A-2786530.
Decided by Board November 6, 1946. Memorandum of Central Office November 20, 1946. Decided by Board December 20, 1946. Ruling by Attorney General July 14, 1947.
Smuggling aliens — Section 19 (b) (1) of the Immigration Act of 1917, as amended by section 20 of the Alien Registration Act of 1940, approved June 28, 1940 (8 U.S.C. 155 (b) (1)) — Meaning of words "for gain."
An alien, who otherwise falls within the prohibition of the statute (8 U.S.C. 155 (b) (1)) by knowingly inducing aliens to enter the United States, but does so in order to realize an anticipated profit to be obtained from the labor performed by the smuggled aliens after their illegal entry, is deemed to have done so "for gain" within the meaning of the statute.
CHARGE:
Warrant: Act of June 28, 1940 — Induced alien unlawfully to enter the United States.
BEFORE THE BOARD
(November 6, 1946)
Discussion: The respondent is a 54-year-old native and citizen of Mexico. He has been living in the United States since 1920. His lawful admission for permanent residence occurred on June 4, 1945. He last entered the United States on April 7, 1946, when he was admitted as a returning resident.
The deportation of respondent is sought under section 19 (b) (1) of the act of February 5, 1917 as amended by the Alien Registration Act of 1940. This provision provides for the deportation of "any alien who, at any time within 5 years after entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law."
The record shows that the respondent was under contract to harvest onions. The contract provided that he was to receive 30 cents for each sack of onions harvested. Apparently respondent could not obtain labor in the United States to perform his contract. Accordingly, he went to Mexico and hired three Mexicans to come to the United States to work for him. Two of these Mexicans were his nephews. Respondent agreed to pay each of these aliens 20 cents for each bag of onions harvested.
Respondent admittedly knew that the aliens whom he hired to work for him did not have proper documents with which to enter the United States. He suggested to them that they wade across the Rio Grande and come to his home, from which point he agreed to transport them to the onion fields. The Mexicans did so enter the United States.
Respondent did nothing to physically assist the laborers in gaining entry into the United States. No monetary consideration of any kind was paid by them to the respondent for suggesting to them the manner in which they were to enter the United States. Respondent's actions were motivated solely by his desire to obtain the necessary labor to fulfill his contract.
The Commissioner found that respondent was subject to deportation under section 19 (b) (1) of the act of February 5, 1917, as amended, saying:
It is noted that the phrase "for gain" in the statute is not qualified or modified and that there is no limitation as to whether such gain need be pecuniary, direct or indirect, and tangible or intangible. The evidence establishes that the unlawful importation herein was for the purpose of gain.
The legislative history of section 19 (b) (1) does not support the Commissioner's interpretation of this provision. As originally introduced into the Congress as part of H.R. 5138, this section provided for the expulsion from the United States of any alien who "knowingly encouraged, induced, assisted, abetted, or aided any one to enter the United States in violation of law."
At the hearings before the House subcommittee on H.R. 5138 the following colloquy with respect to the original version of section 19 (b) (1) occurred between Representative Hobbs, sitting on the subcommittee, and Representative Smith, the author of H.R. 5138, who was testifying:
Mr. HOBBS. Yes; the next question I would like to ask you is in regard to subsection 5 on the same page. What do you think of the suggestion of the addition of the words "and for gain"?
Mr. SMITH. Well, I think the language as it now is written is perhaps a little drastic, but if you insert the words "for gain," you do not take care of any case except where a man is doing it for mercenary purposes. It might be done for propaganda purposes or various other purposes, but unless there was financial gain attached to it, I do not think you could convict anybody. I would be glad to give that further thought and talk with the committee further about it.
On a subsequent day Mr. Trevor, the witness, and Representative Hancock, a subcommittee member, said the following about this same provision:
Mr. HANCOCK. Do you not think that number 5 is a little too severe in the case of a son trying to get his mother into the country? Should that not be limited to those who smuggle aliens in for a valuable consideration?
Mr. TREVOR. Once you make an exception of that kind you have made a hole in the whole proposition, and it is going to be the cause of infinite trouble. You would have situations arising where the person who actually did the smuggling, or who was used as a go-between would profess to be a relative of the person, and you cannot disprove it.
