Interim Decision #1291

Interim Decision #1291

MATTER OF DAVER

In DEPORTATION Proceedings

A-8599958

Decided by Board June 11, 1963

(1) Respondent, a lawful permanent resident of the -United States, who in 1956

when he was 16 departed with his mother and stepfather to Germany where

the latter was assigned to a tour of military duty and in 1959 when he was 19

returned to the U.S. with his parents. again under military orders of his stepfather, did not upon his return make an entry within the meaning of section

101(a) (13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his

parents and his departure to and presence in a foreign place was not voluntary

nor intended by him.

(2) Therefore, respondent's return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section

241(a) (4) of the Act on. the basis of his conviction on March 25, 1960, of a

crime involving moral turpitude.

Onanes:

Warrant: Act of 1952--Soction 241(a)(4) [8 ILSA1 1251(a)(4)] —Crime

within five years after entry—Atrocious assault and battery.

The ease eoTEAR forward on appeal by the trial attorney from the

decision of the special inquiry officer dated December 19, 1962

terminating the proceedings.

The record relates to a native and citizen of Germany, 23 years old,

male, single, who originally entered the United States for permanent

residence on January 9, 1954. On March 25, 1960 in the County

Court of Ocean County, New Jersey, the respondent was convicted

of atrocious assault and battery with a knife committed on December

21, 1959, as more fully set forth in the indictment and was sentenced

to confinement in the Bordentown Reformatory for an indeterminate

term. On August 24, 1960 the special inquiry officer found the respondent deportable as charged as one who committed a crime involving moral turpitude within five years after his last entry and was

sentenced to confinement for a year or more within five years after his

alleged last entry on August 31, 1959. On January 17, 1962 counsel

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for the respondent filed a motion for reopening and reconsideration

on the grounds (1) that there was not sufficient proof .upon which the

special inquiry officer could properly determine the question of the

respondent's entry or reentry into the United States; (2) that the

respondent did not enter or reenter the United States within five years

of the commission of the crime of atrocious assault and battery on December 21, 1050 ; and (3) that the respondent desired to produce proof

that his entry into the United States was not an entry pursuant to the

definition of section 101(a) (13) of the Immigration and Nationality

Act. On January 25, 1962 the special inquiry officer granted the

motion to reopen and on November 16, 1962 granted the government's

motion to reopen in connection with an application for adjustment

of status under section 245 of the Immigration and Nationality Act.

According to respondent's birth certificate he was burn on February

18, 1940 (Ex. 3) at Schweinfurt, Germany although his testimony is

to the effect that he was born February 18, 1942 (p. 17). We will

accept the birth certificate as being the correct date of birth. His

father was killed in the Second World War and his mother married a

United States citizen, a sergeant in the United States Army in October

1953. The respondent, his mother and stepfather came to the United

States in January 1954 when the respondent was admitted for permanent residence. He resided with his stepfather and mother. In

August or September 1956 the respondent's stepfather was assigned

to a new tour of duty in Germany and the respondent and his mother

were included in the orders and accompanied the respondent's stepfather to Germany (Ex. 5). The respondent lived with his stepfather and mother, went to high sehool and to the University of Maryland Extension Branch and returned to the United States in August

or September 1959 when his stepfather was transferred to this country

under military orders. The respondent was 16 years of age at the

time he departed and 19 years of age when he returned. During all

this period he was an unemancipated minor, in the custody and subject

to the control of his stepfather. It is believed that the New Jersey

statute and New Jersey cases cited by the trial attorney confirm the

conclusion that the respondent, as an unemancipated infant, was

under a duty to obey the order of his parents ; hi this case the

stepfather.

The issue in the case is whether the respondent made an entry into

the United States upon his return from Germany. The term "entry"

is defined in section 101(a) (13) of the Immigration and Nationality

Act, 8 U.S.C. 1101 (a) (13) as follows:

The term "entry" means any coming of an alien into the United States, from

a foreign port or place or from an outlying possession, whether voluntarily or

otherwise, except that an alien having a lawful permanent residence in the

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United States shall not be regarded as making an entry into the -United States

for the purposes 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: - • •

In commenting on the exception contained in the latter portion of

this definition, the framers of the legislation explained that "however,

for the purpose of determining the effect of a, subsequent entry upon

the status of an alien who has previously entered the United States

and resided therein, the preciseness of the term 'entry' has not been

found to be as apparent." More recently, the courts have departed

from the rigidity of that rule and 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 (DiPasguale v. Karnath, 158 F. 2d 878 (2d Cir. 1947)) nor did not leave

the country voluntarily (Delgada& v. Carmichael, 882 U.S. 388

(1917) ) ; 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.'

In the ease of DiPasquale v. Sarnuth,2 it was held that no "entry"

within the contemplation of the immigration laws had been made by

an alien who returned to the United States as soon as practicable following an unintended and unwitting departure which occurred when

the train upon which he was traveling between, points in the United

States crossed the international border without the alien's knowledge,

and indeed while he was sleeping. The ease of Daum:1Mo v. Carmie7b143 involved a Mexican alien who had made a. legal entry into the

United States in 1923, resided here until 1942 when he shipped out as

a member of the crew of an American merchant ship which was torpedoed and the alien was then taken to Cuba where he remained for

one week and then was returned to the United States. Deportation

was sought on the ground that he had been sentenced to imprisonment

for one year or more because of conviction of a crime involving moral

turpitude committed within five years after his alleged entry in 1942.

