A-6972834
Decided by Central Office March 18, 1949
"Entry" into the United States within meaning of immigration laws — Alien returned to this country as a military prisoner.
1. The adjudicated cases have established the principle that no "entry" is made within the contemplation of the immigration laws by a return to the United States as soon as practicable following a departure which was unwitting ( U.S. ex rel. Di Pasquale v. Karnuth, 158 F. (2d) 878 (C.C.A. 2, 1947)), wholly involuntary ( Delgadillo v. Carmichael, 332 U.S. 388 (1947)), or enforced ( U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370 (1932)), in the absence of conduct constituting acquiescence in and acceptance of such departure.
2. Where an alien entered the United States for permanent residence on May 21, 1929, was inducted into the United States Army in 1942, was ordered overseas in 1944, was dishonorably discharged in Germany in 1945, but kept in custody of Army authorities as a prisoner sentenced to imprisonment, returned to the United States as a military prisoner in 1946 and was immediately taken to a Federal penitentiary to serve the sentence previously imposed, it must be held that he was not free to choose where he wished to go or to remain since 1942, that his departure in 1944 was wholly involuntary and was enforced, that his return waited upon the direction of the military authorities, and consequently, his return to the United States on January 30, 1946, does not constitute an "entry" within the meaning of the immigration laws.
CHARGES:
Warrant: Act of 1917 — Sentenced more than once after entry for crimes — larceny and violation of 92d Article of War.
Lodged: Act of 1924 — No immigration visa.
Act of 1918 — No passport.
Act of 1917 — Admits crime prior to entry — larceny.
Act of 1917 — Convicted of crime prior to entry — larceny, larceny of bicycle, and violation of 92d Article of War.
BEFORE THE CENTRAL OFFICE
Discussion: The subject of this record, a 33-year-old male, native of Newfoundland and citizen of Canada was lawfully admitted to the United States for permanent residence at the port of Boston, Mass on May 21, 1929. He continued to reside in the United States until March 1944 when, as a member of the Armed Forces of the United States he was ordered overseas. While serving in the Army of the United States overseas, the respondent was convicted by a general court martial as a result of which he was dishonorably discharged from the Army of the United States in Germany on December 28, 1945, and returned to the United States as a military prisoner aboard the United States Army Transport John S. Pillsbury, arriving at the port of New York on January 30, 1946, and immediately taken to a Federal penitentiary.
The respondent was convicted on October 5, 1938, upon his plea of guilty of the crime of larceny in the District Court of Central Berkshire, Pittsfield, Mass. and sentenced to imprisonment for a term of 1 year. This offense was committed on October 1, 1938. The respondent identified this record of conviction as relating to him.
The respondent was convicted on July 2, 1940, of the offense of larceny in the District Court of Central Berkshire, Pittsfield, Mass. and sentenced to imprisonment for a term of 2 months. This offense was committed July 1, 1940. The respondent identified this record of conviction as relating to him.
The respondent was convicted by a general court martial on April 25, 1945, on two charges, to wit: Violation of the 92d Article of War and violation of the 93d Article of War. The specification for the first charge was that he
* * * did, at Kottenfurst, Germany, on or about 19 March 1945, forcibly and feloniously, against her will have carnal knowledge of----.
and the specification for the second charge was that he
* * * did * * * at or near Kottenfurst, Germany, on or about 19 March 1945, unlawfully enter the dwelling of B---- B---- with intent to commit a criminal offense, to wit: Larceny, therein.
The respondent was found guilty of these specifications and charges and sentenced to be shot to death with musketry on April 25, 1945. The sentence was subsequently reduced to dishonorable discharge and life imprisonment. The portion of the sentence relating to dishonorable discharge was carried into execution in Germany on Dec. 28, 1945.
The charge of deportability set forth in the warrant of arrest is based upon section 19 (a) of the Immigration Act of February 5, 1917, which provides, insofar as is here applicable, for deportation at any time after entry, of
any alien * * * who is hereafter sentenced more than once to such a term of imprisonment (1 year or more) because of conviction in this country of any crime involving moral turpitude, committed at any time after entry * * *.
The crimes supporting the charge contained in the warrant of arrest are the larceny of which the alien was convicted on October 5, 1938, and the violation of the 92d Article of War of which the alien was convicted on April 25, 1945. The entry referred to in the warrant of arrest was the respondent's entry for permanent residence on May 21, 1929. To support the charge set forth in the warrant or arrest it is necessary to establish, as required by section 19 (a) of the Immigration Act of 1917, that the respondent was convicted in this country as a result of which he was sentenced more than once to imprisonment for a term of 1 year or more. Since the respondent was convicted and sentenced in Germany for the violation of the 92d Article of War, the requirement of the statute has not been met and this charge cannot, therefore, be sustained.
