Opinion · United States Board of Immigration Appeals

IN THE MATTER OF O'D----, 3 IN Dec. 632 (BIA 1949)

3 IN Dec. 632

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1949-06-07
Topic
general

IN THE MATTER OF O'D----, 3 IN Dec. 632 (BIA 1949) IN THE MATTER OF O'D----. In DEPORTATION Proceedings. A-1194276Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board June 7, 1949 "Entry" — Distinction as to "entry" into the United States on which deportability predicated under Immigration Act of February 5, 1917, and Immigration Act of 1924 — Effect of "foreign" stops along air route where its termini are in the United States mainland and Puerto Rico — Bearing of traveler's knowledge of such foreign stops — Effect of "return under custody" to United States mainland from Puerto Rico. 1. A United States insular possession, like Puerto Rico, bears the relationship of a "foreign" country to the United States mainland, when considering an "entry" to the United States mainland from Puerto Rico, insofar as the Immigration Act of February 5, 1917 is concerned (sec, 1 of that act). 2.

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UpLaw has not yet analyzed IN THE MATTER OF O'D----, 3 IN Dec. 632 (BIA 1949). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF O'D----,3 IN Dec. 632(BIA 1949)
IN THE MATTER OF O'D----. In DEPORTATION Proceedings.
A-1194276
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board June 7, 1949
"Entry" — Distinction as to "entry" into the United States onwhich deportability predicated under Immigration Act ofFebruary 5, 1917, and Immigration Act of 1924 — Effect of"foreign" stops along air route where its termini are in theUnited States mainland and Puerto Rico — Bearing of traveler'sknowledge of such foreign stops — Effect of "return undercustody" to United States mainland from Puerto Rico.

1. A United States insular possession, like Puerto Rico, bears the relationship of a "foreign" country to the United States mainland, when considering an "entry" to the United States mainland from Puerto Rico, insofar as the Immigration Act of February 5, 1917 is concerned (sec, 1 of that act).

2. An alien extradited from a foreign country to stand trial here is deemed to have "entered the United States" (Blumenv.Haff,78 F. (2d) 833, C.C.A. 9, 1935), and likewise (insofar as the Immigration Act of February 5, 1917 is concerned) in the case of an alien brought here under custody of New York City detectives from Puerto Rico to the United States mainland in March 1945, where the alien had voluntarily fled to Puerto Rico (the "foreign" country in this instance) from the United States mainland to avoid criminal prosecution in the State of New York.

3. Where the evidence of record fails to show the traveler had knowledge that the air route selected, which had both termini in the United States, would carry him across our border and into a foreign country, his flight between these termini is contemplated as nonstop, though the plane stopped foreignenroute(Cuba, Haiti, Dominican Republic), and he will not be deemed to have entered from "foreign" because of any of these planestops; for the alien is not charged with the duty of informing himself of the carrier's projected journey (a burden necessarily imputed to seamen by the very nature of their calling), and the intent of the carrier to stop-over foreign, unknown to the alien, will not be imputed to him.

4. An alien, who entered the United States mainland in 1920, in transit to Spain but stayed here, and who fled from the United States mainland to Puerto Rico in March 1945 to avoid criminal prosecution in the State of New York, effects an "entry (upon which deportation charges under the Immigration Act of 1917 can be predicated) upon his return to the United States mainland in May 1945 from Puerto Rico, in the custody of New York City detectives.

5. Such alien has not effected an "entry" upon which deportation charges under the Immigration Act of 1924 can be predicated because the term "United States" as defined under section 28 (a) of that act includes Puerto Rico and thus he is not deemed an "immigrant" as defined in section 3 of that act (i.e., an alien departing from any place outside the United States destined for the United States), when coming to Puerto Rico from the United States mainland or when coming to the United States mainland from Puerto Rico.Page 633

CHARGES:

Warrant: Act of 1918, as amended — Violation of the Passport

Act. Act of 1924 — No immigration visa.

Act of 1917 — Admits commission of crimes prior to entry, to wit: Grand larceny; bigamy and bigamy.
BEFORE THE BOARD

(June 7, 1949)
BEFORE THE BOARD

(June 7, 1949)
Discussion:This is an appeal from an order entered by the Assistant Commissioner on December 15, 1948, directing the respondent's deportation to Spain on the charges stated in the warrant of arrest.

The respondent, a native and citizen of Spain, male, married, 48 years of age, originally entered the United States from Cuba on August 20, 1920, in transit to Spain, but remained permanently. The respondent on March 21, 1945, arrived via plane at the port of San Juan, P.R., from Miami, Fla., and was landed as a United States citizen. He fled to Puerto Rico following his indictment at New York City for the crime of grand larceny. He was apprehended and returned to continental United States through the port of Miami, Fla., on May 22, 1945, in the custody of New York City detectives. He was excluded by a Board of Special Inquiry on criminal grounds and for violation of Presidential Proclamation No. 2523, but paroled into the United States to stand trial. He was convicted in New York City on June 5, 1945, on a plea of guilty to the crime of grand larceny, first degree, committed on or about August 13, 1944, for which he was sentenced to the State prison for a maximum period of 5 years. During the exclusion proceedings he admitted the commission of the crime of bigamy in New York State during 1934 and in Connecticut during 1944.