When H.R. 5138 was reported to Congress the words "for gain" appeared in the provision which subsequently became section 19 (b) (1) of the 1917 act. Senator Connally, the Senate floor manager of H.R. 5138, in explaining this provision of the bill, said:
Senate Judiciary Committee Reports 1721 and 1796, 76th Cong., 3d sess.; House Judiciary Committee Report 2683, 76th Cong., 3d sess.
86 C.R. 8343, 76th Cong., 3d sess.
It must be for gain. If a father should be found guilty of slipping into the country his son, his wife, or another member of his family, he would not come within this prohibition; but if an alien should sell a passport to another man, and the other man should enter the country on it, the alien would be guilty, and would be deportable.
The legislative history makes it clear to us that section 19 (b) (1) was aimed at aliens who were paid a consideration in exchange for aiding, assisting, encouraging, inducing, or abetting other aliens to enter the United States unlawfully. It was not aimed at aliens who, like the one before us, induced other aliens to come to the United States to work for them where no consideration was paid to the inducer. Congress had already prescribed the civil and criminal sanctions to be imposed upon such alien importers of contract laborers in section 5 of the 1917 act.
It is true, of course, that respondent was to gain, in the sense of making a profit, from the laborers he induced to enter the United States unlawfully. But this gain was not in return for inducing the aliens to enter the United States. Respondent presumably gained no more than he would have had the aliens entered this country lawfully and gone to work for him. We think that, as the legislative history shows and as we indicated above, to be within the scope of section 19 (b) (1) the gain must have come to the respondent solely in exchange for his services in effecting the illegal entry of the aliens. That was not the case here.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That respondent is an alien, a native and citizen of Mexico;
(2) That respondent last entered the United States at Eagle Pass, Tex., on April 7, 1946;
(3) That prior to respondent's last entry he hired three Mexican nationals to work for him harvesting onions;
(4) That respondent suggested to these aliens that they enter the United States by wading the Rio Grande;
(5) That respondent was not paid any monetary consideration by the aliens for suggesting to them the manner in which they were to enter the United States;
(6) That respondent agreed to pay the aliens 20 cents for every bag of onions harvested by them;
(7) That under his contract respondent was to receive 30 cents for every bag of onions that he harvested.Conclusion of Law:
(1) That under section 19 (b) (1) of the act of February 5, 1917, as amended, respondent is not subject to deportation on the ground that within 5 years after entry he knowingly and for gain encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.Order: It is ordered that the warrant of arrest be canceled and the proceedings dismissed.
Discussion: The respondent, 54 years old, native and citizen of Mexico, has resided in the United States since 1920. He was admitted to the United States for permanent residence on June 4, 1945. The respondent last entered the United States on April 7, 1946, as a returning resident after a short trip to Mexico where he had arranged for three Mexican laborers to enter the United States unlawfully in order to work for him as onion pickers at the rate of 20 cents a bag. The respondent had a contract to harvest onions under the terms of which he was to receive 30 cents a bag and as a consequence would make a profit of 10 cents on each bag of onions picked by the Mexican laborers. Deportation of the respondent was sought on a warrant of arrest charging violation of section 19 (b) (1) of the Immigration Act of February 5, 1917, as amended June 28, 1940, by section 2 of the Alien Registration Act of 1940, which provides:
An alien who, at any time within 5 years after entry shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
The Presiding Inspector found the respondent to be subject to deportation on the charge contained in the warrant of arrest and this finding was approved by the Commissioner. The Board of Immigration Appeals, however, ordered the warrant of arrest canceled and the proceedings dismissed on the ground that section 19 (b) (1) of the Immigration Act of 1917, as amended, was aimed at aliens who were paid a consideration in exchange for aiding, assisting, encouraging, inducing, or abetting other aliens to enter the United States unlawfully; that it was not aimed at aliens like the one in the present case who induced other aliens to come to the United States to work for them where no consideration was paid to the inducer.
