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MATTER OF CARDENAS-PINEDO

In DEPORTATION Proceedings

A-10720991

Decided by Board August 12, 1963

A lawful permanent resident, upon return to the U.S. following an innocent,

casual absence to Mexico for a few hours to visit relatives did not make an entry upon which to predicate a ground of deportation [Rosenberg v. Fleuti, 374 U.S. 449 (1963)). (See also, Matter of Yoo, Int. Dec. No. 1305.)

CHARGES :

Order: Act of 1952–Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]-Excludable

as alien convicted of crime involving moral turpitude, theft. Lodged: Act of 1952—Section 241 (a) (1) (8 U.S.C. 1251 (a) (1)]-Excludable

as alien who admits commission of crime involving moral turpitude, theft.

The case comes forward pursuant to certification by the special inquiry officer of his order dated June 28, 1963 terminating the proceedings.

The record relates to a native and citizen of Mexico, 25 years old, male, married, who was admitted to the United States for permanent residence as a nonquota immigrant on June 25, 1958. Although the record of conviction shows that the respondent was convicted on January 18, 1962, it was found that the respondent was in fact convicted on November 22, 1961 in the 34th Judicial District Court, El Paso, Texas, upon his plea of guilty on the charge of theft of property of the value of $50 and over and received a suspended sentence for a period of three years. Although the charge in the order to show cause was abandoned because of the decision in Matter of L-R-71. & N. Dec. 318 (Attorney General 1957) the lodged charge based upon the admission of the commission of the crime because of the plea of guilty was sustained. For the purposes of this case, we shall consider the lodged charge as sustained and shall pass on to a consideration of the primary issue raised by the certification.

The respondent had the status of a resident alien in the United States, having been admitted as a nonquota immigrant on June 25,

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1958. Following that admission he resided in the United States and has continued to reside in this country until the present time. His wife is a United States citizen and he has three children all of whom are United States citizens. He has had the same employment in the United States since his entry as an immigrant. Following the date of his admission as an immigrant, the respondent has made brief visits to Mexico. Subsequent to his plea of guilty the respondent has made visits of brief duration not exceeding a few hours to visit relatives in Mexico, returning thereafter to his home and family here in the United States. Inasmuch as the respondent experienced no difficulty in entering the United States upon the occasion of each return, it is assumed for the purpose of this discussion that he presented the required document, namely, a Form I-151 Alien Registration Receipt Card.

The Supreme Court in the recent case of Rosenberg v. Fleuti, 374 U.S. 449, 10 L. ed. 2d 1000 (June 17, 1963), considered the definition of the term "entry” as set out in section 101(a) (13) of the Immigration and Nationality Act in connection with the case of a resident alien who returned to the United States after a brief visit in Mexico and who it was contended was excludable as an alien afflicted with psychopathic personality under section 212(a)(4) by reason of the fact that he was a homosexual. As defined in section 101(a) (13) of the Immigration and Nationality Act, 8 U.S.C. 1101 (a) (13), “the term "entry' means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, 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 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; * * *»

The court reviewed the history of the judicial definition of the term "entry" as expressed most restrictively in U.S. ex rel. Volpe v. Smith, 289 U.S. 422, and as relaxed by the holdings in Di Pasquale v. Karnuth, 158 F. 2d 878 (New York) and Delgadillo v. Carmichael, 333 U.S. 338;' and referred to the House and Senate Committee Reports preceding enactment of the bill containing the definition. The court quoted the decisions in Di Pasquale v. Karnuth, and Delgadillo v.

* Followed in Yukio Chai v. Bonham, 165 F. 2d 207 (9th Cir. 1947) and Carmichael v. Delaney, 170 F. 2d 239 (9th Cir. 1948).

· H.R. No. 1365, 82nd Cong., 20 Sess. 32, 1952; S.R. No. 1137, 82nd Cong., 2d Sess. 4 (1952).

Carmichael, supra in which it was recognized that the "interests at stake” for the resident alien are "momentous" and that “the stakes are indeed high and momentous for the alien who has acquired a residence here.” Combining these statements with the more general observation appearing in Delgadillo that "deportation can be the equivalent of banishment or exile” it was held that the congressional protection of returning resident aliens in section 101(a) (13) was not to be woodenly construed. The court therefore concluded that it effectuates congressional purpose to construe the intent exception to section 101 (a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence. It enumerated the major factors to whether such intent can be inferred as the length of time the alien is absent; the purpose of visit, as for example to accomplish some object which itself is contrary to some policy reflected by the immigration laws; and whether the alien has to secure any travel documents in order to make his trip. The court reached the conclusion that an innocent, casual and brief excursion by a resident alien outside this country's borders may not have been “intended” as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an "entry” into the country on his return.

