A-3894495
Decided by Board February 5, 1953
Smuggling aliens: Violation of act of 1940, meaning of words "for gain" when relative involved.
The bringing of a niece to the United States as a family affair without any commercial aspects, with only incidental benefits accruing such as domestic help in the home, does not constitute assisting an alien "for gain," within the meaning of section 19(b)(1) of the Immigration Act of 1917, as amended by section 20 of the Alien Registration Act of June 28, 1940.
CHARGE:
Warrant: Act of 1940 — Assisted alien to enter United States in violation of law.
BEFORE THE BOARD
Discussion: This case is before us on the basis of the Acting Assistant Commissioner's decision of May 15, 1952, which directed the respondent's deportation and certified the case to this Board for final decision in accordance with 8 C.F.R. 90.3(b).
The respondent is a 49-year-old male, native and citizen of Mexico, who was lawfully admitted to the United States for permanent residence on June 18, 1928. He has maintained his domicile in this country since that time. He last entered the United States during September 1950 at which time he was in possession of a resident alien's border crossing identification card. He was then accompanied by his niece. He assisted her in entering the United States illegally on the basis of evidence indicating that she was born in this country although she had actually been born in Mexico and is a citizen of that country. The respondent's niece had been employed as a domestic in the respondent's home at Chicago, Ill., from September 1950 until March 1952 when she decided to return to Mexico. The respondent was conveying her to Mexico when they were apprehended at Laredo, Tex., and the proceeding against him was instituted.
The respondent is charged with being deportable under section 19(b) of the Immigration Act of 1917, as amended June 28, 1940. That section provides, in part, for the deportation of any alien who, within 5 years after entry, "shall have, knowingly and for gain, encouraged * * * any other alien to enter * * * the United States in violation of law." The issue in the respondent's case resolves itself into whether the assistance, which he rendered in effecting the illegal entry of his niece, was "for gain." The facts are readily distinguishable from those present in Matter of R---- D---- A-2786530, 2 IN Dec. 758, which involved a purely commercial transaction. The respondent testified that his sister (the mother of the alien he brought to this country) was a widow and had a large family; that for some time prior to his niece's entry, he had been sending about $60 yearly to his sister; that while his niece worked for him, he did not pay her any wages but purchased her clothes and otherwise supported her; and that during this period he sent her mother $25 to $50 per month. The respondent's niece stated that her mother had requested the respondent to come to Mexico for her so that she could work and help support the other members of her family. The hearing officer, in finding that the respondent brought the alien to the United States for gain, compared the respondent's expenditures on behalf of the alien and her mother with the wages he would allegedly have been required to pay for a domestic servant in Chicago. We believe this comparison affords no criterion in determining whether the respondent brought the alien to the United States for gain. The respondent indicated that he would not have hired a domestic employee if his niece had not come to the United States. The only actual advantage which appears to have accrued to the respondent was that his wife was able to work 8 hours per day in private employment compared to 6 hours prior to his niece's arrival. However, even as to that matter, we observe that he stated that his wife's mother had lived at his home during approximately the same period that his niece lived there, and at the time of the hearing he stated that his wife's mother was taking care of his child. After careful consideration of the record, we believe that the matter of bringing the respondent's niece to the United States was actually intended for the benefit of her mother; that it was a family affair without any commercial aspects; that the gain, if any, which accrued to the respondent after his niece's entry was entirely incidental; and that the assistance he rendered at the time of the alien's unlawful entry was not motivated by any expectation of a resulting gain. We conclude, therefore, that the charge stated in the warrant of arrest is not sustained, and the proceedings will be terminated.
Order: It is ordered that the order of deportation be withdrawn and the proceedings terminated.