A-5173361
Decided by Board September 19, 1950
"Entry" into the United States within meaning of Immigration Laws.
An alien, who departed from the United States to Mexico in 1944, and returned to the United States in 1944, while on furlough from the United States Army (wherein he served from October 12, 1942, to October 6, 1945, when he was honorably discharged) is deemed to have made an entry (when he returned in 1944) within the contemplation of the immigration laws; and he was deemed to have been deported in 1949 pursuant to law on the basis of such entry (and in addition, it was too late to attack the validity of the order of deportation executed in this case in 1949 as one not in pursuance of law; see 4 IN Dec. 173).
CHARGES:
Warrant: Act of 1924 — No immigration visa. Act of 1929 — Arrested and deported-reentered within 1 year.
Lodged: Act of 1917 — Admits crime prior to entry: Burglary. Act of 1917 — Convicted of crime prior to entry: Burglary and larceny.
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated August 18, 1950, wherein deportation of the subject hereof to Mexico has been directed on all of the charges hereinabove set forth, except as to the offenses of larceny.
The subject of this proceeding testified that he was born in Guadalajara, Jal., Mexico, on August 10, 1907, and that he is a citizen of the country of his nativity. He further testified that he last entered the United States from Mexico at Del Rio, Tex., in an automobile accompanied by two Army officers.
The evidence of record shows that the appellant first entered the United States at Laredo, Tex., during the year of 1924 or 1925 and that he remained here until about the month of June 1944. It is asserted that his mother died and for that reason he proceeded to Mexico. He reentered the United States either during the month of November or December 1944 at El Paso, Tex., at which time he presented evidence of furlough from the United States Army, he having been inducted on October 12, 1942. He was honorably discharged from the United States Army on October 6, 1945.
The evidence of record also shows that the subject hereof was deported from the United States on January 21, 1949, and he alleges that although he twice applied for permission to reapply for admission he had received no response to his letters of application. Notwithstanding the prior deportation, he nevertheless entered the United States in the circumstances hereinabove first set forth.
On August 10, 1939, the alien was convicted in Illinois for stealing United States currency in the value of $14, but because of alleged irregularity in procedure this offense will not be considered in connection with the present proceeding.
On July 29, 1935, the appellant was convicted in Texas for the offense of burglary for which offense he was sentenced to 3 years' imprisonment, but the execution thereof was suspended during good behavior. He was also charged with absence without leave in 1945 by the military authorities for which he was sentenced to 3 months' imprisonment. The offense of burglary in 1935 forms the basis for the present order of deportation on the charges placed against the alien during the course of the proceeding.
No record of the entry of the appellant can be located, either in 1925, 1944, or 1949, and inasmuch as he was coming to the United States to remain, his entry subsequent to the approval of the Immigration Act of 1924 (approved May 26, 1924), required him to have a consular immigration visa, as a prerequisite to lawful admission (8 U.S.C. 213). Inasmuch as he was not in possession of such document, he is subject to deportation pursuant to the provisions of that act (8 U.S.C. 214, 215). In addition thereto, the evidence shows this individual was arrested and deported from the United States on January 21, 1949, and his subsequent entry without permission, as required by statute, renders him subject to deportation on the additional charge hereinabove set forth, to wit: Reentered after arrest and deportation pursuant to law (act of March 4, 1929).
That this alien is subject to deportation is established adequately by the evidence of record.
The facts in this case are discussed in considerable detail in the opinion of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, and it is believed unnecessary to repeat all of the discussion therein contained.
The principal contention of counsel on appeal is that the alien's entry in 1944 was as a member of the Armed Forces of the United States and that as such he did not effect entry to the United States within the meaning of the law and that by reason thereof he was not deported in pursuance of law in 1949.
As hereinabove set forth no record of lawful admission of the appellant can be located. Section 4 (b) of the Immigration Act approved May 26, 1924 (8 U.S.C. 204) defines a nonquota immigrant as an immigrant previously lawfully admitted to the United States who is returning from a temporary visit abroad.
The act of June 28, 1940 ( 54 Stat. 673, 8 U.S.C. 451) provides "any alien seeking to enter the United States who does not present a visa (except in emergency cases defined by the Secretary of State), a reentry permit or a border crossing identification card, shall be excluded from admission to the United States."
