56196/392
Decided by Board December 14, 1945.
Excludability — On basis of deportability upon reentry — Narcotic law violation — Act of February 9, 1909, as amended — Act of February 18, 1931, distinguished.
1. The act of February 18, 1931, provides for arrest and deportation of an alien upon conviction of a narcotics violation after the enactment of that act and an alien so convicted is subject to arrest and deportation regardless of whether or not he may have departed from the United States, and reentered at a time subsequent to his conviction; wherefore he would be deemed excludable at time of reentry under the Immigration Act of 1917 though such act does not specifically provide for such a ground of exclusion. (See vol. 1 IN Dec. 293.)
2. The act of February 9, 1909 as amended by the act of May 26, 1922 provides for arrest and deportation upon conviction and sentence of a narcotics violation after entry and an alien so convicted and sentenced is not subject to arrest and deportation upon reentry subsequent to such conviction and sentence; wherefore he would not be deemed excludable at the time of such reentry because of such conviction and sentence.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Act of February 9, 1909, as amended — Convicted and sentenced to 1 year or more for violation of a law relating to traffic in narcotics, to wit: The Narcotic Drugs Import and Export Act, approved May 26, 1922.
Act of 1917 — Convicted of crime-rape.
Act of 1929, as amended-arrested and deported, no permission to reapply.
BEFORE THE BOARD
The appellant, a native and citizen of Mexico, 47 years of age, applied on May 28, 1945, for admission to the United States for permanent residence, or, in the alternative, for the border-crossing privilege as a temporary visitor. He was found inadmissible on the above-stated grounds by a Board of Special Inquiry, and appealed from that decision.
The appellant has been arrested and deported from this country on three occasions: On June 9, 1929, on the grounds he was in the United States in violation of the act of 1909, as amended by the act of 1922, in that he had been convicted of a violation of the narcotics laws, and the act of 1917 in that he was a person likely to become a public charge; on February 20, 1930, on the grounds he was not in possession of a valid immigration visa, that he was a person likely to become a public charge, that he had been sentenced to imprisonment for a term of 1 or more years because of conviction of a crime involving moral turpitude (rape), and that he had been previously deported; and, again on March 4, 1940, on the grounds he entered at other than a designated port, that he had been convicted of a crime prior to entry (rape), that he was not in possession of an immigration visa, and that he had been previously arrested and deported.
On April 20, 1945, this Board authorized the alien's admission as a temporary visitor for a period of 6 months for visits not to exceed 3 days under the ninth proviso to section 3 of the act of 1917 notwithstanding his inadmissibility as one who has been previously arrested and deported and as one who has been convicted of a crime involving moral turpitude, to wit: Rape. In the present proceeding, the Board of Special Inquiry did not exclude the appellant from permanent residence on the two foregoing grounds. The Commissioner of Immigration and Naturalization on September 10, 1945, affirmed the excluding decision of the Board of Special Inquiry only on the ground that the alien was an immigrant not in possession of an immigration visa; and, in addition, found the alien inadmissible on the grounds that he has been convicted of a crime involving moral turpitude (rape), and that he is one who has been previously deported and to whom the proper authority has not granted permission to reapply for admission to the United States. The record contains evidence of these grounds of exclusion. Under U.S. ex rel. Jelic v. District Director of Immigration and Naturalization ( 106 F. 2d 14, (C.C.A. 2d, 1939)), wherein it was held that the Board of Review was not limited to the grounds of exclusion found by a Board of Special Inquiry, the action of the Commissioner in excluding the alien on the additional grounds was proper.
The Commissioner has not found the alien inadmissible under the act of 1909, as amended by the act of 1922, in that he has been convicted of and sentenced for violation of the Narcotics Drugs Import and Export Act.
The question of inadmissibility of an alien for violation of the Narcotics Laws was previously considered by this Board in the Matter of V----, 56096/451 (July 21, 1942). That case involved an alien who on November 14, 1940, was convicted and sentenced for a violation of the Narcotic Drugs Import and Export Act of 1909, as amended (title 21, U.S.C. sec. 174). The alien thereafter departed to Mexico; and, upon application for readmission to this country was excluded as one who admits the commission of and who has been convicted of an offense involving moral turpitude, to wit: Importing opium into the United States from a foreign country. This Board held that an alien convicted of a violation of the Narcotic Drugs Import and Export Act has not been convicted of a crime involving moral turpitude; but that upon entry to this country such alien would be subject to arrest and deportation, for violation of the narcotics laws and is excludable under section 3 of the Immigration Act of 1917, although section 3 of that act does not specifically provide for a ground of exclusion.
