A-6017471
Decided by Board January 15, 1957
Deportability — Section 241 (a) (13), Immigration and Nationality Act — Within five years after any entry, knowingly and for gain, assisted any other alien to enter or to try to enter the United States in violation of law.
Transporting within the United States for gain aliens known to be illegally within this country does not bring respondent within the provisions of section 241 (a) (13) of the act when it is established that respondent did not know the transported aliens until after they were in the United States, did not aid or assist them in entering, and was not a party to any prearranged plan for bringing them to the United States.
CHARGE:
Order to Show Cause: Act of 1952 — Section 241 (a) (13) ( 8 U.S.C. 1251 (a) (13)) — Entry of another, unlawful helping, for gain (within 5 years of own entry).
BEFORE THE BOARD
Discussion: Respondent is a 34-year-old, married, male alien, a native and citizen of Mexico. According to the special inquiry officer, although this record does not show it otherwise, a record of lawful entry for permanent residence as of June 19, 1943, was created for respondent through suspension of his deportation under section 19 (c) of the Immigration Act of 1917, as amended. He last entered the United States at San Ysidro, California, on or about May 1, 1956, and he testified that he had gone to Tijuana, and stayed for about 3 hours. The special inquiry officer found him deportable on the charge stated in the order to show cause and ordered him deported from the United States. Respondent appeals to this Board from that order.
The facts in this case are undisputed. The statements taken separately from respondent by 4 different investigating officers of the Immigration and Naturalization Service are consistent in every detail. Respondent's brother-in-law A---- Z---- L----, who has been living in the United States under an alias, was irrigating a field the night of May 31, 1956, when 3 men hiding in the field approached him for water. Two of them were a father and son who testified that they had entered the United States illegally near Tecate, California, by climbing the wire fence there. One testified they had entered about a week before, and the other testified they had entered, he thought, on May 28, 1956. They stated they walked and hid for about a week until they met the third man, J---- P----, on a ranch where he was working near Julian and Ramona, California. J---- P---- testified that he last entered the United States from Mexico alone on April 29, 1956, about 8 miles east of San Ysidro, and that he was not inspected, and that he had no papers. He had no more work at the ranch, so he was paid off and joined them as they walked north.
The 3 assisted aliens asked A---- Z---- L---- if he could transport them to Fresno. He said that he could not, but that his brother-in-law, the respondent, lived nearby and had a car. On June 1, 1956, the 3 assisted aliens went to respondent's house with A---- Z---- L---- and after considerable discussion respondent told them he could not take them to Fresno, a distance of several hundred miles, but that he would take them to Los Angeles. They all stayed at respondent's house that night J---- P---- had been working since his entry, so he had some money. He paid respondent $100 on the night of Saturday, June 2, 1956. The 3 assisted aliens, and respondent, respondent's wife and 2 children, left the house to make the trip to Los Angeles at 9 o'clock in the evening. They continued for about 45 minutes, until they were stopped by immigration officers. The statements of all 5 of the persons concerned agree that respondent did not know the assisted aliens in Mexico, and had never heard of them nor seen them before they came to his house to make arrangements for the trip.
The special inquiry officer states that respondent has been indicted under 8 U.S.C. 1324 (a) (2), section 274 (a) (2) of the Immigration and Nationality Act, for illegal transportation of aliens, but at the time of the immigration hearing respondent had not pleaded to, nor been tried for, the criminal violation.
The special inquiry officer found that the transporting within the United States of an alien, known to be not lawfully within this country, constitutes a deportable offense under section 241 (a) (13) ( 8 U.S.C. 1251 (a) (13)), if the gain element is proved, even though it is established that the respondent did not know the transported aliens until after they were in the United States. He stated that he was satisfied that section 241 (a) (13) "is intended to render subject to deportation any aliens who engage in the activities of any of the 4 subdivisions of section 274 (a) of the Immigration and Nationality Act including transportation within the United States provided that it was done knowingly and for gain." It is the opinion of this Board that the special inquiry officer is incorrect in his holding, and that the appeal must be sustained.
Section 274 (a) of the Immigration and Nationality Act (8 U.S.C. 1324) is a section imposing criminal penalties and applies, not only to aliens but to "any person." It is completely independent of, and much broader in its application than, the deportation and exclusion sections dealing with similar offenses (sections 241 (a) (13) and 212 (a) (31)). It was the intention of Congress to make it a criminal offense, but not a deportable offense, to transport, conceal, etc., under section 274 an alien illegally in the United States, when the defendent knows, or has reasonable grounds to believe, that the illegally present alien has been in the United States less than 3 years. Section 274 does not provide that the element of "gain" must be established and subsection (a) (2) thereof does not provide that assisting the entry must be established. Martinez-Quiroz v. United States, 210 F. (2d) 763 (C.A. 9, 1954), concerns such an offense. Therein the defendant was indicted and convicted of transporting a woman in his car from a cafe to a hotel or apartment house, in the City of Brawley, California, knowing that she was in the United States in violation of law and having reasonable grounds to believe that her last entry into the United States occurred less than 3 years prior to March 11, 1953, the date of the offense. The Circuit Court found the evidence was sufficient to sustain appellant's conviction. There is no word in the report of the elements of gain or of having aided or assisted the alien concerned to enter, and no word that the defendant was an alien. None of these elements is necessary to support a conviction under section 274.
The special inquiry officer attempted to predicate his finding that respondent assisted the entry of the aliens upon a theory that their entry was not yet complete, in that they had not reached their destination, and were still, therefore, in the process of entering. We have so held in cases where the assisted aliens were picked up after entry according to a previous design. We believe the rationale is not sound in the instant case. So far as we know or can ascertain, in all cases where we have ordered deportation under section 241 (a) (13) (or its predecessor statutes) the record shows that the respondent knew the assisted aliens beforehand, or contacted them while they were still in Mexico, or knew a go-between who was arranging their entry and there was some conversation or prearrangement prior to the assisted alien's entry. This is not such a case.
We agree with counsel that the provisions of section 274 cannot be "added to" section 241 (a) (13) to make the crime of "transporting" a deportable offense, where there was no "aiding and abetting the entry." We find that respondent did not aid or abet the entry of the assisted aliens. The appeal will be sustained.
Order: It is ordered that the order of deportation be and it hereby is withdrawn.
It is further ordered that the proceedings be terminated.