In the instant case, the respondent, a permanent resident alien, made an innocent, casual and brief excursion to Mexico for a few hours. On the occasion of each absence he was going to visit relatives in Mexico. On its face, we cannot distinguish the present case from the holding in Rosenberg v. Fleuti. We conclude that the respondent did not "intend” to depart in the sense contemplated by section 101 (a) (13) and the deportation order cannot stand. The order of the special inquiry officer terminating the proceedings will be affirmed.

ORDER: It is ordered that the order of the special inquiry officer dated June 28, 1963 terminating the proceedings be and the same is hereby affirmed.

*374 U.S. 449, 10 L. ed. 2d 1000.

MATTER OF GHAZAL

In DEPORTATION Proceedings

A-10542984

Decided by Board August 1, 1963

An alien admitted to the United States upon presentation of a nonquota immi

grant visa procured by fraud is statutorily eligible for adjustment of status under section 245, Immigration and Nationality Act, as amended.

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251 (a) (1)]-Excludable

at time of entry under section 212(a) (20), immigrant, no visa.

This case comes forward on appeal from an order entered by the special inquiry officer on June 3, 1963, denying the respondent's application requesting that his immigrant status be adjusted to that of a permanent resident as provided in section 245 of the Immigration and Nationality Act and directing that he be deported from the United States to Syria on the charge contained in the order to show cause. The respondent, a 43-year-old married male, native and citizen of Syria, first entered the United States at El Paso, Texas on November 29, 1955, at which time he had in his possession and presented for inspection nonquota immigrant visa issued in the name of Aldo Lutfi at the American Consulate in Juarez, Mexico. The aforementioned nonquota visa was issued to the respondent on the basis of his claimed birth in Brazil, South America. The respondent last entered the United States at Miami, Florida on February 22, 1958, at which time he had in his possession a reentry permit issued in the name of Aldo Lutfi on March 16, 1956. The record clearly reflects he is a native and citizen of Syria and his true and correct name is Abdul Wahab Ghazal.

Deportation proceedings were instituted against the respondent on June 9, 1960. Upon conclusion of the hearing held in deportation proceedings, the special inquiry officer on July 19, 1960 entered an order directing that the respondent be deported from the United States in the manner provided by law on the charge set forth in the order to show cause. During the deportation hearing held at Miami, Florida, in July 1960, the respondent designated Brazil as the country to which he wanted to be deported. A further recital of the remaining facts in this case is not deemed necessary inasmuch as they have been fully and adequately discussed by the special inquiry officer in his decisions of July 19, 1960 and June 3, 1963.

The only question for us to resolve in this proceeding is whether the respondent is eligible to have his immigration status adjusted under section 245 of the Immigration and Nationality Act. The special inquiry officer has concluded that he is ineligible to be accorded permanent resident status under section 245 of the Act and his reasons therefor are set forth in detail in his decision of June 3, 1963. There is no legal basis for the special inquiry officer's conclusion that the respondent is ineligible to be accorded permanent resident status under section 245 of the Immigration and Nationality Act. Section 245 of the Immigration and Nationality Act as amended provides that "the status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe to that of an alien lawfully admitted for permanent residence if * * *"

The facts in this case are readily distinguishable from those in Matter of Da Silva, Int. Dec. No. 1268, decided by this Board on February 21, 1963. In the cited case the alien had been lawfully admitted to the United States for permanent residence and he thereafter became deportable because of convictions of crimes involving moral turpitude after entry. In matter of Da Silva, supra, we held that an alien lawfully admitted for permanent residence, who subsequently became deportable because of convictions of crimes involving moral turpitude, is statutorily ineligible for adjustment of status under section 245 of the Immigration and Nationality Act, as amended. In the instant case the nonquota visa presented by the respondent at the time of his initial admission to the United States was procured by fraud. It was issued in a name other than his own and upon his falsely claiming that he was born in Brazil. Hence, the respondent was never lawfully admitted to the United States for permanent residence because the visa with which he effected entry was procured by fraud and he was not entitled to the nonquota status specified in his immigrant visa. As previously noted, section 245 of the Act as amended provides that the status of any alien, other than an alien crewman, who was inspected and admitted into the United States may be adjusted by the Attorney General, * **. The respondent in the instant proceeding was inspected and admitted into the United States in November 1955 and at the time of his last admission on February 22, 1958. Hence, we conclude he is statutorily eligible to have his

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