56032/625
Decided by the Board May 13, 1941. Approved by the Attorney General.
Entry without inspection.
An alien has not entered without inspection when he presented himself for inspection, but in fact was not questioned.
CHARGE:
Warrant: Act of 1924 — Immigrant without immigration visa.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
Mr. Daniel J. Schrull, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: A warrant of arrest on the charge above stated was issued on May 7, 1940, served on May 20, 1940, and hearing accorded the respondent thereunder on May 27, 1940, at Lewiston, Maine.
The respondent waived the right to counsel at the hearing and elected to proceed.
The presiding inspector recommends that the warrant of arrest be canceled.
A copy of the Proposed Findings, Conclusion, and Order was served on the respondent by mail on May 31, 1940, and neither he nor the examining inspector have filed any exceptions thereto.
The matter is now before this Board for final review and decision.
The respondent has been released on his own recognizance.
DISCUSSION: The respondent testified that he is a native and citizen of Canada, 43 years of age, married, and that he was admitted to the United States at Calais, Maine, about July 1920, left for a 7-month stay in Canada, and was readmitted at St. John, N.B., in October or November 1921. The entry of one F---- L. F---- was verified on May 17, 1940, as of November 21, 1921, disclosing entry at Vanceboro, Maine. The respondent testified that this record referred to him "absolutely." We too believe that this is a record of the respondent's admission to the United States in 1921.
The respondent further testified that since his admission on November 21, 1921, he has never been absent from the United States for as long as 6 months at any one time and that his last entry was on November 11, 1938, at Calais, Maine, after a 1-day trip to Canada.
The respondent stated that he was never in possession of an immigration visa, but since he was lawfully admitted to the United States before July 1, 1924, for permanent residence and has not left for a period in excess of 6 months, or in any way abandoned his United States domicile, an immigration visa was not required at the time of his last entry in 1938.
In reply to the question, "At the time of your last entry to the United States were you questioned by a United States immigration officer?", the respondent replied, "They all know me there; I wasn't questioned."
The Service attorney is of the opinion that the alien entered without inspection required by the Immigration Act of 1917. We do not concur with his view. It is common knowledge that immigration inspectors on the Canadian border do not extensively interrogate persons entering the United States. When persons are known to them as lawful residents of the United States, they commonly permit them to reenter without a prolonged examination and without making a record of their entry.
In the case of Ex parte Gouthro, 296 F. 506, 511, it was stated inter alia:
While it does not appear whether or not petitioner was examined on oath by the inspector who questioned her on her arrival, I see no ground for holding that such an examination under oath is a necessary, or even a usual, part of an "inspection," within the meaning of this statute. The act nowhere so provides, and it is well known that aliens are constantly entering the United States from Canada, who are observed and questioned by the immigration inspectors at ferry docks and on railroad trains, without their being sworn or examined under oath. 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.
To charge this respondent with entering without inspection under these circumstances would, we feel, be improper. He had, in fact, presented himself for inspection.
The foregoing facts require, in line with practically identical precedents, the decision now proposed. We do not believe this case involves any question of difficulty. In deference, however, to the undoubted sincerity of the views of the Service attorney, we certify this case to the Attorney General as presenting in form a question of difficulty under section 90.12, title 8, of the Code of Federal Regulations.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent was legally admitted to the United States for permanent residence at Vanceboro, Maine, on November 21, 1921;
(3) That the respondent last entered the United States at Calais, Maine, on November 11, 1938, after a temporary absence from the United States of 1 day;
(4) That at the time of the respondent's last entry, he was not required to be in possession of an unexpired immigration visa.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under sections 13 and 14 of the Immigration Act of 1924, the respondent is not subject to deportation on the ground that at the time of entry he was not in possession of an immigration visa.
ORDER: It is ordered that the warrant of arrest be canceled.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.