Interim Decision #1326

Interim Decision #1326

HATTER. OF KARL

In DEPORTATION Proceedings

A-10981520

Decided by Board March 9,1964

Respondent's reentry in October 1962 upon a false claim to United States citizenship following a 10-day vacation in Mexico constitutes an entry under

section 101(a) (18), Immigration and Nationality Act, upon which to predicate

a ground of deportation L.Rosettburg v. Monti, 874 U.S. dde, distinguished_]

°Hamm:

Order: Act of 1952—Section 241(a) (4) (8 U.S.O. 1251(a) (4) I—Convicted of

crime involving moral turpitude committed within 5 years after

entry, and sentenced for a year or more; to wit : Interstate

transportation of stolen motor vehicle.

Respondent is 21 years old, single, male, alien, a native and last a

citizen of Hungary. He last entered the United States at El Paso,

Texas, in October 1962, and on this entry is based the charge set forth

above, that respondent was convicted of a crime involving moral turpitude committed within 5 years after entry. The special inquiry officer

found that respondent is not deportable on this charge, because respondent's last entry did not constitute an "entry" under Rosenberg v.

Fleuti , 874 U.S•. 449, 10 L. ed. 2d 1000 (June 17, 1963). The acting

trial attorney appeals to this Board from the special inquiry officer's

decision, alleging that this entry is an entry as required by the statute

and is not within Fleuti. The special inquiry officer's order will be

withdrawn. and the record reopened for consideration of respondent's

application under section 213 (h) .

Respondent was born in Hungary on February 14, 1943. He believes

that six months after his unauthorized departure he lost his Hungarian

citizenship. He entered the United States on December 30, 1956, and

was accorded the status of lawful permanent resident as of the date of

his original arrival -under the Act of July 25, 1958, relating to

Hungarian refugees. His last entry was in October 1962 from

Mexico at El Paso, Texas.

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Respondent was convicted for check forgery in 1957 at the age of

15. He states that he was sentenced to imprisonment for 15 months.

The record of that conviction is not a part of this record, but the special

inquiry officer states that respondent was treated as a juvenile delinquent at that time (Tr., p. 16). On February 8, 1960, respondent was

sentenced to "a period not to exceed his minority" in the United States

District Court, District of Minnesota, upon a plea of guilty of having

committed an act of juvenile delinquency in the matter of unlawfully

transporting a stolen car in interstate commerce. He was then 17

years of age, so the period of his sentence was 4 years. He was paroled

on February 1, 1962. Respondent was sentenced on February 6, 1963,

for 2 years or "until his deportation could be accomplished," for

second offense of transporting a stolen car, committed on or about

December 5, 1962. The respondent has been in the United States about

7 years, and he has spent almost 5 years of this time in penal

institutions.

Karl testified that he made several trips into Canada and Mexico,

that upon one return he was delayed about 45 minutes by the inspection routine. Thereafter, he claimed birth in the United States when

he returned from Canada and Mexico, because he "didn't want to mess

with the inspection routine if I showed my green card" (exh. 12) .

He testified that his trips to Canada at Vancouver were usually just

overnight, because he had friends there. His vacation trip to Mexico

in October 1962 was his only extended absence from the United States.

He and two friends took a motorcycle trip to Mexico City for a period

variously described as a week, 10 days, or 2 weeks. He had his alien

registration (green) card with him, but, having found it less timeconsuming to claim birth in the United States, he did not show his

card.

Respondent contends that he cannot be deported for having committed a crime within 5 years after entry because his return to the

United States was after a brief casual trip to Mexico and did not constitute an "entry" under Rosenberg v. Fleuti, supra. The trial attorney

contends that the instant case is distinguishable on its facts from

Fleuti for the following reasons: (1) Karl's entry in October 1962

was made after a 10-day vacation to Mexico, whereas Fleuti went into

Mexico and returned after "about a couple hours," to quote the Supreme Court decision. (2) Kfirl made an illegal entry into the United

