A-7565548
Decided by Board January 6, 1948
Entry without inspection — Evidence — What constitutes "inspection." "Constructive" possession of unexpired resident alien's border crossing card — Admission of commission of bigamy — Adequacy thereof, under the circumstances.
(1) An alien, who physically presents himself for questioning is "inspected" even though he volunteers no information and is asked no questions by the immigration authorities.
(2) An alien, deprived of the possession of her resident alien's border crossing card by a Board of Special Inquiry in November 1946 pending a decision by that Board, under the circumstances in this case, may be held to be constructively in possession of such card upon her entry into the United States in December 1946 (the Board of Special Inquiry having not yet entered a decision in her case).
(3) The Government's burden of sustaining the ground of deportation by a preponderance of the evidence that the alien admits the commission of the crime of bigamy in Mexico is not met under the circumstances in this case.
CHARGES:
Warrant: Act of 1917 — Entered without inspection.
Act of 1940 — No visa, reentry permit or border crossing identification card.
Act of 1917 — Admits crime prior to entry, to wit: Bigamy.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Acting Commissioner finding respondent subject to deportation on all the charges contained in the warrant of arrest.
Respondent is a 40-year-old, native and citizen of Mexico. She first came to the United States as a child in 1910. She lived here until 1936 when she returned to Mexico. Thereafter and until January 1946 she entered the United States as a visitor. On January 15, 1946, she was admitted to the United States for permanent residence upon the presentation of a section 4 (c) nonquota immigration visa. The day after her admission she applied for and obtained a resident alien's border crossing card, valid for 6 months. Her border crossing card was thereafter revalidated, the period to validity to expire on January 13, 1947.
Respondent last left the United States on August 6, 1946, in possession of her resident alien's border crossing card. That same day she went through a marriage ceremony in Mexico with a Mexican national. The following day she reapplied for admission at San Ysidro, Calif., and in support of her application she presented her border crossing card. The primary inspector had some doubt as to her admissibility to the United States. He apparently thought that respondent might be inadmissible as a person who admitted the commission of the crime of bigamy.
The hearing before the Board of Special Inquiry commenced on August 7, 1946. She was then interrogated with respect to her marital status. That testimony established that she had been first married in October 1923 in California, and that she had not seen her husband since 1940. Thereafter she heard, apparently through her first husband's brother, that her husband had been remarried. She assumed that he had obtained a divorce from her, though she admitted that she herself had taken no action to terminate her first marriage.
The Board of Special Inquiry was not wholly satisfied with the evidence relating to respondent's possible commission of the crime of bigamy, for it continued the hearing to give respondent an opportunity to present evidence as to the termination of her first marriage. The Board of Special Inquiry also stated that it was continuing the hearing to afford the Immigration and Naturalization Service an opportunity to investigate the alien's marital status. No exclusion order was entered by the Board of Special Inquiry.
The Board of Special Inquiry hearing was reopened about 3 months later, November 1, 1946, the alien in the meantime having remained in Mexico. At that time she presented a decree obtained from a Mexican court showing her divorce from the man whom she had married in Mexico on August 6, 1946. She had obtained this divorce in order to clarify her marital status in the belief that she could not otherwise return to her home in the United States. The Board of Special Inquiry, which at the hearing in August had advised the alien of the California law with respect to bigamy, read to her the definition of bigamy as it appeared in the Mexican Penal Code. She then admitted the commission of bigamy both under Mexican and California law. Notwithstanding this so-called admission, the Board of Special Inquiry did not then exclude her. Instead, they again continued the hearing, this time for 30 days, to permit the alien to present a copy of her first marriage certificate.
Two weeks later, on November 15, 1946, the hearing was again reopened. The alien then presented her first marriage certificate and she was again questioned with respect to her marital status. The Board of Special Inquiry was apparently still not satisfied as to her inadmissibility for it once more continued the hearing, this time for 60 days. The hearing was continued to give the alien an opportunity to contact her first husband who was then, according to the information available to her, living in Mexico City. The Board of Special Inquiry wanted the alien to ascertain from her first husband whether or not be obtained a divorce. If he had, the alien was to obtain a copy of the divorce decree to present to the Board of Special Inquiry. The Board of Special Inquiry did not exclude the alien though it retained her resident alien's border crossing card.
On or about December 12, 1946, respondent, having received news that her stepfather was dying (and he subsequently did die), reentered the United States through the port of San Ysidro. That was her last entry. The record shows that she came to the gate at the boundary line, saw no immigration officer there, and then walked into the immigration office. There were people inside the office. She did speak to them; they did not speak to her. She stepped out of the office on the American side of the border. From there she boarded a Greyhound bus. On the bus was an immigration officer. She did not speak to him; he did not speak to her. The bus took respondent to her home in Los Angeles. She returned to work and went about her everyday activities until her apprehension by the immigration authorities on September 29, 1947. So far as the record before us shows, she was kept in detention at Government expense in Los Angeles County jail until our order of November 25, 1947, directing her release.
