A-3063410
Decided by the Board May 8, 1953
Entry — By false and misleading statements, thereby without inspection — What constitutes an "entry" — Suspension of deportation, section 244 (a) of the Immigration and Nationality Act of 1952 — Residence requirements.
(1) An alien who gains admission to the United States by falsely representing himself as a citizen of this country while in a drunken condition has entered without inspection since he is, nevertheless, accountable for his statements ( Matter of P., January 17, 1951, 4 IN Dec. 235.)
(2) Manifest notations by ship's agent that alien was "American born" and by the immigrant inspector that the alien was born in Austria and naturalized in New York in 1910 held sufficient to establish that alien made false and misleading statements, thereby entering without inspection.
(3) An alien who is not concerned with the destination of the ship on which he makes a fishing trip voluntarily accepts the ship's destination and voluntarily leaves the United States, though claiming actual ignorance of the destination. Therefore, his return to the United States after the fishing boat has touched at a foreign port is an "entry" within the meaning of the immigration law.
(4) The term "physically present in the United States for a continuous period" as used in section 244 (a) of the Immigration and Nationality Act of 1952 means that an alien must have been physically present in the United States without any absence, no matter how brief, for the continuous period specified in the statute in order to qualify for suspension of deportation.
CHARGES:
Warrant: Act of 1917 — Entered without inspection (false and misleading statements).
Act of 1940 — No immigration visa, reentry permit or border crossing card.
BEFORE THE BOARD
Discussion: This is an appeal from a decision of the special inquiry officer dated March 20, 1953, directing the deportation of the respondent on the charges stated above.
The case is concerned with a 58-year-old divorced male, born in Galicia, then a part of Austria Hungary, now Poland, who was admitted to the United States on January 7, 1900, for permanent residence. He was then 6 years old, and travelled with his mother, sister, and brothers. He has maintained a residence in the United States since that time.
This proceeding is based on the alleged illegality of the respondent's admission at Miami, Fla., on October 7, 1950, when a guest aboard the Verjo III, when that boat was returning from Bimini, Bahamas. P---- was then admitted as a United States citizen. He admits that he is not now and never was a citizen of this country.
P---- has associated with former boyhood companions with whom he grew up in Harlem and who are characterized as gangsters, gamblers, or racketeers. He however, has no record for conviction for serious crimes. In 1908, when about 14 years old, he was convicted for petty larceny (package theft). In 1911 he was sentenced to 6 months in the workhouse for disorderly conduct. In 1921 he was arrested on a homicide charge but was discharged. In 1931 he was arrested for vagrancy and in 1948 for loitering in a gambling house, which charge was dismissed. Concerning his own arrest record, P---- says "I have been arrested so many times when I was a young boy I cannot recall. For the last 40 years I have been involved in different things. Recently, I was never arrested. I was held as a witness."
For at least the past 10 years P---- has had no regular employment. He makes a fourth at bridge (monetary compensation if a winner apparently being the inducement); and hangs around racetracks. He says he earns his living "around the racetracks touting people, getting bets down." Touting, according to P----, is suggesting bets on certain horses for which he receives a gratuity from the bettor. He also does odd jobs for his friends. According to respondent's attorney, when in New York, P---- baby sits for his daughter who is divorced and has small children. While in Miami, he does odd repair jobs for his brother, a property owner there. In addition to these activities P---- likes to fish. The present deportation proceeding results from a fishing trip.
According to P----'s testimony, on October 2, 1950, he accepted an invitation from his friend J.M.---- to go on a fishing trip on M----'s boat, the Verjo III. The Verjo III is a motorboat, about 36 feet long, used primarily for fishing parties, and according to the testimony of J---- E----, captain, the boat is registered as owned by the Miami Provision Co. The crew of the boat consisted of E----, the captain, and J---- T---- described as the mate.
