Interim Decision #2109

Interim Decision #2109

MATTER OF VARGAS-BANUELOS

In Deportation Proceedings

A-13532199

Decided by Board December 6, 1971

(1) Notwithstanding respondent did not accompany the illegal aliens into

the United States, deportability is established under section 241 (a) (13),

Immigration and Nationality Act, for aiding and abetting aliens to enter

illegally, where, in scheming with the aliens in Mexico, he instructed them

where to cross the border undetected, told them where to go upon reaching

the United States, and arranged for an accomplice to drive respondent's

truck to El Paso, Texas to meet them.

(2) Respondent, a lawful permanent resident, who initially departed the

United States with the intention of making an innocent, casual and brief

visit in Mexico but who deviated from this intention and embarked upon a

course of conduct contrary to a policy reflected in the immigration laws

(aiding and abetting aliens to enter illegally), thereby transformed the innocent character of his trip. Hence, he does not come within the ambit of

Rosenberg v. Fleuti, 374 U.S. 449 (1963), and upon his return made an

entry upon which to predicate a ground of deportation. [Yanez-Jacquez v.

INS, 440 F.2d 701 (C.A. 5, 1971), distinguished.]

CHARGE :

Order : Act of 1952—Section 241(a) ( 13) [8 U.S.C. 1251 ( a) (13 ) ]—Alien

who prior to entry, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any

other alien to enter or to try to enter the United

States in violation of law.

ON BEHALF OF RESPONDENT:

Karl Friedman, Esquire

American Bank of Commerce Bldg.

Suite 405

El Paso, Texas 79901

(Brief filed)

ON BEHALF OF SERVICE:

Irving A. Appleman

Appellate Trial Attorney

William E. Weinert

Trial Attorney

(Brief filed)

The special inquiry officer found the respondent deportable as

tharged in his decision of November 2, 1970. The special inquiry

∎fficer denied the privilege of voluntary departure as a matter of

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law. From the special inquiry officer's order the respondent appeals. His appeal will be dismissed.

The record relates to a 41-year-old married male alien, a native

and citizen of Mexico, who was admitted to the United States as

a lawful permanent resident in 1963. He is charged with having

entered the United States on or about April 4, 1970. The respondent's testimony was that he went to Mexico on or about April 2,

1970 to offer condolences to the family of a deceased cousin. On

or about April 3, 1970 he was approached by four aliens who

wished to enter the United States illegally. The respondent accepted money from them and made certain arrangements for

them. In connection with this the respondent was found guilty,

upon his plea of guilty, in the United States District Court, Western District of Texas, El Paso Division, on four counts of violation of 8 U.S.C. 1325 and 18 U.S.C. 2. These violations clearly

bring him within the purview of section 241 (a) (13) of the Immigration and Nationality Act.

Section 241 (a) (13) of the Immigration and Nationality Act

makes deportable any alien who:

prior to, or at the time of entry, or at any time within five years after any

entry, shall have, knowingly and for gain, encouraged, induced, assisted,

abetted or aided any other alien to enter or to try to enter the United

States in violation of law.

The Order to Show Cause indicates that the respondent was

charged with a violation for conduct occurring prior to entry.

The main issue raised by this appeal is whether an entry occurred on or about April 4, 1970.

Counsel claims that the special inquiry officer made three erroneous holdings : (1) that the respondent made an "entry" in April

of 1970, (2) that the respondent aided and abetted the aliens in

their actual entry into the United States, and (3) that the respondent received gain. We shall consider the last two points

first.

The contention that there was error in holding that the respondnet aided and abetted aliens in their actual entry into the

United States is without merit. Counsel evidently takes the position that section 241 (a) (13) applies only to an alien who has

physically brought another alien into the United States. The language of the statute is not that narrow. At oral argument counsel urged that no crime would have been committed had the aliens

never entered. This argument is mistaken for two reasons : (1) it

is not the fact of a criminal conviction that renders an alien deportable under section 241 (a) (13), and (2) the statute covers ac811

Interim Decision #2109

tivity amounting to aiding and abetting another alien to try to

enter, as well as to enter. In the present case the special inquiry

officer found that the respondent, scheming with the aliens, instructed them in where to cross the border undetected, told them

where to go once they reached the United States, and telephoned

a woman accomplice in Denver, Colorado and had her drive to El

Paso, Texas to meet the aliens in the respondent's pickup truck.

We agree with the special inquiry officer who found that respondent's deportability under the charge was established by clear, convincing and unequivocal evidence. The special inquiry officer was

also correct in accepting a certified copy of the record of conviction to support the Government's charge.

The contention that the respondent did not receive gain is likewise 'without basis. As the special inquiry officer pointed out,

there was the admission of the respondent, along with other evidence to prove the element of gain. We agree with the special inquiry officer that the element of gain has been proved by clear,

convincing and unequivocal evidence.

Counsel's chief contention is actually a claim that the present

case comes within the ambit of the Supreme Court's decision in

the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). That is, he

would have us accept the proposition that no "entry" occurred in

April of 1970 by virtue of the following statement of the Supreme Court in the Fleuti case:

[W]e declare today simply that an innocent, casual and brief excursion by a

resident alien outside this country's borders may not have been "intended"

as a departure disruptive of his resident status and therefore may not subject him to the consequences of an "entry" into the country on his return.

Counsel bases this contention upon the fact that the respondent

testified that the respondent testified that his purpose for making

his visit to Mexico was merely to offer condolences to the family

of his deceased cousin. Counsel would have us look only to the respondent's intention at the time of departure, disregarding his involvement in alien smuggling which apparently developed only

after he had reached Mexico.

