56131/567
Decided by the Board January 12, 1943.
Entry by means of false and misleading statements, thereby entering without inspection.
Only when an alien has falsely claimed to be a United States citizen is the charge sustained that he entered by false and misleading statements, thereby entering without inspection.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa. Act of 1917 — Entered by false and misleading statements, thereby entering without inspection.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: After a hearing the presiding inspector found the respondent deportable on both warrant charges and recommended that he be deported to Mexico.
DISCUSSION: The respondent is a native and citizen of Mexico, 26 years of age, single, and occupationally a carpenter. The respondent last applied for admission to the United States at San Ysidró, Calif., on November 11, 1942. At that time he presented a nonresident alien's border-crossing identification card valid for 1-day trips to San Diego, Calif. No questions were asked him by the immigrant inspector, no information was volunteered by the respondent, and he was admitted as a local crosser. The respondent, at that time, actually intended to resume his work at his place of employment in San Diego, Calif., having been employed there since October 3, 1942, and was not in possession of an unexpired immigration visa. He has never at any time been admitted to this country for permanent residence.
The warrant charge described as entering by means of false and misleading statements, thereby entering without inspection, does not appear literally in the Immigration Act of 1917 and is an outgrowth of the more general charge of entry without inspection, contained in section 19 of the said act. However, the former charge has been used by the Immigration and Naturalization Service for many years, and it has always been recognized as valid both by this Board and the courts. See Ex parte Saadi, 26 F.2d 458, and cases there cited.
The charge has been used by the Immigration and Naturalization Service in almost all situations where the entry is gained by means of false and misleading statements of any kind. In most instances the charge falls in either one of two general categories. The first involves those cases where the applicant for admission concedes his alienage, but deliberately misrepresents his intention as to the duration of his stay in this country, thus gaining admission as a nonimmigrant, when, in fact, he was an immigrant. This misrepresentation may result either from verbal statements by the alien, or by the presentation of a document, such as a nonresident alien's border-crossing card, as in the instant case, without any questions being asked by the immigrant inspector and without the alien volunteering any information. In the latter situation, though no verbal statements are made by the alien, the presentation of the document is a sufficient indication of the alien's false intent, and his action in presenting the document may be considered a false and misleading statement.
The second general category includes those situations in which the applicant gains admission by falsely claiming, either verbally, or by the presentation of a document, to be a citizen.
Though the statements in the above situations are undeniably false and misleading, and admission is gained thereby, the real question to be determined is whether the entry thus gained is "without inspection" within the meaning of the Immigration Act of 1917. This act contemplates that every alien seeking admission to the United States present himself at a designated time and place, there to be inspected for the purpose of determining his admissibility to this country. Before the inspection can take place, however, the jurisdiction so to proceed must be first established by a finding that the applicant for admission is an alien. For otherwise, there is no legal authority for the inspection, American citizens not being subject to the immigration laws. Hence, when the applicant falsely represents himself as an American citizen and the immigrant inspector accepts this false claim as a fact, the alien is thereby avoiding, by means of false statements, the inspection required by the Immigration Act of 1917. In this type of case it can be truly said that the alien has entered by means of false and misleading statements, thereby entering without inspection. But, if the alienage of the applicant is not denied by him and he gains admission by other false and misleading statements, as in the instant case, the fact remains that he has subjected himself to inspection. That the alien does gain admission by false and misleading statements is undoubtedly true, but he does not, in our opinion, thus enter without inspection.
This view is supported by the case of Ex parte Gouthro, 296 F.506, in which the court, in discussing the application of this charge in a situation involving a misrepresentation by an alien of her intent with respect to the duration of her stay in this country, said at page 511:
If such an inspector is afforded a full and fair opportunity to make such an inspection of arriving aliens as he may deem sufficient, it cannot, in my opinion, be properly said that any such alien has entered "without inspection," even though it later develops that said inspector has not made as complete or successful an inspection as he could or should have made, especially in view of the discretion vested in immigration inspectors as to the nature and extent of the inspection required. * * * Even if the petitioner made false and misleading statements to him, he was not obliged to accept them as true, or to refrain from such further questions and investigation as would enable him to reach a proper conclusion as to the right of petitioner to enter the country. If a witness in court makes false statements on cross-examination, and thereby induces cross-examining counsel to forego further questioning, such a witness cannot be said to have testified "without cross-examination." The real complaint of the Government in this connection is that petitioner made false and misleading statements to the inspector. While, however, that might have been, and perhaps should be, made a ground for the exclusion of aliens, Congress has not yet seen fit to so enact. I reach the conclusion that, whether or not petitioner made false and misleading statements to the inspector, as alleged, the contention of the Government that petitioner entered without inspection is without legal basis and cannot be sustained. Ex parte Lalime (D.C.) 244 F. 279; Ex parte Guest (D.C.) 287 F. 884.
The contrary view in those cases in which the applicant falsely claims United States citizenship is expressed in the case of Ex parte Saadi, 23 F. 2d 334, affd. 26 F. 2d 458, cert. denied 278 U.S. 616, the court saying at page 336:
The fact that the alien made himself visible to an officer of the Immigration Service at the time he crossed the line, and that he crossed with other persons then entering the United States, is the basis for the claim that the requirement as to inspection was satisfied. "Inspection," to my mind, as used in the Immigration Act, means that the immigration officers are given the opportunity to check the right of the alien to enter the United States when he presents himself as an alien.
In the petitioner's case, he, with a pending examination before him, evaded such examination, and by subterfuge and misrepresentation succeeded in passing into the United States. He did not, at the point of his entry, present himself as an alien ready to submit proofs of his right to enter. By his misrepresentation alone he avoided the "inspection," which the act contemplates every alien shall be subjected to.
These two cases cited above, we feel, set forth the proper line of demarcation when the charge under consideration is supported and when not supported. To summarize, the charge should be used only in those situations in which the inspection contemplated by the Immigration Act of 1917 could not have been held because of the acceptance by the immigrant inspector of the applicant's false claims to United States citizenship, and the consequent lack of jurisdiction to proceed with the inspection. In all other instances in which alienage is found by the immigrant inspector, and the alien has submitted himself to inspection, the charge cannot be sustained, even though false and misleading statements are made to gain admission.
It must be remembered that in the cases in which the entry is gained by false and misleading statements, though not without the inspection required by the 1917 act, the usual accompanying charge is that at the time of entry the alien was an immigrant not in possession of an unexpired immigration visa. This charge, of course, is a proper charge, as in the instant case, and the alien is deportable thereon.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, native and citizen of Mexico;
(2) That the respondent last entered the United States at San Ysidro, Calif., November 11, 1942;
(3) That the respondent gained admission to the United States by presenting his nonresident alien's border-crossing identification card to the immigrant inspector;
(4) That the respondent last entered the United States in order to resume his employment here;
(5) That the respondent was not in possession of an unexpired immigration visa at the time of his last entry.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of May 26, 1924, the respondent is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under section 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he entered by means of false and misleading statements, thereby entering without inspection;
(3) That under section 20 of the Immigration Act of February 5, 1917, the respondent is subject to deportation to Mexico at Government expense.
OTHER FACTORS: The respondent declined to apply for the discretionary relief set forth in section 19 (c) of the Immigration Act of 1917, as amended. His personal record appears to be satisfactory.
ORDER: It is ordered that the alien be deported to Mexico at Government expense on the following charge: That he is in the United States in violation of the Immigration Act of 1924, in that at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by the said act or regulations made thereunder.