P---- admittedly had been drinking rather freely on October 2, 1950. He conditioned his acceptance of the invitation by stipulating that there be bourbon whisky on the boat as other members of the party drank Scotch. A half case of bourbon was put on for his use. The boat proceeded to Bimini, which is about 40 miles from Miami. The only guest besides P---- was one M---- S----. Bad weather was encountered which prevented fishing. M---- S---- flew back to Miami and P---- returned to Miami on October 7, 1950, on the Verjo III. He was manifested as United States citizen and was admitted by the immigrant inspector as such. This is the basis for the charge that P---- entered by false and misleading statements, thereby entering without inspection.
The first contention of counsel is that P---- was so drunk that he cannot be held accountable for representing himself as a United States citizen. We held in the Matter of P----, January 17, 1951, 4 IN Dec. 235, that where an alien was so drunk when he left the United States and entered Mexico that he did not realize what he was doing, he was nevertheless accountable for his actions and must be considered as having entered Mexico voluntarily. Whether drunk or not, P---- is accountable for representations which he made that he was a citizen of this country. P---- says that he usually represented himself as a citizen because ashamed to say he came from Austria. In accordance with his usual procedure it would have been the normal thing for him to tell the immigrant inspector he was a citizen of the United States. One item in the record more important than this is the manifest of the arrival of the Verjo III on October 7, 1950. P---- was shown on the manifest made out by the agent of the Verjo III as "American born." The immigrant inspector who conducted the examination made a notation in column 16 of the manifest to the effect that P---- was born in Austria, "naturalized in New York in 1910." The basis for this notation obviously was information furnished the inspector at the time of examination by P----. We have no doubt that P---- knowingly and falsely represented himself to be a citizen of the United States, upon his arrival at Miami on October 7, 1950, when coming from Bimini, Bahamas. This constitutes an entry without inspection ( U.S. ex rel. Volpe. v. Smith, 289 U.S. 422).
The next contention of counsel is that P---- did not voluntarily leave the United States and hence upon his return he did not "enter" the United States under the immigration laws. The broad rule is that every coming to the United States is an entry. An alien who leaves the United States on a vessel which proceeds to a foreign port and then returns to the United States makes a new entry upon the return, whether or not the alien left the vessel while in the foreign port. ( U.S. ex rel. Stapf v. Corsi, 287 U.S. 128.) To this broad rule an exception has been made where the departure of an alien from the United States could not have been anticipated by him, his return to the United States is not to be construed as an "entry." Thus it was held in Delgadillo v. Carmichael, 332 U.S. 388, that an alien seaman on an American vessel in intercoastal trade which was torpedoed during the last war, causing the alien to be "catapulted into the ocean," and was thereafter rescued and taken to Cuba, from whence he was flown to the United States, did not "enter" the United States under the immigration laws. The court observed that the alien's itinerary was forced upon him by wholly fortuitous circumstances.
In Di Pasquale v. Karnuth, 158 F. (2d) 878, and Yukio Chai v. Bonham, 165 F. (2d) 207, it was held that alien passengers on a common carrier who were unaware that the conveyance would pass through or touch foreign territory did not make an "entry" upon return to the United States. In Valenti v. Karnuth, 1 F. Supp. 370, it was held that a child who was required by law to attend school and who accompanied a school picnic into Canada with his class under the direction of his teacher did not make an "entry" upon his return to the United States at the end of the day. The court found that the same compulsion existed with regard to the picnic as exists in regard to attendance at classes, and therefore the alien had no freedom of action to decide whether or not he would go to the picnic.
We are urged to accept the proposition that, as P---- did not know that the Verjo III was going to Bimini, under the rationale of these decisions he did not "enter" the United States on October 7, 1950, when returning to Miami.
P---- says he did not know that it was planned to go to Bimini when he accepted M----'s invitation. There is a great deal of testimony in the record as to whether P---- was aware of the destination of the Verjo III notwithstanding his denial. For example, the captain of the Verjo III, J---- E----, says he received information at least a day before departure concerning those who would make up the party and from which the manifest was prepared. P----'s name was given him as one who would make the trip. P---- says he was invited to go about an hour before departure. These statements admittedly are not necessarily inconsistent although if both are true the situation was a little bit unusual. There were but five people all told on the Verjo III, a 36-foot motorboat. It would seem rather odd that the destination of the boat was not discussed, and that P---- did not know where the party was going.
