A-7271865.
Decided by Board June 23, 1955.
Entry into United States — Section 101 (a) (13) of Immigration and Nationality Act — Return of alien to United States after denial of entry at foreign ports.
Where a resident alien departed from the United States to visit a foreign country but was not permitted to leave the vessel at any foreign port at which the vessel touched, his return to the United States does not constitute an entry within the meaning of section 101 (a) (13) of the Immigration and Nationality Act.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (4) — Afflicted with mental defect.
BEFORE THE BOARD
Discussion: The case comes forward on appeal by the District Director, New York District, from the order of the special inquiry officer entered May 20, 1955, terminating the proceedings on the ground that the applicant is not in the process of entering the United States and the Service has no jurisdiction in exclusion proceedings. The district director urges that the applicant is seeking to effect an entry into the United States and in view of a certification by the United States Public Health Service as a mental defective, he should be found inadmissible under section 212 (a) (4) of the Immigration and Nationality Act.
The record relates to a native and last a citizen of Yugoslavia, 47 years old, single, male, who was lawfully admitted for permanent residence at the port of New York on August 30, 1949, under the Displaced Persons Act of June 25, 1948, in possession of an immigration visa issued to him under section 6 (b) of that act. Subsequently he made two departures from here returning each time in possession of a reentry permit.
On March 6, 1955, the applicant again departed for Europe in possession of a reentry permit issued him on February 3, 1955, and an affidavit in lieu of passport. He testified that while examining his reentry permit and travel document on deck of the ship the wind tore the documents from his hands and they disappeared into the sea. He stated that upon arrival at the port of Hamburg, Germany, he was not permitted to leave the vessel by German authorities since he was not in possession of documents. He testified that he was not permitted to leave the vessel at any other foreign ports at which the ship touched and was detained on board the vessel. Upon arrival at the port of New York on March 29, 1955, the applicant was transferred to the United States Marine Hospital at Stapleton, Staten Island, New York, for examination and on May 6, 1955, a Class A medical certificate signed by two United States Public Health Service physicians was issued finding the applicant afflicted with a mental defect, schizophrenia. In order to sustain a finding of inadmissibility based upon the certification, it must first be found that the applicant's arrival at the port of New York on March 29, 1955, under the circumstances in the case constitutes an entry.
Section 101 (a) (13) of the Immigration and Nationality Act defines an "entry" as any coming of an alien into the United States, from a foreign port or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purpose of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary. This exception is made not applicable to persons whose departure from the United States is occasioned by deportation proceedings, extradition or other legal process.
Prior to the passage of the Immigration and Nationality Act the term "entry" into the United States was not precisely defined. However, the judicial construction of the term "entry" as used in the immigration laws generally held that the term "entry" included any coming of an alien from a foreign country to the United States whether such coming was the first or a subsequent one. The legislative history of the term "entry" discloses the recognition and acceptance of court decisions that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States or did not leave the country voluntarily.
United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933).
Senate Report No. 1137 to accompany S. 2550 (82d Cong., 2d sess.) p. 4. "More recently, the courts have departed from the rigidity of that rule [ Volpe v. Smith] and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States ( Di Pasquale v. Karnuth, 158 F. (2d) 878 (C.C.A. 2, 1947), or did not leave the country voluntarily ( Delgadillo v. Carmichael, 332 U.S. 388 (1947)). The bill defines the term `entry' as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary."
Under the prior immigration law it was held in the case of an alien who was ordered excluded and held at Ellis Island and thereafter paroled, that the alien was stopped at the boundary line and when paroled, was still at the boundary line and gained no foothold and had never entered the United States. In support of the administrative view that an entry had not been made under prior law when an alien had returned to the United States after having been denied entry into a foreign country to which he intended to proceed, although physically in such foreign country, reliance was had upon the case of Kaplan v. Tod, 267 U.S. 228, to cover the converse situation, the Board stating: "By analogy one who, departing from the United States, seeks admission to another country but is denied the right of entry, should be considered as not having entered that country even if physically within the jurisdiction thereof," and cancelled exclusion proceedings in the case of an alien who departed from the United States as a stowaway and was refused admission at a foreign port.
Kaplan v. Tod, 267 U.S. 228 (1925).
The legislative history behind the definition of the term "entry" in the Immigration and Nationality Act does not disclose any intention to change prior administrative decisions or interpretations regarding the meaning of that term but was modified to include the judicial pronouncements which made intent and voluntariness of departure an ingredient of the term "entry." In view of the fact that the applicant in the instant case has testified he was refused entry at foreign ports and was confined on ship and was returned to the United States, in conformity with earlier administrative holdings we find that the applicant's present arrival does not constitute an "entry" into the United States under the present act. In view of our finding that there has been no entry, there is no basis upon which the ground of inadmissibility urged by the district director can be sustained. Likewise, in view of our conclusion we find it unnecessary to comment upon the theory advanced by the special inquiry officer holding that a voluntary departure was not involved because the applicant was not a sane person. The exclusion proceedings will be ordered terminated.
Order: It is ordered that the exclusion proceedings be terminated.