A-7802114
Decided by Board July 3, 1957
Deportability — Assisting aliens to enter in violation of law — Anticipation of profit is "gain" though no money is paid.
An alien who has knowingly assisted other aliens to enter the United States in anticipation of compensation, though no money is paid at the time, is deportable under section 241 (a) (13) of the act. Anticipation of profit, no matter how small, constitutes "gain" within the meaning of the statute.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (13) [ 8 U.S.C. 1251 (a) (13)] — Unlawfully assisted aliens to enter for gain.
BEFORE THE BOARD
Discussion: Respondent is married, male, 29 years of age, a native and national of Mexico, who last entered the United States at El Paso, Texas, on February 28, 1957, by presenting his resident alien's border-crossing card. He was admitted for permanent residence on September 7, 1956, upon presentation of an immigrant visa. The special inquiry officer found him deportable on the charge set forth in the order to show cause and ordered him deported from the United States. Respondent appeals to this Board from that decision.
On January 14, 1952, respondent, under an alias, on a plea of guilty, was convicted in the United States District Court for the Southern District of California, Southern Division, of the offense of smuggling 3 aliens into the United States in violation of Title 8, United States Code, section 144. The record of conviction was not made a part of the record now before us. However, counsel admits that the conviction and sentence occurred as stated. The only question now before the Board is whether respondent, at any time prior to his last entry, knowingly and for gain, encouraged, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law. The incident is alleged to have occurred on or about December 13, 1951, near San Ysidro, California. Exhibit 2 is a record of a sworn statement made by respondent under one of the aliases used by him, J---- P---- G----, soon after his arrest on that occasion. He described an entry made by him "last night," at which time he was accompanied by a girl and 4 men whom he had arranged to assist in Tijuana. Respondent denied that he had expected to receive any money from these people. He said he was to assist in getting them to Los Angeles, because they were his friends. In his brief, counsel relies heavily on the testimony of respondent given in that statement.
The next statement given by respondent to immigration officers, April 22, 1952, under oath at the Federal correctional institution, La Tuna, Texas, also in the name of J---- P---- G----, is exhibit 6. Respondent was asked if he had used the name A---- M---- G----. He answered that he had, but denied that he had ever used any name other than those two. In exhibit 6 he stated that the men he brought to the United States did not pay him anything, because they were arrested before they got to San Diego, but they promised to pay him something after they were able to get work. Respondent stated that the assisted aliens told immigration officers that they were to pay him $100 or $50 a piece. He says that it was not true, that he expected a "tip" from them of perhaps as much as $30 each. he gave each one 20 cents to pay his own bus transportation to San Diego and stated that he would have had to pay their transportation himself from San Diego to Los Angeles, if they had not been apprehended, because none of them had any money.
In a statement on February 28, 1957, at El Paso, Texas, respondent still admitted that the people he assisted to enter near San Ysidro, California, were going to give him "a tip or a small amount of money to pay his passage from San Ysidro to Los Angeles, California." He denied that they had promised to give him a fixed amount of money for his help.
Respondent admits that the Federal Bureau of Investigation report, exhibit 5, relates to him. This report shows that he was permitted to depart to Mexico via Nogales, Arizona, on October 7, 1949, under the name of J---- M---- V---- G----. Under the name of M---- P---- G----, now established as his true name, he was granted voluntary departure to Mexico from Salinas, California, on March 10, 1950. Under the name of M---- P---- G---- he was apprehended at Spokane, Washington, and deported to Mexico on July 27, 1950. These offenses are listed in addition to the conviction under an alias for violation of 8 U.S.C. 144, for which he was sentenced to 8 months and $100 fine on January 17, 1952. Following his release from the Federal prison camp for the last-named offense, respondent was turned over to the Immigration Service for deportation to Mexico.
Respondent secured an immigrant visa on August 14, 1956, issued to him in the name of M---- P---- G----. He states that he disclosed his entire record of immigration offenses to the clerk at the consulate who filled out the form for him, and that she neglected to put the information down on the visa application form. We are impelled to state that this is the excuse of practically every alien whose immigrant visa or visa application form does not show the correct information. Respondent's visa shows only that he was in the United States previously as an illegal worker in 1951 and 1955, and as a contract laborer in 1949; it also shows, "Held in La Tuna, Texas (six months) in 1951 by USINS." It also states, "No record of deportation found." As the examining officer indicated, respondent signed and swore to the truth of the information contained in the visa.
It is true, as counsel points out, that conviction does not establish the element of gain, because the criminal section does not require that "gain" be established. In order for respondent to be deportable under the deportation section of the statute, it is necessary to establish the additional factor set forth in that section: that the respondent "encouraged, induced, assisted" the aliens to enter the United States or try to enter the United States "knowingly and for gain."
It was the belief of the special inquiry officer that the present case is controlled by Matter of R---- D----, A-2786530, 2 IN Dec. 758, interpreting the significance of the word "gain," and he so found. Counsel contends that the gratuity promised respondent by the assisted aliens was too illusive and unreliable a benefit to constitute a "gain" under the applicable statute. He believes that respondent would have brought these people to the United States even without the promise of incidental compensation.
According to respondent's statement in exhibit 2, some of the people in the group he had known only briefly, some of their names he did not know at all. He stated in 1951 that the girl with them was M---- J---- I----, whom he planned to marry. During his hearing in 1957 he was asked about her, and he stated at first that he did not recall that name. Upon his memory being refreshed by the examining officer, he said he believed he did remember her. We cannot accept counsel's plea that respondent's bringing these people in was not for gain, but that they were "almost like his own family." At one point in the record, he (respondent) declared they threatened to beat him up if he refused to help them. The statements of the assisted aliens are not in the record, but it is apparent from the questions asked respondent on April 22, 1952, that the assisted aliens stated they would pay respondent after they secured work and were able to pay, and that respondent expected payment for his assistance to them.
The Board has found in many cases, unfortunately unreported, that an agreement to pay later constitutes "gain" or "anticipated gain" even though no money is paid at the time. We have held in many cases almost identical with the one now before us that the anticipation of profit, no matter how small, brings the respondent within the deportation provision. Many cases revolve around promise to pay a respondent enough to cover the cost of his gasoline. We have held that this constitutes an "anticipated gain."
Respondent has admitted anticipating some compensation for his services, to be paid him when the assisted aliens were able to pay. This anticipated gain is sufficient to bring the respondent within the deportation provision of section 241 (a) (13). He is mandatorily deportable. He is not eligible for any form of discretionary relief.
Order: It is ordered that the appeal be and the same is hereby dismissed.