The question at issue is whether the interpretation of the Board of Immigration Appeals or the Commissioner is the correct one as to the construction to be placed on the phrase "for gain" in section 19 (b) (1) of the act of February 5, 1917, as amended. Much point has been made of the legislative history of the Act and the construction placed upon it by interested members of Congress. Recognizing the helpfulness of such considerations, I nevertheless urge that in the consideration of the words of a statute we should first endeavor to give to those words their natural meanings and should resort to examination of legislative history only when confusion or doubt remains after the words in controversy have been accurately defined. All the standard dictionaries give the word gain meanings which are broader than direct monetary reward. A gain may be an advantage or a benefit. I find no difficulty in saying that a person who pays 20 cents for something for which he is to receive 30 cents is receiving a benefit or an advantage or a profit — indeed a gain. If in order to produce this result he imports labor in violation of the immigration law, he has made that importation for a benefit or an advantage or a profit or a gain. One may well ask if these persons were not brought in for a gain, what were they brought in for?
In view of the fact that the Board's decision is based primarily on the legislative background of the act, I shall discuss that phase of the problem as it is our view that the discussions on the bill as set forth in the Board's decision sustain our position. The Board of Immigration Appeals traces the legislative history of this section as exemplified in the discussions on the bill (H.R. 5138) before the congressional subcommittees and on the floor of Congress. As originally introduced, the bill provided for the expulsion from the United States of any alien who "knowingly encouraged, induced, assisted, abetted, or aided anyone to enter or try to enter the United States in violation of law." The reported colloquy between Mr. Hobbs and Mr. Smith and again between Mr. Hancock and Mr. Trevor concerning the addition of the words "and for gain" to the original version of the bill indicates strong objection on the part of the proponents of the bill to limiting the section to those who smuggle aliens in merely for mercenary purposes or for a valuable consideration. In explaining the final version of the bill, Senator Connally emphasized that the alien must be motivated by a desire for gain and illustrated the point with the example that if the case were one involving a father attempting to assist his son, wife, or other member of his family, the prohibition would not apply; but that if the case were one involving an alien selling to another alien a passport on which that alien should enter the country, then the alien selling the passport would be deportable.
Hearings before subcommittee No. 3 of the House Judiciary Committee, 76th Cong., 1st sess.; Senate Judiciary Committee Reports 1721 and 1796, 76th Cong., 3d sess.; House Judiciary Committee Report 2683, 76th Cong., 3d sess.; 86 C.R. 8343, 76th Cong., 3d sess.
After thus reviewing the legislative history of the act, the Board drew the conclusion that the gain must have come to the alien solely in direct exchange for his services in effecting the illegal entry of the aliens. This conclusion when considered together with the Board's Finding of Fact No. (5) "that respondent was not paid any monetary consideration by the aliens for suggesting to them the manner in which they were to enter the United States," makes it clear that the Board's interpretation is that there must be a monetary consideration moving from the assisted alien to the assisting alien before the charge can be sustained. The committee hearings as set forth above negative any such interpretation. On the contrary, there is indicated strenuous objection to limiting the gain merely to mercenary purposes or for valuable consideration with perhaps concession to those cases wherein there is involved a motivation based solely on family love and affection.
The interpretation placed on this section by the Board of Immigration Appeals would so weaken the entire the structure as to defeat the clearly expressed intention of the author of this section. Reference is had to the case of an alien, who pursuant to an arrangement made with a prospective employer of smuggled aliens, went to Mexico, hired six Mexican laborers and after returning to the United States picked them up after they had crossed the border according to prearranged plan. The alien was to receive no money from the assisted aliens but was to be compensated by the prospective employer according to what it was worth. Surely in this case there was no direct pecuniary benefit but only an indirect prospective gain arising out of the arrangement he had made with the prospective employer. However, the Board clearly seeing the manifest absurdity of a contrary holding, encountered no difficulty in ordering the deportation of the alien. Matter of M---- A----, A-1885173 (May 27, 1946).
Referring once again to the case under consideration, it is established that the respondent was unable to obtain laborers in the United States to pick onions at the rate he wished to pay. It is clear that his gain or profit was the motive and the result of the respondent's activities in inducing the alien laborers to enter the United States in violation of law, and that no matter what we call it, he profited or gained thereby. It is therefore contended that the respondent should be deported on the ground stated in the warrant of arrest.
Order: It is ordered that pursuant to 8 C.F.R. 90.3, the case be returned to the Board of Immigration Appeals for reconsideration and in the event that it does not see fit to withdraw its prior order cancelling the warrant of arrest and termination of the proceedings, for certification to the Attorney General.
