A-6732114
Decided by Board April 27, 1948
"Remained longer" (seaman) — Deportation charge — Immigration Act of 1924 — Opportunity to depart, in case prevented from departing in accordance with the terms of his admission — Distinction in case alien's criminal act causes his incarceration.
A seaman, admitted on July 30, 1947 for a period not over 29 days, who was arrested and taken into custody the day after his admission, on the charge of smuggling opium, but who was acquitted by a United States District Court on October 17, 1947, was not to be found deportable under the Immigration Act of 1924 on a warrant of arrest for deportation issued in Oct. 1947 (while he was in custody awaiting trial on the above charge), on the ground that he had remained longer than permitted; his case was distinguishable from one where the alien's criminal act caused his incarceration.
CHARGE:
Warrant: Act of 1924 — Remained longer — seaman.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order entered by the Acting Commissioner January 20, 1948, directing the appellant's deportation to China at the expense of the steamship company, if practicable; otherwise, at Government expense, on the charge stated above.
The appellant, a native and citizen of China, male, 44 years of age, last entered the United States at the port of Boston, Mass., July 30, 1947, as a seaman. He was admitted for a period not to exceed 29 days. The record indicates that the appellant intended to reship foreign at the time of said entry.
The appellant testified that he was arrested by customs officials at Boston the day after his arrival and charged with smuggling opium. The record indicates that he was acquitted of this charge in the District Court of the United States at Boston, Mass., on October 17, 1947. The warrant for the appellant's arrest in deportation proceedings was issued October 1, 1947, while he was in custody awaiting trial on the narcotic charge and prior to his acquittal. He had been in custody since the day following his admission on July 30, 1947.
This case is to be distinguished from a case where the alien's criminal act caused his incarceration. Here, by judicial finding, the appellant was not guilty of a criminal act. An alien cannot be prevented from departing from the United States in accordance with the terms of his admission and then be found deportable for not so departing. "Lex non cogit ad impossibilia." The appellant should be given a reasonable period of time within which to depart. Failure to so depart would then render the appellant deportable.
Order: It is directed that the proceedings under the warrant of arrest issued October 1, 1947, be and the same are hereby terminated.