6811403
Decided by Board December 15, 1948
Status — Immigrant or nonimmigrant — Section 3 of the Immigration Act of 1924 — Exceptions therein.
1. The term "immigrant" includes every alien coming to the United States either to reside permanently or for temporary purposes, unless he can bring himself within one of the exceptions set forth in section 3 of the Immigration Act of 1924.
2. An alien coming here for the purpose of committing a crime does not come within the exceptions set forth in section 3 ( supra).
3. An alien entering from Mexico with a commercial vehicle to proceed to Colorado merely to purchase merchandise (potatoes) for resale in Mexico, who may not be (conjecturally) in a position to lawfully travel upon the public highways of Texas en route (a matter between the State authorities of Texas and the alien) because he does not have nor does he intend to obtain a vehicle license in the United States, is not subject to exclusion as an immigrant on the basis that he is entering for the purpose of committing a "crime" and thus not within the exceptions set forth in section 3 ( supra).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: The appeal in this case is from the order of the Service dated September 20, 1948, affirming the decision of the Board of Special Inquiry which excluded appellant on the ground that he was an immigrant not in possession of an immigration visa as required by the Immigration Act of 1924.
Appellant is a native and citizen of Mexico, 29 years of age and a peddler and trucker by occupation. He arrived at the port of Hidalgo, Tex., November 17, 1947, for the purpose of proceeding to Greeley, Colo., to purchase potatoes for resale in Mexico. Appellant is driving a truck licensed in Mexico.
The Service, in an exhaustive analysis of local ordinances in Texas covering the requirement that vehicles on the highway of that State be registered, concluded that since appellant's truck is not licensed in the United States and since he does not intend to obtain a license for it on this trip, he would not be in a position to lawfully travel upon the public highways of Texas and as a result cannot be considered a temporary visitor for business.
The precise issue presented by this record is whether appellant is a nonimmigrant entering the United States temporarily for business. His testimony is that he expected to remain more than 10 days and of course would pass through Texas on his way to Colorado for the purpose indicated. He presented a valid nonresident alien's border-crossing card and a Mexican passport. As indicated his truck is duly licensed in Mexico.
In support of its position the Service quoted the Matter of R----, A-6383742 (Dec. 4, 1946), to the effect that this Board held therein that an alien seeking entry into the United States as a nonimmigrant for business is required to confine his activities to the business permitted by local law and must be able to discharge lawfully the purpose for which he is entering; that the appellant will violate the Texas motor vehicle laws and the regulations of the Interstate Commerce Commission if he is permitted to enter the United States for the purpose for which he seeks admission.
Section 3 of the Immigration Act of 1924 provides:
When used in this act the term immigrant means any alien departing from any place outside the United States destined for the United States, except * * * (2) An alien visiting the United States temporarily as a tourist or temporarily for business or pleasure.
Again the term "immigrant" includes every alien coming to the United States either to reside permanently or for temporary purposes, unless he can bring himself within one of the exceptions. Karnuth v. U.S., 279 U.S. 231, 242-243 (1929). We have said, and we repeat, that the exceptions were not intended to include an alien coming to the United States for the avowed purpose of committing a crime. Such a person cannot be considered as possessing a nonimmigrant status within the meaning of section 3 (2). Matter of M----, 56152/470 (Feb. 5, 1944).
What we said in the R---- case is this:
We disapprove the theory that this case comes within the ruling expressed in Matter of M----, 56152/470 (Feb. 5, 1944), in which it was held that the alien was properly excluded as an immigrant not in possession of an immigration visa, where the avowed purpose in securing admission was to effectuate an intent to commit a crime. There is no evidence that in the instant case the alien sought admission to perpetrate "a crime." An alien seeking entry as a nonimmigrant for business, of course, is required to confine his activities to the business permitted by local law. Willingly or not the alien in this case apparently would have transcended a local ordinance in bringing a passenger in his taxicab from Mexico to some distant point in Texas. But to say that he was entering to commit "a crime" is something else. Accordingly, we disapprove of the position that the holding in the M---- case is applicable to the facts which obtain in the instant matter.
It is too clear that the R---- case merely affirmed the ruling in the M---- case that an alien seeking temporary entry into the United States for business could not be considered a nonimmigrant within the meaning of section 3 (2) of the Immigration Act of 1924 when his purpose was to effectuate an intent to commit "a crime."
The Service and the field state that there is no reciprocal agreement between Mexico and Texas; that the Attorney General of that State indicated that his office was prohibited by law from furnishing an opinion to other than certain State and county officials. It appears that such an opinion was requested by the local immigration office. Further, it is shown that the State highway engineer, through the director of the motor vehicle division, Austin, Tex., informed the local immigration office that he did not consider it necessary to request an opinion of the Attorney General of Texas and that in his opinion the interpretation of the Board of Special Inquiry of the Texas motor vehicle laws is correct. In the same breath, the State highway engineer stated that Texas has always been lenient in the enforcement of registration laws insofar as they affect vehicles from Mexico even though Texas commercial vehicles are allowed no privileges whatever in Mexico. On the other hand, the district supervisor of the Interstate Commerce Commission advised the local office that the purpose of appellant's entry might permit him to be styled an exempt carrier under the Interstate Commerce Act, although he would be subject to its safety regulations. There is no showing in the instant case that the appellant is entering the United States for the purpose of committing "a crime" nor are we sure that the appellant's passing through Texas, destined to Colorado, without having his vehicle registered under the State laws of Texas, would constitute a "crime."
This record does not, in our opinion, provide the sine qua non to a finding that appellant is an immigrant or that he is not a bona fide nonimmigrant. The fact is that his destination is Colorado and the record clearly shows that he has previously entered Texas with his truck on more than 20 occasions and the question of his not being a bona fide nonimmigrant because of the State laws of Texas now comes up for the first time. Aside from the fact that it would seem that the issue raised is purely conjectural at best, the other impression seems to be that there is considerable question whether appellant's passing through Texas with his truck would even constitute a violation of auto registration laws of Texas insofar as it applies to nonresidents. The articles of the Texas law covering such vehicles seem to be amply dotted with exceptions. Lastly, the fact is that the issue raised is entirely beside the point and in no way justifies a finding that appellant is an immigrant. Whether he is required to comply with the local State laws is a matter between appellant and the authorities of the State of Texas. We are satisfied that the appellant's nonimmigrant status is clearly established and there is no basis for a contrary determination. The appeal will therefore be sustained.
Order: It is ordered that the appeal be sustained and the appellant's admission authorized as a visitor for business.