Discussion: The Commissioner requests us to reconsider our decision of November 6, 1946. He disagrees with the construction that we placed upon the words "for gain" as used in section 19 (b) (1) of the act of February 5, 1917, as amended by the Alien Registration Act of 1940. We thought then, and still think, that the legislative history of this provision supported our construction. And if there be any doubt as to the propriety of our resorting to legislative history in ascertaining the intent of Congress, the Supreme Court has resolved that doubt. Mr. Justice Murphy, in speaking for the Court in Harrison v. Northern Trust Company, 317 U.S. 476, 479 (1943), said:
But words are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how "clear the words may appear on superficial examination" (cases cited).
To summarize our position, we think that Congress in employing the words "for gain" intended to restrict the application of section 19 (b) (1) to those aliens who obtained a monetary or other consideration in return for encouraging, inducing, assisting, abetting or aiding other aliens to unlawfully enter the United States. In other words, the consideration must have been paid to the alien, whose deportation is sought, in exchange for his services in effecting the illegal entry of other aliens. The legislation was aimed at alien smugglers and the like who profited directly from their smuggling and similar activities.
The Commissioner inferred from our finding of fact No. 5 that we thought that the consideration must be in a monetary form. While in most cases the consideration would undoubtedly be monetary, we did not mean to imply that it need take this form. To correct any misunderstanding, we shall amend finding of fact No. 5 by deleting the word "monetary."
In this regard, see the legislative history we set forth in our opinion in Matter of Q----, 6012494 (April 1, 1946).
Respondent in this case had no financial interest in the manner in which the two aliens he had hired in Mexico were to enter the United States. From a financial point of view, it made no difference to him whether the aliens entered this country legally or illegally. He was not to be compensated for any services he might have rendered in effecting the aliens' entry. He was paid nothing by the aliens or others for his services.
Matter of M---- A----, 1885173 (June 5, 1946) cited by the Commissioner shows that respondent in that case was to be paid in return for his services in effecting the illegal entry of the aliens.
Moreover, under the provisions of section 19 (b) (1), the Government has the burden of establishing that the respondent's unlawful acts occurred within 5 years after entry. On the basis of this record, we think that whatever inducement was offered or assistance rendered occurred while respondent was in Mexico and prior to his last entry.
Order: It is directed that finding of fact No. 5 be amended by striking therefrom the word "monetary."
It is further directed, That the order of November 6, 1946, remain in full force and effect.
In accordance with the request of the Commissioner the Board refers its decision and order to the Attorney General for review pursuant to 8 C.F.R. 90.12.
Discussion: The issue here is the meaning of the words "for gain" found in section 155 (b) (1) of title 8 of the United States Code. The section provides for the deportation of
Any alien who, at any time within 5 years after entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
The alien involved imported Mexican laborers for the purpose of harvesting an onion crop. By the terms of his contract, he was to receive 30 cents for each bag of onions harvested and he proposed to pay the smuggled alien 20 cents per bag. As a consequence he expected to make a profit of 10 cents on each bag of onions picked by the Mexican laborers. The alien received no other benefit for his participation in encouraging, inducing, assisting, or aiding the other aliens to enter the United States illegally. The one question then is whether the words "for gain" should be understood to cover a case such as this in which the alien otherwise falls within the prohibition of the statute by knowingly inducing aliens to enter the United States but does so in order to realize an anticipated profit to be obtained from the labor performed by the smuggled aliens after their illegal entry.
It is contended that the importation of the Mexicans involved no benefit to the alien in return for his assistance and aid in the smuggling and is not, therefore, within the terms of the statute. There is nothing in the statute or its legislative history which requires the conclusion that the gain referred to must be construed to mean only something of value which the alien realized in return for encouraging or assisting the illegal entry and that the purpose of the alien must have been to obtain that valuable consideration. To the contrary, I adopt the view expressed by the Commissioner that the word "gain" should be construed in a practical sense to cover cases in which illegal smuggling was encouraged or assisted for venal reasons even though the advantage which accrues to the alien be an anticipated benefit which he will receive as a result of the acts prohibited by the statute.
For the foregoing reasons the decision of the Board of Immigration Appeals is reversed.