The first deportation charge is that respondent entered the United States without inspection. It is true that respondent was not questioned by the immigration authorities when she entered the United States on December 12, 1946. If actual questioning of an alien, and only that, constituted "inspection" within the meaning of the 1917 act, the first warrant charge would be valid. But, we have always held that an alien who physically presents himself for questioning is "inspected" even though he volunteers no information and is asked no questions by the immigration authorities. See Matter of F----, 56032/625 (May 13, 1941); Matter of F----, 55994/669 (Nov. 18, 1942); Cf. Ex parte Gouthro, 296 Fed. 506 (E.D. Mich., 1924); Thack v. Zubrick, 51 F. 2d 634 (C.C.A. 6, 1931). We think that respondent in this case gave the immigration authorities ample opportunity to question her. Their failure so to do cannot now justify her deportation on the first charge contained in the warrant of arrest.
The second charge is based on respondent's failure to present a proper document at the time of entry. Counsel argues that respondent was prevented from presenting her resident alien's border crossing card because of the action of the Board of Special Inquiry in retaining this card in its possession. The Acting Commissioner in his decision points out that outstanding regulations (8 C.F.R. 166.6) provide that "no card shall be lifted and canceled if found in the possession of an alien applying for admission to the United States unless and until the holder has been excluded by a Board of Special Inquiry." However, the Acting Commissioner justifies the procedure followed by the Board of Special Inquiry in this case, first by saying that 8 C.F.R. 166.15 provides for the cancelation of a border crossing card when it is put to improper use. His second reason for supporting the action of the Board of Special Inquiry is based on the theory that retaining the border crossing card would serve to prevent its improper use and would act as an inducement for the alien to reappear before the Board of Special Inquiry. The simple answer to the Acting Commissioner's first argument is that 8 C.F.R. 166.15 relates, not to resident alien's border crossing cards, but to nonresident alien's border crossing cards. The answer to the second argument is that 8 C.F.R. 166.6 has the force and effect of law. The Board of Special Inquiry had no right to act contrary to this regulation no matter what justification it may have thought it had. Again, the improper use of the card and the inducement to the alien to return for a further hearing before the Board of Special Inquiry could have been accomplished simply by making an appropriate endorsement on the border crossing card. There was no need to act contrary to law.
But for the irregular action of the Board of Special Inquiry respondent would have been in possession of her resident alien's border crossing card at the time of her last entry. As it was, the Government had actual possession of the card. We think that under the circumstances of this case we are warranted in holding that respondent was constructively in possession of the card that was in the actual custody of the Government. Hence, we shall not sustain the second charge.
The last charge is based on respondent's admission of the commission of the crime of bigamy, the bigamy having apparently been committed, according to the Acting Commissioner, in both Mexico and California. This being a deportation case the burden is on the Government to sustain this ground of deportation by a preponderance of the evidence. We do not think that the Government has met this burden.
First, we should like to point out that if there were bigamy committed in this case, it could not have occurred in California. Respondent was not physically present in that State from the time of her second marriage until she obtained the Mexican decree terminating this marriage. Again, her second husband was not in California during that period. He was a resident of Mexico. If there was any bigamy, it must have occurred in Mexico.
The Mexican law, made part of the record during the hearing before the Board of Special Inquiry, provides for the punishment of "a person who, being united with a person in marriage which has not been dissolved or decreed invalid, contracts another marriage under legal formalities." The Government must, under this law, establish through respondent's admissions that her 1923 marriage had not been dissolved. The record evidence in this regard shows that respondent had been told by her first husband's brother that her husband had been remarried, and showed her a picture of the wedding ceremony. From that fact respondent inferred, and we do not think that the inference was unreasonable, that her first husband had divorced her. She could get no evidence either way on this aspect of the case because of the absence of her first husband in Mexico City. By reason of this defect in the record alone, we cannot make a finding that bigamy was actually committed by respondent in Mexico. And in this connection, we consider it of some significance that the Board of Special Inquiry kept continuing the hearing for further evidence with respect to respondent's marital status. The only reason for continuing the hearing must have been that the Board of Special Inquiry was not satisfied that respondent was inadmissible as a person admitting the commission of the crime of bigamy. Otherwise, respondent would have been excluded and would have been given the right to appeal from the excluding decision. The last charge cannot be sustained.
Order: It is ordered that the warrant of arrest be canceled and the proceedings dismissed.