The facts in the present case closely parallel those in Matte?' of

Valencia-Barajas, Interim Decision No. 2001 (BIA, 1969), which

involved a lawful permanent resident who went to Mexico for the

purpose of visiting his parents, but who also knowingly and for

gain aided, assisted and abetted aliens to enter the United States

illegally. In that case we held that Fleuti did not apply, and that

there had been an "entry." In commenting upon the alien's conviction for aiding and abetting the illegal entry of aliens into the

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United States, we noted that, "This fact could support an inference that his purpose in departing from the United States was to

accomplish an object which is contrary to a policy reflected in our

immigration laws." We did not expressly base our decision upon

an inference so drawn, but determined only that "In any event,

we conclude that the respondent's departure can be regarded as

`meaningfully interruptive' of his permanent residence."

We said in another case, Matter of Alvarez-Verduzco, 11 I. &

N. Dec. 625 (BIA, 1966), that the Fleuti, doctrine was inapplicable to a lawful permanent resident alien who, although he did not

go to Mexico for the purpose of buying heroin, did nonetheless attempt to bring heroin into the United States in violation of law.

Counsel cites the case of Yanez-Jacquez v. INS, 440 F.2d 701

(5 Cir., 1971), as authority, to support his contention that there

was no entry in April 1970. The Fifth Circuit Court of Appeals

in that case overruled our decision in Matter of Yanez-Jacquez,

Interim Decision No. 2019 (BIA, 1970), wherein we held that a

permanent resident alien who departed to Mexico for a short

visit, the purpose of which was characterized by criminal intent,

was not within the Fleuti rule, but made an "entry" in the eyes

of the immigration laws. The Fifth Circuit Court, applying all

the criteria outlined in Fleuti, disagreed and concluded that there

was less than adequate evidence to support a finding that the

alien had left the United States with an intent to interrupt his

status as a permanent resident alien. The court itself indicated

that "This case is necessarily limited to the facts," and "A different set of facts applied to the criteria to be weighed might dictate

a different result."

The court in Yanez-Jacquez was referring to the factors enu

merated in the Fleuti decision as having a bearing upon whether

departure by a resident alien should be interpreted as a meaningful interruption of his resident status. One factor was the purpose of the visit. As Justice Goldberg said in the majority opinion, "... if the purpose of leaving the country is to accomplish

some object which is itself contrary to some policy reflected in

our immigration laws, it would appear that the interruption of

residence thereby occurring would properly be regarded as meaningful."

The Yanez-Jacquez case is distinguishable from the present

case. First of all, the alien in that case was not charged with deportability under section 241 (a) (13) for having assisted aliens to

enter the United States illegally. Secondly, the alien had been issued a border crossing identity card and was in the habit of mak-

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ing twice-weekly crossings into Mexico. The court noted that

"Each time, however, he returned to the United States and appeared outwardly to regard this country as his permanent residence." The only criminality attached to any of his brief visits to

Mexico occurred in connection with the following incident. On

one of his trips to Mexico he was assaulted and robbed. The next

day, armed with an icepick, he returned to Mexico in a fruitless

search for his assailants. The respondent, like the alien in Valcencia-Barajas, spura, stands in a different light for he has actually

been convicted of a crime involving an object clearly contrary to

policies reflected in our immigration laws, namely, the crime of

assisting the illegal entry of aliens into the United States. The respondent has been charged with deportability under section

241(a) (13). The alien in Yanez-Jacquez was charged with deportability under an entirely unrelated statutory section. Therefore, we do not apply the Fifth Circuit's holding in Yanez-Jacquez to the facts of the present case.

In another case, Caudillo-Villalobos v. INS, 361 F.2d 329 (5

Cir., 1966), the same court sustained a determination of this

Board that a lawful permanent resident alien had made an

"entry" within the contemplation of the Fleuti doctrine when he

returned to this country after a conviction abroad of the crime of

incest. The court affirmed our decision in Matter of Caudillo-Villalobos, 11 I. & N. Dec. 15 (BIA, 1965), wherein we said, "the

type and length of this absence is not the innocent, casual, and

brief absence that was present in the Fleuti case."

Consequently, we agree with the special inquiry officer that the

Fleuti rule is not applicable to the factual situation found in the

present case. We go slightly beyond our holding in Valencia-Barajas, supra, and hold that although the respondent may have

departed the United States with the intention of making an

nnocent, casual and brief excursion abroad, he deviated from

;his intention and embarked upon a course of conduct contrary to

policy reflected in the immigration laws; and by doing so, he

;hereby transformed the previously innocent character of his trip

nto something other than innocent, at least so far as the immi;ration laws are concerned. In such a case, the respondent's de)arture no longer is considered by us as not intended to be disuptive of his resident status. As a result, he now may be

;ubjected to the consequences of an "entry" upon his return. We

accordingly accept the finding of the special inquiry officer that

le had made an entry and is subject to deportation because of his

-

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violation of section 241 (a) (13) of the Act. We have no alternative but to affirm the decision of the special inquiry officer.

The special inquiry officer denied the respondent the privilege

of voluntary departure because he could not establish that he was

a person of good moral character for the five-year period as required under section 244 (e) of the Act. The special inquiry officer

concluded that the conviction barred, as a matter of law, a finding of good moral character by virtue of section 101 (f) (3). We

agree with that conclusion.

Hence, the respondent's appeal is without merit and must be

dismissed. The following order will accordingly be entered.

ORDER: The appeal is dismissed.

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