The Supreme Court reversed the Ninth Circuit Court of Appeals, following with approval the construction placed upon the word "entry"

2 U.S. Code Gong., and Adm. News, 82nd Cong., 2d Seas., p.1683.

158 F.2d 878 (2d Cir. 1917).

3 332 U.S. 388 (1947).

1

2

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by DiPasquale v. Karnuth,4 holding that the alien in that ease did not

make an entry within the meaning of the immigration laws; refusing

to attribute to Congress a purpose to make his right to remain here

dependent on circumstances so fortuitous and capricious as those which

existed in that case; in effect, holding that where an alien's departure

to or presence in a foreign country was involuntary, no entry was, in

law, made upon the alien's return to the United Statee.

The court in Carmichael v. Devaney,' held that a resident of the

United States who served in the United States Maritime Service during the, Second World War and who returned to the United States

after his ship had entered several foreign ports, did not make an

"entry" within the immigration laws when returning to the United

States because it was not his voluntary act but the exigencies of war

which he was a participant that brought him to foreign ports. To

like effect it has been held that an alien who, while residing in the

United States, is inducted into the. Armed Forces and during his tour

of duty serves in a foreign country is regarded as being physically

present in this country during all of the time. And that his return to

this country as a member of the Armed Forces does not constitute an

entry.c •

It is true that the facts in the present ease differ from those existing in the cited cases which led to the present definition of the term

"entry" as used in section 101 (a.) (13) of the Immigration and Nationality Act. However, the facts are substantially similar to those

existing in U.S. ex rel. Valenti v. Karnuth-. 7 That case involves a

schoolboy of 16 in an American public school who went with his

teacher and the class for a picnic to a Canadian beach The court

held that in the decisions on the subject of departure and reentry of

an alien, there is a necessary implication that the acts of the alien

were at all times voluntary and free from restraint of any kind, and

that there was entire liberty on his part to leave or not to leave, to reenter or not to reenter, as he pleased. The court held that the minor

schoolboy in that case could not possess the freedom of action to decide

whether or not he would go; he was not a. free agent acting entirely

of his own volition; he was under compulsion as if he were in the

schoolroom and was not voluntarily departing from and reentering the

country within the meaning of the statute; on. the contrary, he was

under compulsion both when he left for and when he returned from

such picnic. The compulsion under which the relator may be presumed

I see

6

170 F.2d 239 (9th Cir. 1918).

"Matter of J—M—D—, 7 F. & N. Dec. 105.

1 F. aupp. 870 (N.D.N.Y., 1982).

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to have acted serves to distinguish his case from cases where the departure was purely voluntary.

It is contended that the Valenti case has been repudiated in U.S.

sw rel. Dombrowski v. Karnuth.,

19 F. Supp. 222 (W.D.N.Y., 1937)

and Dracl&mos v. Hughes, 26 F. Supp. 192, 194 (W.D.N.Y., 1937).

However, neither of those cases involves a minor and the same answer

may be made in the tease of U.S. ex rd. Betty v. Day, 23 F. 2d 489, in

which the reentry of the relator did not occur during minority. The

principle of the Valenti case, i.e., voluntariness, has been followed in

a number of administrative deeisions. 8

In the present ease the respondent departed with his mother and

stepfather, who was in military service and under order to Germany

when he was 16 years of age and returned when he was 19 years of

age. It has been shown that the respondent was an unemanolpated

minor, under the custody and control of his parents, and he had no

choice nor was he asked whether he would depart. Under the law

in the State of New Jersey it was incumbent upon the minor respondent

to obey the directions of his parents and he was obliged to follow and

accompany his stepfather when the stepfather so directed. We do not

reach the question of whether the respondent's stepfather's departure

under military orders was a factor in the case. What is important

is that the respondent was under a legal compulsion to follow and

accompany his parents. Being under such compulsion, his case appears

to be undistinguishable from U.S. ex rel. Valenti v. Karnuth. 9 It is

believed that the respondent has established that he falls within the

exception set forth in section 101(a) (13) of the Immigration and

Nationality Act in that his departure to a foreign place was not intended by him or his presence in a foreign place was not voluntary.

It is concluded that at the time of his last return on August 31, 1959,

the respondent had not in contemplation of law made a reentry. Of

course, as regards his original entry on January 9, 1954, the definition

of the term "entry" eliminates the question of voluntariness. The

appeal will be dismissed.

ORDER : It is ordered that the appeal of the trial attorney from

the decision of the special inquiry officer dated December 19, 1962

terminating the proceedings be and the same is hereby dismissed.

'Matter of T—, 4 L & N. Dec. 235 (1951) ; Matter of P , 5 L & N. Dec. 220

N. ,

(1953) ; Matter of C , 5 1. & N. Dec. 370 (1953) ; unreported Matter of C

A-8410653 (September 30, 1960 motion to reconsider denied January 27, 1961).

1 F. Supp. 370 (N.D.N.T., 1932).

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