In the V---- case, the alien was convicted and sentenced after February 18, 1931, for a crime committed before June 28, 1940, and was, therefore, subject to the act of February 18, 1931, which provides:
That any alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this act) who, after the enactment of this act, shall be convicted, for violation of or conspiracy to violate any statute of the United States or any State, Territory, possession, or of the District of Columbia, taxing prohibiting or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, * * * shall be taken into custody and deported in manner provided in Sections 19 and 20 of the Act of February 5, 1917. [Italics supplied.]
It should be here noted that the act of February 18, 1931, provides for arrest and deportation of an alien who, after the enactment of that act shall be convicted of a narcotics violation. An alien so convicted after the enactment of the act of 1931 is thereby subject to arrest and deportation regardless of whether or not he may have departed from the United States, and reentered at a time subsequent to his conviction.
In the present case, the alien was convicted and sentenced on May 30, 1928, for a violation of the Narcotic Drugs Import and Export Act approved February 9, 1909, as amended May 26, 1922, and was sentenced to pay a fine of $5 and be imprisoned for 15 months. Accordingly, he was subject to arrest and deportation under the act of February 9, 1909, as amended by the act of 1922. Section 2 of this act provides in part as follows:
(c) That if a person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in * * * such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than 10 years.
(e) Any alien who at any time after his entry is convicted under subdivision (c) shall, upon the termination of imprisonment imposed by the court upon such conviction and upon warrant issued by the Attorney General, be taken into custody and deported in accordance with the provisions of sections 19 and 20 of the act of February 5, 1917 * * *. [Italics supplied.]
The act of 1909 as amended, provides only for the arrest and deportation of an alien who, after entry, has been convicted and sentenced for a violation of the narcotics laws, rather than after enactment as in the act of 1931. In the event such alien, after deportation reenters the United States, he would not be subject to deportation as one who after such entry had been convicted and sentenced for violation of the narcotics laws. Since he would not then be subject to arrest and deportation, he likewise would not be inadmissible to this country.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant seeks admission to the United States for permanent residence;
(3) That the appellant is not in possession of an unexpired immigration visa;
(4) That on May 30, 1928, the appellant was convicted of a violation of the Narcotic Drugs Import and Export Act approved May 26, 1922, and was sentenced to pay a fine of $5 and be imprisoned for 15 months;
(5) That, on May 10, 1932, the appellant was convicted in Ector County, Tex., of rape;
(6) That on March 4, 1940, the appellant was arrested and deported;
(7) That, subsequent to his deportation on March 4, 1940, the appellant has not been granted permission to reapply for admission to the United States for permanent residence.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 of the Immigration Act of May 26, 1924, the appellant is inadmissible to the United States in that he is 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 the act of February 9, 1909, as amended by the act of May 26, 1922, the appellant is not inadmissible to the United States in that he has been convicted of and sentenced to imprisonment for a term of one year or more for violation of a law relating to traffic in narcotics, to wit: The Narcotic Drugs Import and Export Act, approved May 26, 1922;
(3) That under section 3 of the act of February 5, 1917, the appellant is inadmissible to the United States in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Rape;
(4) That under the act approved March 4, 1929, as amended, the appellant is inadmissible to the United States in that he is seeking admission in violation of section 1 (a) of said act of March 4, 1929, being an alien who has been arrested and deported in pursuance of law and to whom the proper authority has not granted permission to reapply for admission for permanent residence.Other Factors: This alien's wife and five children, four of whom are citizens, reside in the United States. His Mexican-born son is serving with the United States armed forces. He wishes to visit the family from time to time. We have previously seen fit to grant him temporary admission for this purpose, as is indicated by our order of April 20, 1945. We believe that he may now be admitted as a temporary visitor under the ninth proviso to section 3 of the act of 1917.
Order: It is ordered that the excluding decisions of the Board of Special Inquiry be affirmed on the ground that the alien is inadmissible to the United States under section 13 of the Immigration Act of May 26, 1924, in that he is 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.
It is further ordered that the alien be excluded on the additional grounds:
The act of 1917, in that, he is inadmissible to the United States in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Rape;
The act approved March 4, 1929, as amended, in that he is inadmissible as one seeking admission in violation of section 1 (a) of the said act of March 4, 1929, being an alien who has been arrested and deported in pursuance of law and to whom the proper authority has not granted permission to reapply for permanent residence.It is further ordered, That if the alien applies for admission and is found otherwise admissible than as one who has been convicted of a crime involving moral turpitude, to wit: Rape, and, as one who has been previously deported and has not received permission from the proper authority to reapply for admission, he be admitted under the ninth proviso to section 3 of the act of 1917, for a period of 6 months, no one visit to exceed 3 days, under such conditions as the port deems appropriate.