Opinion · United States Board of Immigration Appeals

IN THE MATTER OF B----, 2 IN Dec. 172 (BIA 1944)

2 IN Dec. 172

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1944-07-28
Topic: general

IN THE MATTER OF B----, 2 IN Dec. 172 (BIA 1944) IN THE MATTER OF B----. In EXCLUSION Proceedings. A-6043971 (56127/46)Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board July 28, 1944. Exclusion — Admissibility while under indictment — Appeal — "Reopened" hearing — Evidence. 1.

Citator

UpLaw has not yet analyzed IN THE MATTER OF B----, 2 IN Dec. 172 (BIA 1944). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF B----,2 IN Dec. 172(BIA 1944)

IN THE MATTER OF B----. In EXCLUSION Proceedings.

A-6043971 (56127/46)

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by Board July 28, 1944.

Exclusion — Admissibility while under indictment — Appeal —"Reopened" hearing — Evidence.

1. Where admissibility under immigration laws is established by an alien before a Board of Special Inquiry, it is required to authorize admission notwithstanding the fact the alien is under indictment here for commission of crime.

2. The "pigeonholing" of an alien's appeal from an excluding decision of a Board of Special Inquiry for a period of about 17 months violates the law and amounts to a denial of fair hearing.

3. Where an alien complied with requirements of the immigration laws at time of application for admission and was improperly excluded and "paroled" into the United States, his admission was directed, on appeal, as of date of his original application.

4. In this case, evidence adduced at "reopened" hearing showing his conviction for crime during period of his "parole" was disregarded in determining the appeal.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917 — Admits commission and convicted of crime: conspiracy to smuggle and defraud.

BEFORE THE BOARD

Discussion:The appellant, a native of Russia, whose citizenship is uncertain, applied for admission to the United States for permanent residence at the port of New York on June 30, 1942, accompanied by his wife and child. He presented a document acceptable in lieu of a passport and a nonquota immigration visa issued under section 4 (a) of the Immigration Act of 1924, based upon his wife's citizenship. Hearings to determine the admissibility of the appellant, his wife and child, were held on July 4, July 31, August 14, August 15, and August 18, 1942. At the conclusion of those hearings, the appellant's wife was discharged as a citizen of the United States and his son was admitted as a nonquota immigrant. The appellant, however, was excluded on the ground above stated and he appealed.

Pursuant to section 136.4 of title 8, Code of Federal Regulations, the appellant's record was forwarded to the Commissioner of Immigration and Naturalization for transmission to the Attorney General. The Central Office of the Immigration and Naturalization Service, however, on August 26, 1942, returned the record to the District DirectorPage 173at New York with the request that it be retained at that port until the conclusion of criminal prosecution then pending against the appellant in the United States District Court for the Southern District of New York. Authority was also given to parole the appellant into the custody of his attorney. Insofar as the record before us shows, the appellant was not advised of the status of his appeal or of the action of the Central Office of the Immigration and Naturalization Service until January 20, 1944, approximately 17 months after the conclusion of his original hearings.

On that date the appellant was advised that under the authority of Central Office letter of August 26, 1942, his case was being reopened. Reopened hearings were held on January 21, 1944, and on February 4, 1944, during which time there was admitted into evidence a certified copy of an indictment filed against the appellant and divers other persons in the District Court of the United States for the Southern District of New York on June 23, 1937, charging the appellant in a first count with conspiracy to commit an offense against the United States, to wit: to violate title19, United States Code, section 1593(a) and (b); and in a second count with conspiracy to defraud the United States Government in the exercise of its governmental function (title 18, U.S.C., section 88). Photographic reproductions of the court's docket entries indicate that the appellant pleaded not guilty to the indictment on August 18, 1942, but that thereafter on October 9, 1942, he withdrew his plea of not guilty and pleaded guilty. On the same day he was sentenced to imprisonment for a term of 6 months on each count, the sentence to run concurrently. Execution of sentence was suspended, however, and the appellant was placed on probation for 2 years. At the end of the reopened hearings, the appellant was again excluded on the grounds that he was —

A person who has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Conspiring to commit an offense against the United States by smuggling and clandestinely introducing merchandise into the United States and conspiring to defraud the United States Government in the exercise of its governmental function (18 U.S.C. 88), and as a person who admits having committed felonies or other crimes or misdemeanors involving moral turpitude, to wit: Conspiring to commit an offense against the United States by smuggling and clandestinely introducing merchandise into the United States and conspiring to defraud the United States Government in the exercise of its governmental function (18 U.S.C. 88), and smuggling dutiable merchandise, to wit: Diamonds, into the United States without declaring same, thereby defrauding the revenue of the United States in violation of19 U.S.C. 1593(a and b).