States from Mexico by a false claim of citizenship, whereas Fleuti on

his return presented himself for inspection and was admitted as a

lawful returning resident alien. While the Supreme Court decision

does not state specifically that Fleuti returned legally, the Circuit

Court of Appeals states that Fleuti "then re-entered as a returning

708-456-65-----32

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Interim Decision #1326

resident alien." 1 (3) The appeal seeks to establish that respondent's

entry without inspection was, to quote the Supreme Court, "contrary

to some policy reflected in the immigration laws." (4) Fleuti was returning to a lawful permanent residence, whereas the respondent was

in the United States after several prior entries on a false claim to

citizenship; the trial attorney contends that following these entries

without inspection, respondent's residence in the United States was no

longer lawful, and that to gain the benefit of the Fleuti decision, an

alien must be returning to a lawful residence. These contentions were

also argued before the Board by the Service representative.

The Supreme Court in Fleuti first refers to "the hind of brief absence

from the country that characterizes the present case." The Court

again refers to the length of time Fleuti was stbsent from the United

States as follows: "The question we must consider, more specifically,

is whether Fleuti's short visit to Mexico can possibly be regarded as

a 'departure to a foreign port or place . . . [that] was not intended,'

within the meaning of the exception to the term 'entry' created by

the statute." The Court refers also to the facts that Fleuti made

"his afternoon trip," and that he was an alien "long resident in this

country after lawful entry" who "merely Stepped across an international border." The Court again states, "One major factor relevant

to whether such intent can be inferred is of course the length, of time

the alien is absent." (Emphasis supplied throughout.) The special

inquiry officer concluded that respondent's temporary absences of from

one to 10 days from the United States were not "meaningfully interruptive of his permanent residence status," notwithstanding his "evasion of proper inspection as an alien upon his return from most of

those temporary visits abroad," and that "the respondent's intent at

time of departure must be the critical test of whether his permanent

residence status" was interrupted under the Fleuti decision.

We disagree with the special inquiry officer's conclusion that the respondent's return in October 1962 does not subject him to the consequences of an "entry" sufficient to sustain the present charge. We

think, under the particular circumstances of this case, that an absence

of 10 days is too long to permit Karl to bring himself within the rule

of Fleuti. His vacation trip took him as far as Mexico City and is in

a very different category from a visit of a few hours which began tend

ended the same afternoon. We are not prepared to state at this time

just where the line will be drawn on the issue of how long the visit

must have been to make the return constitute an "entry." The length

of the visit is, of course, not the only factor. Respondent intended

to resume his residence in the United States st the end of his vacation,

1

menu v. Rosenberg, 302 F. 2d 652 at 653 (9th Cir., 1962).

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Interim Decision #1326

but this intent alone certainly does not preserve to him the right to

return to the United States illegally, knowingly evading inspection,

following a 10-day absence from the country. We cannot stretch

the Fleu,ti doctrine far enough to cover the facts in this situation.

The Supreme Court quotes with approval from Di Pasquale v.

Karnuth, 158 F. 2d 878 at 879, wherein Judge Hand remarked that

"it is . . . important that the continued enjoyment of . . . [our]

hospitality once granted, shall not be subject to meaningless and

irrational hazards." Karl, however, subjected himself repeatedly to

the hazards of exclusion or deportation by making several departures

and illegal entries by claiming birth in the United States. If the

immigration statutes and the established techniques of inspection

are to have any meaningful and rational application, it must be held

that lad made an entry from a foreign port or country under section

101(a) (13) of the Immigration and Nationality Act when he returned

from Mexico in October 1962.

We are not prepared at this time to hold, as requested by the Service,

that every entry without inspection following a visit outside the United

States, no matter how brief, completely neutralizes the Fleuti holding.

The case will be remanded to the special inquiry officer to permit him

to make a determination on respondent's application for 'withholding

of his deportation to Hungary under section 243 (h) on the ground

that his deportation to that country would subject him to physical

persecution. Because he intended to terminate the proceedings, the

special inquiry officer did not dispose of this application.

ORDER: It is ordered that the special inquiry officer's order of

November 22, 1963, terminating these proceedings be and is hereby

withdrawn.

It is further ordered that the record be reopened for determination

of the respondent's application under section 243(h) of the Immigration and Nationality Act.

483