the fact of their return and from the master's confidence that they would return to sail with the vessel when he learned they were missing.

(b) The fact that the pressure to return was mental and/or moral rather than physical should make no difference. It takes efforts to maintain such discipline just as well as to reapprehend seamen unwilling to return.

(c) Here, just as in the Aeas case, there is the consideration that an adverse decision imposing a fine-of any amount-would tend to discourage vessel owners from the efforts that effect the return and departure of the seamen-in the Aeas case, from searching and reapprehending-here, from maintaining the kind of crew discipline, and determination to search and reapprehend immediately if necessary, that assured ultimate return of any escapees and their departure with the vessel on its scheduled voyage.

The only justification for the decision in the Aeas case (supra), especially when considered in conjunction with the specific provision of section 20 of the act of 1924 (supra), where a violation had been established, was an effort to relieve the violator from the harsh and rigid effect thereof particularly when there had been a coinpliar.ce with the purpose of the statute, to wit: The deportation of the alien seamen on the same voyage. By reason of the subsequent amendment of the statute as hereinafter referred to, that justification has been removed.

It was asserted by counsel on the oral argument that the case under consideration is not distinguishable from the decision of this Board in the Matter of S. S. Aeas (supra).

This Board pointed out in our decision that in our opinion the case is distinguishable in that at the time the immigrant inspector checked the crew prior to the ship's departure, the alien seamen involved were not on board the vessel, but had departed therefrom, despite the order to detain them on board and it was not until the said officer was leaving the vessel that the alien seamen returned of their own volition and not with the assistance of or any effort on the part of those whose duty it was to so detain.

It is thus established that there was a failure to detain on board these two alien seamen as required by statute. The most that is argued is the discipline maintained by the vessel to assure the return of the seamen who thus departed from the vessel in violation of the order of detention.

Counsel indicates that the pressure to return was mental or moral rather than physical but that this should make no difference. This is, however, quite different because in the case of the S. S. Aeas it

was shown that there was a substantial physical effort to apprehend the departing seamen and a continuous effort to comply with the order issued in that case, the apprehension and subsequent deportation being due entirely to the efforts of the persons on whom the duty imposed by statute devolved.

The duty required by statute to detain on board and deport becomes absolute when a notice to so detain is served upon any of the persons mentioned and where such alien seaman effects escape or departs from the vessel, fine has been incurred irrespective of diligence. See Lloyd Royal Belge Societe Anonyme v. Elting, 55 F. (2d) 340; and Hamburg-American Line v. United States, 52 F. (2d) 463.

In the case of S. S. Aeas which is cited as analogous this Board distinctly referred to the continuing effort to apprehend the alien seamen as well as the diligent efforts, which efforts ultimately resulted in the apprehension and removal of the aliens from the United States on the same vessel on which they arrived.

In the Matter of S. S. Baron Haig, 56118/590, decided by this Board on August 26, 1943, 1, I. & N. Dec. 523, this Board held that when the responsible parties failed to detain an alien seaman for inspection as required by section 20 of the Immigration Act of 1924, the mere fact that he returned to the vessel before it sailed does not constitute a defense to liability for fine incurred under that section. In our decisions we said:

The case of the S. S. Aeas, 56068/170 *** is referred to. In that case we held that the fine would not be imposed where a seaman ordered detained on board escaped his guards, but through the efforts of the responsible parties was apprehended, his detention on board was resumed, and he departed with the vessel when it sailed. That decision is not to be interpreted as a broad inroad upon the application of section 20 of the Immigration Act of 1924. That a seaman sailed out with the vessel on which he came has not been made a general defense available to responsible parties in all cases in which a fine is sought to be imposed under section 20. The ruling in the Aeas case served the very practical purpose of encouraging the responsible parties to try to apprehend escaped seamen. It was not intended to be a license to such parties to permit alien seamen to go ashore without inspection. If such were the rule, the master or agent, willing to take a chance that his men would return to the ship, could take the matter of granting or denying shore leave into his own hands.

Of similar import is the decision of this Board in the Matter of S. S. Davila decided October 30, 1943, 1, I. & N. Dec. 578. In that case, we held that when the responsible parties permitted an alien seaman to go ashore who has been ordered detained on board the mere fact that he returned to the vessel before it sailed does not constitute a defense to liability for fine incurred under section 20 of the act of 1924 (supra). We made reference to the decision of this Board in the case of the S. S. Baron Haig, (supra), pointing out that in that case we imposed a fine for failure to detain the alien seamen for inspection. We said:

*

Notwithstanding the fact that the seamen returned to the vessel and sailed out with it when it departed foreign, we held that the doctrine of the Aeas case (supra), did not apply * *. Though that case dealt with the failure to detain a seaman on board prior to inspection, and the instant one with a failure to detain a seaman after the service of an order to do so, we feel that the same reasoning should apply here. The master apparently took matters into his own hands and permitted the seaman *** to visit his friend in the hospital. He thereby failed to detain this seaman in accordance with the order served upon the responsible parties. Though the master was motivated by humane considerations in permitting this seaman to leave the vessel, the express terms of section 20 of the Immigration Act of 1924 were violated by him and the responsible parties must now be held liable therefor.

