A-5524011.
Decided by Board December 20, 1955.
Recommendation against deportation — Limitation as to charges under section 241 (a) (4), Immigration and Nationality Act.
A judicial recommendation against deportation entered in 1954 does not vitiate a charge under section 241 (a) (13) of the Immigration and Nationality Act, nondeportable status created by such recommendation being limited to charges brought under section 241 (a) (4) of the act.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (13) — Knowingly and for gain aided aliens to enter the United States in violation of law.
BEFORE THE BOARD
Discussion: The respondent, a native and citizen of China, male, married, 46 years of age, appeals from an order entered by the special inquiry officer, July 18, 1955, directing his deportation on the charge stated in the warrant of arrest. Counsel in his exceptions to the order urges errors in the conduct of the proceedings in that "the findings and conclusion of law of the special inquiry officer resulted from the arbitrary abuse of discretion in the admission of a voluminous record of evidence, both oral and documentary, which was clearly hearsay and of such character as to completely deny the alien the privilege of cross-examination and a fair hearing."
The facts of the case have been fully set forth in the opinion of the special inquiry officer and need not be reiterated in their entirety. They establish that respondent originally entered the United States at the port of San Francisco, California, on July 3, 1919, and was admitted as the son of a domiciled merchant. Subsequent to his original entry respondent made numerous trips to China between 1925 and 1950. He also departed on several short trips to Mexico during World War II. Respondent last entered at the port of Honolulu, T.H., on August 10, 1950, and was admitted as a lawful returning resident alien in possession of a valid reentry permit.
The deportation of the respondent is sought under section 241 (a) (13) of the Immigration and Nationality Act of 1952 in that prior to or at the time of any entry, he knowingly and for gain encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law. The record shows that respondent was convicted February 15, 1954, in the District Court of the United States for the Northern District of California, S.D., on an indictment charging in a single count that he violated Title 18, U.S.C., (Rev.) section 371, in that he did, inter alia, knowingly conspire with divers other persons "to defraud the United States (a) of and concerning its governmental function and right of administering the immigration laws of the United States and regulations promulgated pursuant thereto, particularly those laws and regulations governing the admission, exclusion, and registration of aliens, and their stay in the United States * * *." He was sentenced to imprisonment for a period of one year and one day with a recommendation to the Attorney General that "the defendant be not deported." Under the provisions of section 241 (b) (2) of the Immigration and Nationality Act of 1952 a nondeportable status created by judicial recommendation is limited to deportation charges brought under section 241 (a) (4) of the same act unless said recommendation is preserved by section 405 (a), the savings clause of the 1952 act ( Matter of W---- M----, A-4988228, Int. Dec. No. 694, B.I.A., May 5, 1955). Since section 405 (a) ( supra) is not applicable to the instant proceeding, the judicial recommendation does not vitiate a charge laid under section 241 (a) (13) of the 1952 act.
The substance of the case against respondent concerns his activities during May, June, July and the early part of August 1950 in connection with the operation of the China National Travel Agency of San Francisco, California, with a branch office at Hong Kong, British Crown Colony. During this period the Government contends that respondent did obtain considerable monetary or other consideration in return for encouraging, inducing, assisting, abetting, or aiding other aliens to unlawfully enter the United States. As proof of the alleged unlawful acts the Government relies on a transcript developed during respondent's trial on the indictment referred to above, the testimony of several Chinese aliens and some 182 exhibits consisting of visa files, affidavits and other evidentiary material.
The extent of proof required to support the charge laid under section 241 (a) (13) is materially lessened by reason of respondent's conviction in the United States District Court for the Northern District of California, for violation of Title 18, U.S.C., (Rev.) section 371. As a part of the conspiracy set forth in the indictment, specification No. 12 charges that certain named co-conspirators and other aliens whose names are to the grand jurors unknown "aided, abetted and assisted by defendant (respondent herein), would when applying for admission to the United States evade and attempt to evade the immigration laws of the United States by appearing in Hong Kong before said Foreign Service, and in the United States before said Immigration and Naturalization Service under assumed and fictitious names, and by personating the identity of individuals other than said co-conspirators and aliens aforesaid." Specifications 13 through 17 are of the same tenor. Under the circumstances, the additional proof required to sustain the charge laid under section 241 (a) (13) ( supra) is an affirmative showing that the unlawful activity on the part of respondent as recited in the indictment was entered into "knowingly and for gain."
Respondent operated a travel agency at San Francisco, California, beginning March 1948 to at least early in 1951. The record affirmatively establishes that during this period respondent had agreements with certain airlines for the sale of international and domestic transportation. The record shows that tickets purchased for aliens in Hong Kong through the China National Travel Agency via the Philippine Air Lines were issued pursuant to orders signed by the respondent. The evidence clearly establishes that these were transactions handled individually by respondent and is proven by the record of his transactions with the Philippine Air Lines. The evidence in our judgment establishes without doubt that during the period May to the early part of August 1950 the respondent knew that the activities in which he was engaged in connection with certain aliens desiring to come to the United States were in violation of the laws of the United States concerning the proper governmental function and administration of the United States Department of State and the Immigration and Naturalization Service.
The remaining question to be determined is whether a preponderance of the evidence establishes that respondent did obtain a monetary or other valuable consideration in return for knowingly encouraging, inducing, assisting, abetting or aiding other aliens to unlawfully enter the United States. The testimony of the aliens referred to in the stipulation entered as exhibit 3, the testimony of the representative of the Philippine Air Lines, the testimony of the several Chinese witnesses and affidavits of record establish to our satisfaction that respondent during the period here under consideration did receive remuneration for his unlawful activities by way of direct payments for obtaining passports and other documentation. He also realized a financial gain by way of commission on transportation sold to the aliens involved in effecting their travel to the United States. The charge stated in the warrant of arrest is sustained by the evidence of record.
Counsel urges that the hearing accorded respondent was unfair because hearsay evidence was admitted which was of such a character that respondent was completely denied the privilege of cross-examination. This same issue arose recently in the case of United States ex rel. Impastato v. O'Rourke, 211 F. (2d) 609 (C.C.A. 8, 1954), cert. den. October 14, 1954. The court at page 611 said, "In deportation hearings rules of evidence applicable in courts of law need not be followed. The admission of evidence which a court would regard as legally insufficient does not vitiate deportation proceedings." We find that the hearing accorded respondent meets the requirements set forth in section 242 (b) of the Immigration and Nationality Act of 1952. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.