For reasons which will hereinafter appear, we have considered only the ground of exclusion urged on August 18, 1942, at the close of the original hearings and have disregarded the matter developed at the reopened hearings and the additional grounds of exclusion urged on account thereof.Page 174

The appellant applied for admission to the United States for permanent residence on June 30, 1942. Hearings before a Board of Special Inquiry were had and concluded on his application for admission and resulted in his exclusion on a criminal ground. The appellant appealed from that excluding decision. Although it was then known to the Board of Special Inquiry that the appellant was under indictment for a crime committed 5 years earlier, he had not as yet been convicted of any crime and, unless he admitted the commission of a crime involving moral turpitude at the time of the hearing, he was not inadmissible under the immigration laws. If the appellant established his admissibility, the Board of Special Inquiry was required to admit him notwithstanding that he was charged with crime.

A review of the original hearing shows clearly that the appellant did not admit the commission of any crime. The Board of Special Inquiry, knowing that the appellant was under indictment, examined him at great length regarding his trip to New York in 1935, when he allegedly smuggled diamonds through the United States Customs. The appellant testified that a business associate in Paris, France, offered to pay his passage to and from the United States if he would deliver a valise to a designated person in New York. The appellant gladly accepted the offer. He is firm in his assertion that prior to his arrival in the United States in 1935 he did not know that diamonds were secreted in the valise he was asked to deliver. Not until actual delivery was made to the designated person in New York, was the appellant informed that he had brought diamonds into the United States. The appellant does admit that he suspected that diamonds were secreted in the valise but he testified that he made no inquiries to confirm his suspicions prior to embarkation or arrival. At the close of the hearing, the question and the appellant's reply thereto appear as follows:

Q. Do you admit committing the crime of smuggling merchandise into the United States and conspiracy to smuggle merchandise into the United States in violation of law?

A. I do not admit it, I was not in conspiracy; I admit that I did bring merchandise to the United States without declaration, but I do not admit that I was in conspiracy.

Upon this answer apparently the exclusion of the appellant was based. The appellant, however, expressly denied that he conspired to commit the crime of smuggling, one of the offenses for which he was indicted. That part of his answer which admits that he brought merchandise to the United States without declaration is not an admission of the crime of smuggling, an offense, incidentally, which the appellant was not charged with committing in the indictment. The crime of smuggling, as defined in section 1593 (a) and (b) of title 19,Page 175U.S.C., requires that the smuggling or importation be done knowingly and with intent to defraud. The appellant has consistently denied knowing that dutiable merchandise was secreted in one of his valises. He has not, therefore, admitted facts sufficient to constitute the crime of smuggling. Furthermore, the admission as manifested by the answer is not clear and unequivocal. The words, "I admit that I did bring merchandise to the United States without declaration" is as consistent with innocence as it is with guilt. It might only have been an expression of his realization that he was the unwitting tool of a smuggler. His testimony, as a whole, supports the view that he was merely acknowledging the accomplished deed rather than the commission of a crime. It is true that section1593(c) of title 19, U.S.C., creates a presumption of guilt sufficient for conviction from mere possession of smuggled goods unless the defendant shall satisfactorily explain his possession to the jury. It is not for us as an administrative body to weigh the sufficiency of the appellant's explanation (Howesv.Tozer,3 F. (2d) 849(C.C.A. 1st, 1925);U.S. ex. rel. Castrov.Williams,203 Fed. 155 (S.D.N.Y. 1913);Matter of C----, 56048/346 (Dec. 20, 1940, reversed by Attorney General Jan. 16, 1941)). It is enough that the elements of the crime, aside from the presumption, are lacking and that the admission, if there be one, is not unequivocal.