As stated in this opinion there was a lack of continuing effort to enforce the detention of the alien seamen aboard the vessel and after their departure to continue that effort pursuant to the duty imposed by statute. Here, the seamen merely returned to the vessel and departed thereon subsequent to their departure from the vessel, which departure was violative of section 20 of the act of 1924. The time of the seamen's absence from the vessel is merely relative, the violation being that they left the ship despite the order to detain on board.

Of greater importance, however, in the determination of this case is the amendment of section 20 of the act of 1924 (supra) on December 19, 1944 (58 Stat. 516, 8 U. S. C. 156), authorizing the Attorney General to mitigate penalties for violation of the said section of the statute. This amendment occurred subsequent to our decision in the Matter of the S. S. Aeas (supra). We are no longer justified in following the principle established in that case. When that decision was rendered there was no power to mitigate the penalty imposed by statute and it was felt that the said penalty required by statute, to wit: $1,000 for each violation, disproportionate to the technicalities of the violation, that it was concluded that no fine should be imposed.

The fact that the two alien seamen left the vessel subsequent to the order to detain on board constitutes the violation even though they later returned to the vessel of their own accord and departed thereon in their capacity as seamen. Penalty has therefore been incurred. These facts, however, may be considered in connection with the petition for mitigation, which petition is of record. Mitigation is not within the jurisdiction of this Board and the case must necessarily be remanded to the Commissioner of Immigration and Naturalization for his further consideration in this regard.

In view of all of the foregoing and after careful reconsideration of all of the evidence of record as well as the representation of counsel, it is my conclusion that the present motion must be denied.

IN THE MATTER OF P———

In DEPORTATION Proceedings

A-4593207

Decided by Board January 17, 1951

"Entry” into the United States within meaning of Immigration Laws.

An alien, who crossed the border from the United States into Mexico in 1945, procured an immigration visa thereafter under sec. 4 (b) of the Immigration Act of 1924 as "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad", then returned to the United States about 3 or 4 days after his departure from the United States, was held to have effected an "entry" upon his return to the United States in 1945, within the meaning of the immigration laws as a matter of law, even if full credence were given to the respondent's claim that he did not knowingly depart from the United States because of his (voluntary) drunken condition, (the evidence of record not found supporting such claim). (See 4, I & N. Dec. 126.)

CHARGE:

Warrant: Act of 1917-Crime within 5 years-Assault with intent to commit murder and robbery first degree.

BEFORE THE BOARD

Discussion: The respondent appeals to us from an order of deportation entered by the Assistant Commissioner on October 25, 1950. The case concerns a native and citizen of the Philippine Islands, male, 40 years of age. On April 18, 1949, he was convicted by the Superior Court of Alameda County, Calif., of the crimes of assault with intent to commit murder and robbery first degree. He was sentenced to serve 14 years for the one offense, and 5 years to life for the other. Both offenses were committed on March 10, 1949.

The proceeding is based on the premise that the respondent has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude "committed within 5 years after the entry of the alien ***" (8 U. S. C. 155). It is clear that he has been sentenced for such a term and that the offenses involved the element of moral turpitude, but he raises the issue of whether there has been an "entry" within 5 years of the commission of the offenses of which he has been convicted.

The record establishes that he arrived in the United States in 1928 and resided here until 1945 when he crossed the border into Mexico. In order to return he obtained an immigration visa, which was issued to him by the American consul at Tijuana, Mexico, on December 7, 1945, under section 4 (b) as "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad." He returned on the day the visa was issued, being but 3 or 4 days after his departure from the United States. Zurbrick v. Woodhead, 90 F.( 2d) 991 (C. C. A. 6, 1937).

The respondent's contention, however, is that his presence in Mexico was involuntary and hence his return to the United States was not an "entry" within the contemplation of the immigration law. He testified that he had been drinking and had no knowledge of how he came to be in Mexico. His testimony is as follows:

*** that is was through ignorance that I crossed the border, because I was driving around southern California and I did not know where the border was.

Q. Do I understand then that you mean to say that you did not know you were entering Mexico when you crossed the line?

A. No.

*

Q. At the time you crossed the line did you notice that you went through a large gate with a number of officials on duty?

A. I was leaning against the side of the car when the guy drove in. I had a little bit to drink at that time and I was not driving and I did not even know I went to Mexico until the next day when I tried to come back and they would not let me come back, so I had to see the American consul.

Q. When did you first know you were in Mexico?

A. The next day when I tried to come back to the States. The hotel where I stayed had a lot of Chinese and I did not know it was in Mexico but when I went to the immigration station the next day I found out I was in Mexico.

In his appeal to us the respondent states:

This entry was not through my own volition or intent of mind to go or live in Mexico. I had no concept as to where I was or how I had arrived in Mexico at that time. When I awoke the next morning I was positive that I was still in California, and I never for a moment the slightest doubt otherwise.

Any "entry" into the United States within the contemplation of the immigration law includes, with limitations as stated below, any coming of an alien from foreign country into the United States, whether it be a first or subsequent coming. U. S. ex rel. Volpe v. Smith, 289 U. S. 422, 1933. The fact that the absence was of short duration is of no moment, Schoeps v. Carmichael, 177 F. (2d) 391 (C. A. 9, 1949); Zurbrick v. Woodhead, 90 F. (2d) 991 (C. C. A. 6, 1937). Courts, however, have determined that there is no such "entry" when it results from the exigencies of war, or by travel on a common carrier between points within the United States without knowledge that the route of