The lodged charges can be sustained only if it can be determined that the respondent made an "entry" into the United States within the meaning of the immigration laws when he returned to this country on January 30, 1946, as a military prisoner in the custody of the Army. As previously noted, the alien's departure from the United States in March 1944 was in pursuance of orders of the Army in which he was then serving.
Had the subject alien not been discharged in Germany but had been returned to the United States while still a member of the Armed Forces of this country his return on January 30, 1946, would not have been an "entry" within the meaning of the immigration laws ( Matter of W----, A-7755700 (C.O., Oct. 13, 1947)). The question to be determined, therefore, is whether the fact that his discharge from the Army of the United States did occur prior to his return to this country serve to make such a return an "entry" which would support the charges lodged during the course of the hearing.
The adjudicated cases have established the principle that no entry is made within the contemplation of immigration law by a return to the United States as soon as practicable following a departure which was unwitting ( U.S. ex rel. Di Pasquale v. Karnuth, 158 F. 2d 878 (C.C.A. 2, 1947)), wholly involuntary ( Delgadillo v. Carmichael, 332 U.S. 388, 1947)), or enforced ( U.S. ex rel. Valenti v. Karnuth, 1 Fed. Supp. 370 (1932)), in the absence of conduct constituting acquiescence in and acceptance of such departure. What will constitute a return as soon as practicable will depend on all of the facts and circumstances of each case and will have a direct relationship to the termination of those factors which made the departure unwitting, involuntary or enforced. When the facts of the instant matter are considered in the light of the principle enunciated, it is apparent that the subject's return to the United States on January 30, 1946, does not constitute an "entry" within the meaning of the Immigration laws.
The respondent was a member of the Army of the United States from the date of his induction on November 20, 1942, until his discharge on December 28, 1945. Contemporaneously with such discharge he remained in the custody of Army authorities as a prisoner sentenced to imprisonment. He was returned to the United States by the United States Army as a military prisoner and immediately upon arrival was taken to a Federal penitentiary to serve the sentence previously imposed upon him. Thus, from November 20, 1942, until the present time the subject alien had no freedom to choose where he wished to go or where he wished to remain. The continuous control and custody over the alien made his return to the United States impossible prior to such time as his return was directed by proper authority. There was no conduct on the part of the respondent which constituted an acquiescence in or an acceptance of his departure from the United States made pursuant to orders of his superior officers. The factors which made such departure an involuntary one continue up to the present day and there was no interval of time when such factors were removed.
In this connection it is appropriate to differentiate the instant case from Matter of O---- O----, A-6921614, (C.O., Oct. 21, 1948). In that case the alien terminated his services in the Armed Forces of the United States while abroad at his own request and thereafter engaged in civilian employment abroad. Following the termination of his employment he sought to reenter the United States, having been returned by the Army of the United States aboard the United States Army Transport General Harry Taylor in accordance with the terms of his employment. Not being in possession of documents required by immigration law, he was properly excluded from the United States. While that alien's departure from this country as a member of the Armed Forces pursuant to orders of superior officers was an involuntary one as is the case of the subject alien, the subsequent election to be discharged from the Armed Forces abroad, his discharge in accordance with such request, and his employment abroad constituted acquiescence in and acceptance of such involuntary departure as to require him upon his return to the United States to comply with all of the immigration laws applicable to returning residents. It is likewise deemed appropriate to distinguish the instant case from Matter of S---- N----, A-6860795 (C.O., June 14, 1948) by pointing out that in the S---- N---- case there was no departure from the United States involved. The decision that in the instant case the respondent made no entry into the United States finds support in Matter of D----, A-5954543 (B.I.A., May 15, 1947) in which case the alien's departure from the United States was an enforced one as a Federal prisoner brought to the mainland to serve his sentence of imprisonment.
On the basis of the authority cited herein, it is concluded that the subject alien did not make an "entry" into the United States within the meaning of the immigration laws when he was returned to this country as a prisoner in the custody of the Army on January 30, 1946. Accordingly, the charges lodged during the course of the hearing cannot be sustained. Recommendation: It is recommended that the warrant of arrest be canceled and the proceedings terminated.
So ordered.