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If there were anything in the record or submitted by counsel in any wise showing that the respondent had been treated unfairly in this proceeding, we would be quick and eager to correct it, particularly because the case has certain sentimental appeal by reason of the respondent's youth and inexperience when the events involved occurred and because of her young child; but our review of the record and representations by counsel convinces us that the proceeding has been eminently fair, that it conforms to established standards, and resolving in her favor any doubt which might exist would not result in altering the conclusion heretofore reached.
The first point presented by counsel can be readily disposed of. The act concerned was enacted on June 11, 1946, and became effective (with exceptions, not involved herein) 3 months thereafter. Section 12, however, provided that "no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement." It has been judicially determined that the act is inapplicable to a proceeding initiated previous to September 11, 1946. (Harisiades v. Shaughnessy, 90 F. Supp. 431 (and 397) (S. D. N. Y., 1950)). Examination of the record shows the warrant of arrest was issued on October 29, 1945, and was served on the respondent on May 21, 1946, and that it set forth the charges sustained in the order of deportation. Hence the motion cannot prevail on the first point contained therein.
Counsel has submitted with his motion an affidavit, dated September 11, 1949, by P—— E—— V-, wherein he states that he was the respondent's husband from 1941 to 1944 and that from his personal knowledge and observation the respondent did not at any time practice prostitution and that the statement taken from her was taken, in his opinion, by putting her in fear of being separated from her child. Presumably this constitutes the "additional evidence" on which counsel relies to support points (2) and (3).
The probative value of the statement by the respondent's former husband is minimized when considered with the record. In the "confession,” acceptance of which is opposed by counsel, the respondent stated on July 25, 1942, at the Boston, Mass., Police Department:
I also admit I have been having intercourse for the last three months with men, and receiving money for same. I have had a hard time getting along as my husband works for the United Fruit Co. I have not seen him for the last five months.
During the course of the hearing Police Officer Cote testified in reply to queries by the respondent's representative, as follows:
Q. Did you meet her husband at all?
A. After the arrest.
Q. You met him in the Roxbury District Court?
A. No; in the station. He had just come from sea, I believe.
The respondent testified concerning her living conditions and the court proceedings (which followed her giving the "confession") on a charge of being "an idle and disorderly person" as follows:
I was living at 69 Gainsboro Street. I was here all alone. I was very lonely. I made friends with some people in the building. * * * They locked me up at Charles Street. Finally my husband came in and bailed me out. Then I appeared in court. You have the record. Judge Miles said, "Why don't you take this young lady home and we will forget the matter." My husband said "No; I want her to go on probation so she could be watched." So he put me on probation *** (p. 14).
Thus it is apparent that when the events occurred which are the basis for the present proceeding, the respondent's then husband was absent from her and had been for some considerable time and could not have had personal knowledge concerning her conduct; also, her testimony shows that when she was before the court he, the then husband, was mistrustful. Subsequent events may well have removed that mistrust; but neither his confidence in her integrity, nor lack of confidence, can outweigh the evidence supplied by the respondent herself, even though received with the utmost caution, when it is corroborated as here.
The full discussion of the record contained in our memorandum of July 7, 1950, makes further recital unnecessary for disposition of the motion.
Order: It is ordered that the motion for reconsideration and stay of deportation be denied.
Editor's note.-To like effect in unreported Matter of P, A-1631944, B. I. A. January 5, 1951.
IN THE MATTER OF C― R—
In DEPORTATION Proceedings
Decided by Board September 19, 1950
"Entry" into the United States within meaning of Immigration Laws.
An alien, who departed from the United States to Mexico in 1944, and returned to the United States in 1944, while on furlough from the United States Army (wherein he served from October 12, 1942, to October 6, 1945, when he was honorably discharged) is deemed to have made an entry (when he returned in 1944) within the contemplation of the immigration laws; and he was deemed to have been deported in 1949 pursuant to law on the basis of such entry* (and in addition, it was too late to attack the validity of the order of deportation executed in this case in 1949 as one not in pursuance of law; see 4, I. & N. Dec. 173).
Warrant: Act of 1924-No immigration visa.
Act of 1929-Arrested and deported-reentered within 1 year. Lodged: Act of 1917-Admits crime prior to entry: Burglary.
Act of 1917-Convicted of crime prior to entry: Burglary and larceny.
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated August 18, 1950, wherein deportation of the subject hereof to Mexico has been directed on all of the charges hereinabove set forth, except as to the offenses of larceny.
The subject of this proceeding testified that he was born in Guadalajara, Jal., Mexico, on August 10, 1907, and that he is a citizen of the country of his nativity. He further testified that he last entered the United States from Mexico at Del Rio, Tex., in an automobile accompanied by two Army officers.