We do not, however, base our decision on whether P---- had actual knowledge of the boat's destination. On page 67 of the record the following question and answer by P---- appear:
Q. If he [referring to M----] had had half a case of bourbon put on the boat, and said "we are going to Bimini," would it have made any difference to you?
A. No. If they were going to Europe I would have gone-just to fish and pleasure. I love it, and I do it even now every week.
It is clear from this that P---- was unconcerned with the destination of the Verjo III and would have gone wherever the boat went. He therefore voluntarily accepted the boat's destination and cannot escape responsibility for his action by claiming actual ignorance. The Delgadillo, Di Pasquale, Chai and Valenti decisions are based on the involuntariness of the alien's action in leaving the United States. Here that element is completely lacking. We, therefore, must hold that P---- in fact "entered" the United States at Miami, Fla., on October 7, 1950, on board the Verjo III. Hence he is subject to deportation because he entered the United States by false and misleading statements thereby entering without inspection.
As pointed out by counsel the charge that P---- lacked documents required by the act of June 28, 1940, upon the entry in question is not sustained. Section 175.44 of title 8, C.F.R., exempts certain aliens from the requirement of presenting passports and permits to enter. Among the categories enumerated and applicable to this case is subdivision (f) which reads as follows:
An alien who is a lawful permanent resident of the United States, and who reenters from a journey beginning in a port of the United States in the Western Hemisphere without transshipment from the original vessel to another vessel, such vessel not having proceeded outside of the Western Hemisphere.
P---- declined to apply for voluntary departure but did apply for suspension of deportation. The only provision of law that could possibly be considered as applicable to his case is section 244 (a) (2) of the Immigration and Nationality Act. We feel that this section is not helpful to P----. This paragraph provides for suspension of deportation in regard to aliens who last entered the United States within 2 years prior to the date of the enactment of the act or any time thereafter. In other words, the section applies to aliens who enter the United States on or after June 27, 1950. P---- last entered the United States October 7, 1950. The paragraph, however, requires that the alien must have been "physically present in the United States for a continuous period of not less than 5 years immediately preceding his application under this paragraph * * *."
It is apparent, of course, that P---- has not been in the United States 5 years since the date of his last entry on October 7, 1950. Counsel argues that the continuity of the respondent's 53 years' residence in the United States was not broken by a 3-day fishing trip 40 miles off the coast of Florida. The important fact is that the fishing trip took P---- into a foreign port. We see no escape from construing the language "physically present in the United States" as meaning other than exactly what it says; to wit: that the alien must be physically present in the United States "continuously" for the period specified in the statute. In other words, we feel that the statute makes it clear that to qualify for suspension the alien must have been in the United States without any absence, no matter how brief, for the continuous period specified, in this instance, 5 years. P---- does not meet this requirement and as a matter of law suspension of deportation may not be considered. Even if P---- could meet the minimum statutory requirements for suspension, there would also be involved whether, in view of his mode of living, he would be a worthy subject for suspension of deportation notwithstanding the years he has resided here. Since P---- is not statutorily eligible for consideration for suspension we need not pass judgment on this latter issue.
Our conclusion is, therefore, that P---- is subject to deportation on the ground that he entered the United States by false and misleading statements, thereby entering without inspection, at the time of his arrival at Miami, Fla., on October 7, 1950, on the Verjo III, when he falsely represented himself to be a citizen of the United States, and that he is not eligible for consideration for suspension of deportation.
Order: It is ordered that the appeal be dismissed, but that the order of the special inquiry officer be modified so as to eliminate as a basis for deportation the charge that the alien lacked an immigration visa, reentry permit or border crossing identification card at the time of his entry on October 7, 1950.