This Board on August 3, 1945, first considered the respondent's appeal from his exclusion on May 22, 1945. We observed that since the plane on which the respondent arrived had stopped foreignenrouteand therefore was in fact arriving from a foreign port, the respondent would be subject to exclusion both under the 1924 act as well as the 1917 act. We ordered the hearing reopened for the introduction of evidence relative to his admissibility under all immigration laws.

We again considered the case in exclusion proceedings on July 8, 1947. We adopted the findings of fact and conclusions of law prepared by the Assistant Commissioner in his opinion of March 6, 1947. We ordered the respondent's exclusion on the documentary and criminal grounds stated above. When it became apparent that it was impracticable to return the respondent to Cuba, the Commissioner on motion moved the entry of an order for his deportation to SpainPage 634under section 20 of the Immigration Act of 1917, as amended. We denied the Commissioner's motion for the reason that in order to apply section 20 (supra) the case should have originated under a warrant of arrest as a deportation proceeding. In our opinion we indicated that a proceedingde novomay be instituted under a warrant of arrest and advantage may then be taken of section 20 of the Immigration Act of 1917, as amended.

Pursuant to the foregoing a warrant for the respondent's arrest in deportation proceedings on the following charges: (1) Act of 1918, violation of Passport Act; (2) act of 1924, no immigration visa; (3) act of 1917, admits crime prior to entry, to wit, grand larceny, bigamy and bigamy, was issued November 24, 1947. The Assistant Commissioner in his opinion of December 15, 1948, sustained the three expulsion charges stated above and ordered the respondent's deportation to Spain under section 20 of the 1917 act. The Assistant Commissioner in light of recent court decisions1concludes that the respondent last entered the United States at San Juan, P.R., on March 21, 1945, and therefore is amenable to charges laid under the 1924 act as well as the 1917 act, since the effect of an arrival in Puerto Rico on a plane which had stopped foreignen routeis to render the subsequent arrival an entry within the meaning of the immigration laws.

We are of the opinion that the respondent last entered the United States at the port of Miami, Fla., on May 22, 1945. We think this case distinguishable both from the recent court decisions referred to by the Assistant Commissioner and also those decisions2which are concerned with what constitutes a "voluntary" as opposed to an "involuntary" entry. For the reasons stated below we think we are on firmer ground if we predicate the respondent's deportability on his entry at Miami, Fla., on May 22, 1945.

The term "immigrant" as defined in section 3 of the 1924 act "means any alien departing from any place outside the United States destined for the United States" with certain exceptions not pertinent here. This, the courts have held, presupposes a voluntary departure and destination (U.S. ex rel. Bradleyv.Watkins, supra). For the purposes of the 1924 act the term "United States" when used in a geographical sense means the States, the Territories of Alaska, Hawaii, the District of Columbia, Puerto Rico, and the Virgin Islands (section 28 (a), Immigration Act of 1924).

This same term, however, for the purposes of the 1917 act has beenPage 635given a different definition by Congress. Section 1 of that act provides in part as follows:
That the term "United States" as used in the title as well as in various sections of this act shall be construed to mean the United States, and any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone; but if any alien shall leave the Canal Zone or any other insular possession of the United States and attempt to enter any other place under the jurisdiction of the United States, nothing contained in this act shall be construed as permitting him to enter under any other conditions than those applicable to all aliens.


In the instant case there is no question but that the respondent's departure for Puerto Rico from the mainland was voluntary. His voluntary destination, however, was another part of the United States as that term is defined in the 1924 act. Nor did he leave the Canal Zone or any other insular possession of the United States and attempt to enter any other place under the jurisdiction of the United States (sec. 1, 1917 act,supra). There is no showing of record that the respondent had knowledge that the route he selected would carry him across our border and into a foreign land. The intent of a carrier, unknown to the alien, to carry him across a border and back again, upon a route whose termini are within the United States cannot be imputed to him.Di Pasqualev.Karnuth(supra). We are of the opinion that the facts of the instant case render theDi Pasqualedecision (supra) more in point than the seamen cases cited by the Assistant Commissioner (see footnote 1). In those cases the alien seamen either had knowledge or were charged with the duty of having knowledge that the pursuit of their calling would take them to a foreign port or place. In other words, the alien passenger is not charged with the duty of informing himself of the carrier's projected journey, a burden necessarily imputed to seamen by the very nature of their calling. By this authority, therefore, we find that the respondent did not effect an entry into the United States, as that term is defined in the 1917 or 1924 acts, at San Juan, P.R., on March 21, 1945, because his flight is contemplated as nonstop between the United States mainland and an insular possession of the United States.

