Consul in Miami filed a complaint in the District Court for the Southern District of Florida seeking respondent's extradition to Venezuela. A district judge, sitting as a magistrate in extradition proceedings, found probable cause that respondent had committed in Venezuela certain financial crimes which are covered by the Treaty of Extradition between Venezuela and this country. He committed respondent to the custody of the United States Marshal to await the Secretary of State's action. Respondent then brought habeas corpus proceedings, which the District Court dismissed. The Court of Appeals affirmed that decision and the Supreme Court denied certiorari. The extradition proceedings now

3 Then Ciudad Trujillo.

4 43 Stat. 1698, T.S. No. 675 (1923). 18 U.S.C. 3186.

Jimenez v. Aristeguieta, 311 F.2d 547 (C.A. 5, 1962), cert. den. sub nom. Jimenez v. Hixon, 373 U.S. 914 (1963).

Litigation connected with the extradition proceedings has been extensive. The judicial phase of the principal action terminated with an order of the magistrate dated June 16, 1961, committing respondents to the custody of the United States Marshal, and an order of June 23, 1961, certifying the record to the Secretary of State with the judge's findings. Earlier in that proceeding, another judge had denied respondent's motion for a protective order against the taking of certain depositions. Respondent attempted an appeal, but the Court of Appeals for the 5th Circuit held that it had no jurisdiction of an appeal from an interlocutory or final order of a magistrate in an extradition proceeding. Jimenez v. Aristeguieta, 290 F. 2d 106 (C.A. 5, 1961)-criticized, 61 Mich. L. Rev. 383 (1962).

There have been various collateral proceedings in addition to the habeas corpus proceedings cited above. Aristeguieta v. Jimenez, 274 F.2d 206 (C.A. 5, 1960, per curiam) and First National City Bank v. Aristeguieta, 287 F. 2d 219 (C.A. 2, 1960), cert. granted 365 U.S. 840 (1961)-denials of motions to quash subpeoneas duces tecum. Jimenez v. Aristeguieta, 314 F.2d 649 (1963)-denial of bail.

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