Thus, at the conclusion of his hearing before the Board of Special Inquiry on August 18, 1942, the appellant had established his admissibility to the United States for permanent residence. He appealed from the adverse finding of that Board. There can be no doubt that the Central Office of the Immigration and Naturalization Service may direct that hearings be reopened for the purpose of introducing new or additional evidence and to authorize the appellant's parole into the United States pending the determination of his appeal. But in this case no new or additional evidence was in existence, nor were the hearings reopened for the purpose of introducing such evidence. We fail to find any authority in the law or regulations which permits indefinite delay in transmitting appeals for final determination. In this case the hearings remained closed after the filing of an appeal for 17 months without any order directing a reopening and without transmission of an appeal to this Board. The effect and presumably the purpose of the action of the Immigration and Naturalization Service in paroling the appellant and in holding his appeal until after the termination of the criminal prosecution was to assign to the appellant the fictional status of a parolee, that is, a person who though physically within the United States is legally outside its gates. In that way his possible conviction under the indictment could be legally regarded as having occurred prior to entry, although, in point of fact, he could not be tried until his physical entry into the United States.Page 176

When an alien applies for admission to the United States, he is entitled to a prompt determination of his admissibility (sec. 17, Immigration Act of 1917, 8 U.S.C. 153). Parole into the United States of an applicant for admission presupposes that he is inadmissible, otherwise he should be admitted, not paroled. In this case, since the appellant's hearings were closed, his appeal should have been forwarded notwithstanding his parole. The mere "pigeonholing" of his appeal for a period of 17 months violates the law and amounts to denial of a fair hearing. In the absence of an admission of the commission of crime, the appellant's liability to conviction in the United States in the event of his entry is not relevant to the question of his admissibility on an application made prior to conviction. We find that the appellant should have been admitted for permanent residence by the Board of Special Inquiry on August 18, 1942. If he were thereafter convicted of crime, deportation proceedings could be instituted to effect his removal from the United States if such proceedings were appropriate.

Inasmuch as the appellant did not admit the commission of a crime when he applied for admission to the United States and had in all respects complied with the requirements of the immigration laws for permanent residence, his admission to the United States will be directed as of August 18, 1942. His parole into the United States had no legal basis save as an expedient pending determination of his appeal since he was not excludable. For that reason, there were, or should have been, no exclusion proceedings pending, which could have been reopened in 1944. The reopened hearings held in 1944, and the evidence then introduced, must be disregarded in determining the appeal.

In view of our conclusion, it is not necessary to discuss whether the crimes of which the appellant was convicted in the United States District Court for the Southern District of New York in October 1942 involve moral turpitude. Since the brief of counsel for the appellant is directed to a discussion of the turpitude involved in the appellant's offenses, our conclusion likewise renders unnecessary the consideration of the points raised by counsel.Findings of Fact:Upon the basis of all the evidence presented, it is found:

(1) That the appellant is an alien, a native of Russia, citizenship unknown;

(2) That the appellant is applying for admission for permanent residence;

(3) That the appellant presents document acceptable in lieu of a passport and a valid nonquota immigration visa;

(4) That the appellant admits that he brought dutiable merchandise into the United States in 1935 without declaring the same toPage 177customs officials, but denies having knowledge at that time that he was carrying such merchandise;

(5) That the appellant was excluded on August 18, 1942, by a Board of Special Inquiry on the ground that he admitted the commission of a crime involving moral turpitude, to wit: Smuggling, from which decision the appellant filed an appeal on the same day;

(6) That the appellant was paroled into the United States in the custody of his attorney to answer an indictment filed against him in the United States District Court for the Southern District of New York;

(7) That the record on appeal was not forwarded to the Attorney General until February 22, 1944, nor were the hearings ordered reopened for any purpose until January 20, 1944;

(8) That the alleged reopened hearings were conducted by a Board of Special Inquiry on January 21, 1944, and on February 5, 1944, at which time evidence was introduced to show that the appellant was convicted in the United States District Court for the Southern District of New York on October 9, 1942, of the crimes of conspiracy to commit an offense against the United States, to wit: To violate title19, U.S.C., section 1593(a) and (b); and conspiracy to defraud the United States in its governmental function, both of which crimes were committed in 1935.

Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:

(1) That at the conclusion of the hearing on August 18, 1942, the appellant was not inadmissible under section 3 of the Immigration Act of 1917 on the ground that he admitted the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Smuggling dutiable merchandise into the United States;

(2) That under section 17 of the Immigration Act of 1917 and under sections 136.4, 136.5, and 136.6 of title 8, Code of Federal Regulations, the failure to forward the appellant's appeal to the Attorney General for a period of 17 months amounted to denial of a fair hearing;

(3) That inasmuch as the appellant was not inadmissible to the United States on August 18, 1942, there was no legal basis or authority to parole rather than admit the appellant to the United States save as an expediency pending final determination of his appeal. The reopened hearings conducted in 1934 must therefore be disregarded.

Order:The appellant's appeal filed on August 18, 1942, is sustained; the appellant shall be recorded as having been admitted for permanent residence as of August 18, 1942.Page 178