Concerning the respondent's entry at Miami on May 22, 1945, in custody of detectives, the Assistant Commissioner has stated, "In the instant case the subject alien was taken out of the United States (Puerto Rico) under custody of law-enforcement officers and was brought into the United States (Miami, Fla.) still under such custody. Such arrival lacks the voluntary feature required to constitute an entry into the United States within the meaning of the immigration laws (Matter of D----,A-5954543 (1947) andMatter of T----,55796/790 (1946)). Such `forced' departure from the United States and subsequent `forced' return to the United States is to be distinguishedPage 636from the type of extradition case where the alien voluntarily departs from the United States, is subsequently apprehended in foreign territory by law-enforcement officers and returned to the United States in extradition proceedings."

We do not agree. Insofar as the Miami entry is concerned, we are confronted with charges laid under two separate and distinct acts. Under the 1924 act respondent was not required to present documents because he was not an alien "departing from any place outside of the United States destined for the United States" as that term (United States) is defined in section 28 (a) of the 1924 act. Nor was he required to present a passport under the regulations (175.44 (e), title 8 C.F.R.).

The criminal charges laid under the 1917 act, however, present a different question. Insofar as they are concerned we feel that the principle enunciated inBlumenv.Haff,78 F. (2d) 833(C.C.A. 9, August 12, 1935), controls. In that case the circuit court cited several Supreme Court decisions3referred to in theDelgadilloopinion (supra,footnote 2) to support their denial of the alien's plea that inasmuch as he had reentered the United States in custody of an officer and involuntarily, he was not subject to deportation. The court affirmatively found that an alien extradited to the United States from England to stand trial for the crime of grand larceny had "entered" the United States within the meaning of the 1917 act and was thereafter subject to deportation proceedings. Under the exception found in section 1 of the 1917 act an insular possession of the United States (Puerto Rico) bears the same relationship to the continental United States as does a foreign country. Accordingly, we find that the respondent effected an "entry" at Miami, Fla., on May 22, 1945, when he was returned to the mainland from Puerto Rico in custody of officers to stand trial at New York City, insofar as the 1917 act (criminal charges) is concerned.

We are of the opinion that the Supreme Court's decision in theDelgadillocase (supra) is readily distinguishable from the facts in the case before us. The Supreme Court in referring to the language of former decisions4which from their context suggested that every return of an alien from a foreign country constitutes an "entry" within the meaning of the 1917 act said, "These were cases where the alien plainly expected or planned to enter a foreign port or place. Here he (the alien) was catapulted into the ocean, rescued, and taken to Cuba. He had no part in selecting the foreign port as a destination. His itinerary was forced on him by wholly fortuitous circumstances."Page 637

Here the respondent voluntarily planned to flee to an insular possession of the United States. There were no fortuitous circumstances present. He was not "catapulted" into Puerto Rico. He departed from the mainland to avoid criminal prosecution in the State of New York. That his return from an insular possession to the mainland constitutes an entry under the 1917 act is clearly spelled out in the exception placed by Congress in section 1 of that act (supra). The fact that he was in custody was an incident of his own wrongful act while a resident alien on the mainland. We think that it is clear from the plain language of the exception found in section 1 of the 1917 act that Congress intended to give no assurance to a resident alien, regardless of the circumstances under which he arrived, that he would not be amenable to the 1917 act in the event he "shall leave the Canal Zone or any other insular possession of the United States and attempt to enter any other place under the jurisdiction of the United States." Congress, however, did not place these restrictions on a resident alien insofar as the 1924 act is concerned. For the foregoing reasons, we find the respondent subject to deportation solely on the criminal charges stated above.Other factors:The Assistant Commissioner has fully discussed the facts of the case relating to the grant of discretionary relief. We agree with the Assistant Commissioner that on this record discretionary relief is not warranted.Order:It is directed that the appeal be and the same is hereby dismissed, the alien to be deported to Spain at the expense of the transportation company, if practicable, otherwise at Government expense, solely on the criminal charges stated in the warrant of arrest.Page 638
  1. Schlimmgenv.Jordan,164 F. (2d) 633(CCA 7, 1947);Rooversv.Kessler,90 F. (2d) 327CCA 5, 1937). ↩
  2. Delgadillov.Carmichael,92 L. ed. 69(November 10, 1947),332 U.S. 388,1947;U.S. ex rel. Bradleyv.Watkins,163 F. (2d) 328(CCA 2, July 1947);Di Pasqualev.Karnuth,158 F. (2d) 878(CCA 2, January 1947). ↩
  3. Claussenv.DayandStapfv.Corsi,cited in footnote 4. ↩
  4. U.S. ex rel. Claussenv.Day,279 U.S. 398;U.S. exrel. Stapfv.Corsi,287 U.S. 129; andU.S. ex rel. Volpev.Smith,289 U.S. 422. ↩