The evidence of record shows that the appellant first entered the United States at Laredo, Tex., during the year of 1924 or 1925 and
*Editor's note.-Cf. Matter of J, A-6972834, C. O. March 18, 1949 (3, I. & N. Dec. 536 and Matter of O'D— A-1194276, B. I. A. June 7, 1949 (Int. Dec. 51) 3, I. & N. Dec. 632.)
that he remained here until about the month of June 1944. It is asserted that his mother died and for that reason he proceeded to Mexico. He reentered the United States either during the month of November or December 1944 at El Paso, Tex., at which time he presented evidence of furlough from the United States Army, he having been inducted on October 12, 1942. He was honorably discharged from the United States Army on October 6, 1945.
The evidence of record also shows that the subject hereof was deported from the United States on January 21, 1949, and he alleges that although he twice applied for permission to reapply for admission he had received no response to his letters of application. Notwithstanding the prior deportation, he nevertheless entered the United States in the circumstances hereinabove first set forth.
On August 10, 1939, the alien was convicted in Illinois for stealing United States currency in the value of $14, but because of alleged irregularity in procedure this offense will not be considered in connection with the present proceeding.
On July 29, 1935, the appellant was convicted in Texas for the offense of burglary for which offense he was sentenced to 3 years' imprisonment, but the execution thereof was suspended during good behavior. He was also charged with absence without leave in 1945 by the military authorities for which he was sentenced to 3 months' imprisonment. The offense of burglary in 1935 forms the basis for the present order of deportation on the charges placed against the alien during the course of the proceeding.
No record of the entry of the appellant can be located, either in 1925, 1944, or 1949, and inasmuch as he was coming to the United States to remain, his entry subsequent to the approval of the Immigration Act of 1924 (approved May 26, 1924), required him to have a consular immigration visa, as a prerequisite to lawful admission (8 U. S. C. 213). Inasmuch as he was not in possession of such document, he is subject to deportation pursuant to the provisions of that act (8 U. S. C. 214, 215). In addition thereto, the evidence shows this individual was arrested and deported from the United States on January 21, 1949, and his subsequent entry without permission, as required by statute, renders him subject to deportation on the additional charge hereinabove set forth, to wit: Reentered after arrest and deportation pursuant to law (act of March 4, 1929).
That this alien is subject to deportation is established adequately by the evidence of record.
The facts in this case are discussed in considerable detail in the opinion of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, and it is believed unnecessary to repeat all of the discussion therein contained.
The principal contention of counsel on appeal is that the alien's
entry in 1944 was as a member of the Armed Forces of the United States and that as such he did not effect entry to the United States within the meaning of the law and that by reason thereof he was not deported in pursuance of law in 1949.
As hereinabove set forth no record of lawful admission of the appellant can be located. Section 4 (b) of the Immigration Act approved May 26, 1924 (8 U. S. C. 204) defines a nonquota immigrant as an immigrant previously lawfully admitted to the United States who is returning from a temporary visit abroad.
The act of June 28, 1940 (54 Stat. 673, 8 U. S. C. 451) provides "any alien seeking to enter the United States who does not present a visa (except in emergency cases defined by the Secretary of State), a reentry permit or a border crossing identification card, shall be excluded from admission to the United States."
Section 14 of the act approved May 26, 1924 (8 U. S. C. 214), provides:
Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this act to enter the United States * * * shall be taken into custody and deported in the same manner as provided in sections 19 and 20 of the Immigration Act of 1917 * * (8 U. S. C. 155).
The evidence of record in this case shows that the alien proceeded to Mexico in 1944 because of the death of his mother while he was on furlough. It cannot be disputed that according to his own testimony he reentered the United States physically from Mexico in 1944. In the case of Schoeps v. Carmichael, 177 F. (2d), 391 (C. A. 9, 1949), page 396, the court said:
In order for an alien's return to this country to constitute an "entry" as contemplated by 8 U. S. C. A. sec. 155 (a) (supra), his departure must have been voluntary, with knowledge that his destination is foreign.' The intention to return to this country, whether after a mere few hours or an extended vacation abroad, is immaterial. If the length of time spent abroad is an element to be considered, it must be made so by Congress, not the courts."
The departure of the subject alien was voluntary in all respects and, therefore the case of U. S. v. Karnuth, 1 F. Supp. 370, is not analogous to the case at bar.
In addition, it is too late to attack the validity of the order of deportation executed in this case in 1949 as one not in pursuance of law. In the case of U. S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C. C. A. 2, 1932), the court said "it is now too late to attack that
1 Delgadillo v. Carmichael, 332 U. S. 388 (1947), 68 S. Ct. 10, 92 L. Ed. 17; United States ex rel. Claussen v. Day, 279 U. S. 398 (1929), 49 S. Ct. 354, 73 L. Ed. 758; United States ex rel. Stapf v. Corsi, 287 U. S. 129 (1932), 53 S. Ct. 40, 77, L. Ed. 215; Carmichael v. Delaney, 170 F. (2d) 239 (C. A. 9, 1948); Di Pasquale v. Karnuth, 158 F. (2d) 878 (C. C. A. 2, 1947).