Section 14 of the act approved May 26, 1924 (8 U.S.C. 214), provides:
Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this act to enter the United States * * * shall be taken into custody and deported in the same manner as provided in sections 19 and 20 of the Immigration Act of 1917 * * * (8 U.S.C. 155).
The evidence of record in this case shows that the alien proceeded to Mexico in 1944 because of the death of his mother while he was on furlough. It cannot be disputed that according to his own testimony he reentered the United States physically from Mexico in 1944. In the case of Schoeps v. Carmichael, 177 F. (2d), 391 (C.A. 9, 1949), at page 396, the court said:
In order for an alien's return to this country to constitute an "entry" as contemplated by 8 U.S.C.A. sec. 155 (a) ( supra), his departure must have been voluntary, with knowledge that his destination is foreign. The intention to return to this country, whether after a mere few hours or an extended vacation abroad, is immaterial. If the length of time spent abroad is an element to be considered, it must be made so by Congress, not the courts."
Delgadillo v. Carmichael, 332 U.S. 388 (1947), 68 S. Ct. 10, 92 L. Ed. 17; United States ex rel. Claussen v. Day, 279 U.S. 398 (1929), 49 S. Ct. 354, 73 L. Ed. 758; United States ex rel. Stapf v. Corsi, 287 U.S. 129 (1932), 53 S. Ct. 40, 77, L. Ed. 215; Carmichael v. Delaney, 170 F. (2d) 239 (C.A. 9, 1948); Di Pasquale v. Karnuth, 158 F. (2d) 878 (C.C.A. 2, 1947).
The departure of the subject alien was voluntary in all respects and, therefore the case of U.S. v. Karnuth, 1 F. Supp. 370, is not analogous to the case at bar.
In addition, it is too late to attack the validity of the order of deportation executed in this case in 1949 as one not in pursuance of law. In the case of U.S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C.C.A. 2, 1932), the court said "it is now too late to attack that deportation as one not in pursuance of law." This Board has held similarly on numerous occasions. See W---- J---- R----, A-3844720 decided April 29, 1949. The courts have supported this position, and in the case of U.S. ex rel. Steffner v. Carmichael, 183 F. (2d) 19, June 21, 1950 (C.C.A. 5), the court said:
Where an alien has been deported from the United States pursuant to a warrant of deportation, we do not think it permissible to allow a collateral attack on the previous deportation order in a subsequent deportation proceeding unless we are convinced there was a gross miscarriage of justice in the former proceeding.
We believe the principal problem in this case is one pertaining to possible discretionary action predicated upon the alien's long residence in the United States and the hardship to obtain to the six United States born children in the event the subject parent should be deported.
The appellant alleged that he was first married in 1928 and his wife died in 1943, and he further alleged that during that year he remarried and the second wife died in 1946. There is some question as to these allegations as hereinafter explained. The alien asserts that he is the father of six children born in this country, all of whom are citizens of the United States, their ages ranging from 12 to 20 years, but these children were apparently born out of wedlock, as hereinafter explained. It is said that not only these children are dependent upon the subject but he also maintains his sister and her offspring.
The criminal offenses herein set forth were committed in 1935 and 1938. On our previous consideration of this case on June 18, 1948, we pointed out that the six native-born children hereinabove referred to were the offspring of a common-law relationship of the alien with one L---- R----, a citizen of this country. The record indicates that she died in 1943 and the custody of the said children was awarded by the juvenile court in Chicago, Ill., to the appellant's sister-in-law. The sister-in-law previously stated that she received $76 every 15 days from the Office of Dependent Children, Cook County, Ill., for the support of the said children and that the appellant contributed very little to their support, subsequent to his discharge from the Army.
Despite the fact that the alien has resided in the United States for an aggregate of almost 25 years and the fact that the criminal offenses herein set forth occurred many years ago, the record pertaining to this alien's case, which record must be considered in its entirety — since the question before us is now one of discretionary relief-including all of the representations of counsel, leads us to the conclusion that this alien does not sufficiently establish that his case is one wherein other than dismissal of the appeal is warranted.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, be and the same is hereby dismissed.