A-4593207
Decided by Board January 17, 1951
"Entry" into the United States within meaning of Immigration Laws.
An alien, who crossed the border from the United States into Mexico in 1945, procured an immigration visa thereafter under sec. 4 (b) of the Immigration Act of 1924 as "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad", then returned to the United States about 3 or 4 days after his departure from the United States, was held to have effected an "entry" upon his return to the United States in 1945, within the meaning of the immigration laws as a matter of law, even if full credence were given to the respondent's claim that he did not knowingly depart from the United States because of his (voluntary) drunken condition, (the evidence of record not found supporting such claim). (See 4, I N. Dec. 126.)
CHARGE:
Warrant: Act of 1917 — Crime within 5 years — Assault with intent to commit murder and robbery first degree.
BEFORE THE BOARD
Discussion: The respondent appeals to us from an order of deportation entered by the Assistant Commissioner on October 25, 1950. The case concerns a native and citizen of the Philippine Islands, male, 40 years of age. On April 18, 1949, he was convicted by the Superior Court of Alameda County, Calif., of the crimes of assault with intent to commit murder and robbery first degree. He was sentenced to serve 14 years for the one offense, and 5 years to life for the other. Both offenses were committed on March 10, 1949.
The proceeding is based on the premise that the respondent has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude "committed within 5 years after the entry of the alien * * *" (8 U.S.C. 155). It is clear that he has been sentenced for such a term and that the offenses involved the element of moral turpitude, but he raises the issue of whether there has been an "entry" within 5 years of the commission of the offenses of which he has been convicted.
The record establishes that he arrived in the United States in 1928 and resided here until 1945 when he crossed the border into Mexico. In order to return he obtained an immigration visa, which was issued to him by the American consul at Tijuana, Mexico, on December 7, 1945, under section 4 (b) as "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad." He returned on the day the visa was issued, being but 3 or 4 days after his departure from the United States. Zurbrick v. Woodhead, 90 F. (2d) 991 (C.C.A. 6, 1937).
The respondent's contention, however, is that his presence in Mexico was involuntary and hence his return to the United States was not an "entry" within the contemplation of the immigration law. He testified that he had been drinking and had no knowledge of how he came to be in Mexico. His testimony is as follows:
* * * that is was through ignorance that I crossed the border, because I was driving around southern California and I did not know where the border was.
* * * * * * *
Q. Do I understand then that you mean to say that you did not know you were entering Mexico when you crossed the line?
A. No.
* * * * * * *
Q. At the time you crossed the line did you notice that you went through a large gate with a number of officials on duty?
A. I was leaning against the side of the car when the guy drove in. I had a little bit to drink at that time and I was not driving and I did not even know I went to Mexico until the next day when I tried to come back and they would not let me come back, so I had to see the American consul.
Q. When did you first know you were in Mexico?
A. The next day when I tried to come back to the States. The hotel where I stayed had a lot of Chinese and I did not know it was in Mexico but when I went to the immigration station the next day I found out I was in Mexico.
In his appeal to us the respondent states:
This entry was not through my own volition or intent of mind to go or live in Mexico. I had no concept as to where I was or how I had arrived in Mexico at that time. When I awoke the next morning I was positive that I was still in California, and I never for a moment the slightest doubt otherwise.
Any "entry" into the United States within the contemplation of the immigration law includes, with limitations as stated below, any coming of an alien from foreign country into the United States, whether it be a first or subsequent coming. U.S. ex rel. Volpe v. Smith, 289 U.S. 422, 1933. The fact that the absence was of short duration is of no moment, Schoeps v. Carmichael, 177 F. (2d) 391 (C.A. 9, 1949); Zurbrick v. Woodhead, 90 F. (2d) 991 (C.C.A. 6, 1937). Courts, however, have determined that there is no such "entry" when it results from the exigencies of war, or by travel on a common carrier between points within the United States without knowledge that the route of such travel involved a temporary crossing of the international land border, or where freedom of action was wanting.
It has been determined that return to the United States under the circumstances stated below did not involve an "entry" within the contemplation of the Immigration law:
An alien was rescued from the ocean, after his vessel which was engaged in coastwise travel, was torpedoed and he was taken to Cuba, from whence he returned to the United States. The exigencies of war, and not his voluntary act, put him on foreign soil. Delgadillo v. Carmichael, 332 U.S. 388, 1947.
Travel by train from and to points within the United States, without knowledge that the train crossed the International border. The intent of a carrier, unknown to the alien, to carry him across the border and back again should not be imputed to the alien. DiPasquale v. Karnuth, 158 F. (2d) 878 (C.C.A. 2, 1947); Matter of R---- R----, A-3153429, B.I.A., January 6, 1949.
Inadvertent boarding of the wrong bus in Detroit, resulting in travel to Windsor, Canada, from which there was an immediate return. There was no purpose or intent to depart from the United States. Matter of P----, B.I.A., file A-2402141, June 7, 1949.
Return from foreign service in the United States Maratime Service during the war. The exigencies of war, and not the alien's voluntary act, took him to foreign ports. Carmichael v. Delaney, 170 F. (2d) 239 (C.C.A. 9, 1948); Matter of D----, A-5869934, B.I.A., March 7, 1950.
Return to the United States from private employment in Alaska, pursuant to travel arrangements made by the employer at a time when war conditions necessitated that such travel be through Canada. Matter of P----, A-5438591, B.I.A., August 9, 1949.
Attendance by a school boy at a school picnic on a Canadian beach, under the supervision of the teacher. Compulsion and lack of freedom of action were the controlling factors. U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370, 1932.
The alien seeks to invoke an exception to the rule that return from a foreign place involves an "entry." Exceptions are narrowly and strictly applied. The record shows that the situation presented here was in no wise comparable to the precedent cases establishing the exception. The alien represents that he was drunk and was unaware he was departing from the United States. Voluntary drunkenness is no defense to crime (save as to degree where premeditation or malice is involved); in torts it is not regarded as even a mitigating circumstance; nor does it void a contract, although it may render it voidable, not so much because of the drunkenness of the one party as the fraud and imposition of the other. Hence the alien must be held to the same degree of responsibility as if he were sober when he departed from the United States. We note from the record that the International border is conspicuously marked on the highways thus charging any one who passes with knowledge that he is departing from the one country and entering the other. Furthermore, we take judicial note that principal points of ingress and egress on the border are attended by immigration officers, and the gates are closed during hours that officers are not in attendance.
The foregoing is based upon full credence being given the respondent's claim that he did not knowingly depart from the United States. Additionally we note that two hearings have been held in this proceeding, the first on August 10, 1949, before a presiding inspector under the practice which then prevailed, and the second on August 15, 1950, before a hearing examiner in conformity with the Administrative Procedure Act. The testimony in the earlier hearing was introduced as an exhibit in the later hearing pursuant to a stipulation signed by the respondent. During the earlier hearing the respondent testified as follows:
I first came to the United States at Seattle, Wash., on September 14, 1928, and I was admitted for permanent residence. I resided in the United States continuously from 1928 until 1945, when I went to Mexico and I was in Mexico for 3 or 4 days only, while I was waiting for my visa.
It was in the second hearing that the claim was first advanced that it was through ignorance he had crossed the border. Respecting such claim the hearing examiner made the following comment in his summary:
* * * it is noted that this statement that he did not know that he was departing from the United States arises for the first time during the present proceedings and that the respondent made no mention of it at the original hearing on August 10, 1949. The hearing examiner is not impressed by the statement of the respondent and doubts his sincerity.
We think that such impression has much support. However, on both the law and the evidence we are led to conclude that the appeal should be dismissed.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner be dismissed.