such travel involved a temporary crossing of the international land border, or where freedom of action was wanting.1

The alien seeks to invoke an exception to the rule that return from a foreign place involves an "entry." Exceptions are narrowly and strictly applied. The record shows that the situation presented here was in no wise comparable to the precedent cases establishing the exception. The alien represents that he was drunk and was unaware he was departing from the United States. Voluntary drunkenness is no defense to crime (save as to degree where premeditation or malice is involved); in torts it is not regarded as even a mitigating circumstance; nor does it void a contract, although it may render it voidable, not so much because of the drunkenness of the one party as the fraud and imposition of the other. Hence the alien must be held to the same degree of responsibility as if he were sober when he departed from the United States. We note from the record that the International border is conspicuously marked on the highways thus charging any one who passes with knowledge that he is departing from the one country and entering the other. Furthermore, we take judicial note that principal points of ingress and egress on the border are attended by immigration officers, and the gates are closed during hours that officers are not in attendance.

1

1It has been determined that return to the United States under the circumstances stated below did not involve an “entry” within the contemplation of the Immigration law:

An alien was rescued from the ocean, after his vessel which was engaged in coastwise travel, was torpedoed and he was taken to Cuba, from whence he returned to the United States. The exigencies of war, and not his voluntary act, put him on foreign soil. Delgadillo v. Carmichael, 332 U. S. 388, 1947.

Travel by train from and to points within the United States, without knowledge that the train crossed the International border. The intent of a carrier, unknown to the alien, to carry him across the border and back again should not be imputed to the alien. DiPasquale v. Karnuth, 158 F. (2d) 878 (C. C. A. 2, 1947); Matter of RR, A-3153429, B. I. A., January 6, 1949.

Inadvertent boarding of the wrong bus in Detroit, resulting in travel to Windsor, Canada, from which there was an immediate return. There was no purpose or intent to depart from the United States. Matter of P2402141, June 7, 1949.

war.

B. I. A., file A

Return from foreign service in the United States Maratime Service during the The exigencies of war, and not the alien's voluntary act, took him to foreign ports. Carmichael v. Delaney, 170 F. (2d) 239 (C. C. A. 9, 1948); Matter,

of D—, A-5869934, B. I. A., March 7, 1950.

Return to the United States from private employment in Alaska, pursuant to travel arrangements made by the employer at a time when war conditions necessitated that such travel be through Canada. Matter of P—, A-5438591, B. I. A., August 9, 1949.

Attendance by a school boy at a school picnic on a Canadian beach, under the supervision of the teacher. Compulsion and lack of freedom of action were the controlling factors. U. S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370, 1932.

The foregoing is based upon full credence being given the respondent's claim that he did not knowingly depart from the United States. Additionally we note that two hearings have been held in this proceeding, the first on August 10, 1949, before a presiding inspector under the practice which then prevailed, and the second on August 15, 1950, before a hearing examiner in conformity with the Administrative Procedure Act. The testimony in the earlier hearing was introduced as an exhibit in the later hearing pursuant to a stipulation signed by the respondent. During the earlier hearing the respondent testified as follows:

I first came to the United States at Seattle, Wash., on September 14, 1928, and I was admitted for permanent residence. I resided in the United States continuously from 1928 until 1945, when I went to Mexico and I was in Mexico for 3 or 4 days only, while I was waiting for my visa.

It was in the second hearing that the claim was first advanced that it was through ignorance he had crossed the border. Respecting such claim the hearing examiner made the following comment in his summary:

*** it is noted that this statement that he did not know that he was departing from the United States arises for the first time during the present proceedings and that the respondent made no mention of it at the original hearing on August 10, 1949. The hearing examiner is not impressed by the statement of the respondent and doubts his sincerity.

We think that such impression has much support. However, on both the law and the evidence we are led to conclude that the appeal should be dismissed.

Order: It is ordered that the appeal from the decision of the Assistant Commissioner be dismissed.

IN THE MATTER OF E

In VISA PETITION Proceedings

A-8038432

(VP-399862)

Decided by Board January 18, 1951

Visa petition-Husband-petitioner married his niece-beneficiary in Portugal (1948)-Validity of marriage.

The marriage of uncle and niece in 1948 in Portugal being considered valid in Portgual and the attorney general of the State of California having indicated that the parties to such marriage would not be prosecuted (on cohabiting in California), in the circumstances herein outlined, the visa petition of the husband on behalf of his wife would be approved, since it does not appear the uncle left California for Portugal with the intention of marrying his niece.

BEFORE THE BOARD

Discussion: This matter is before us by reason of a motion filed by counsel asking that the matter be reopened and the entire case reconsidered on the basis of a communication from the office of the attorney general of the State of California.

This matter was before us previously on appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated September 13, 1950, wherein it was ordered that "approval of the petition of Mr. E

be revoked."

was born in Santo She is a citizen of

The subject of the petition, M———— R——— EAntao S. Jorge, Azores, on September 4, 1920. Portugal. On September 27, 1948, she was married to one J JSE, she being the blood niece of her husband, to wit: The daughter of his sister and M-BB-O

or

The facts in the case are set forth in decision of this Board dated November 28, 1950. In support of the validity of the marriage between the parties as aforesaid, there was submitted a certificate of marriage from the civil registry of the Portuguese Republic together with a translation of a communication from the general director of the department of justice, Lisbon, Portugal, dated August 8, 1950, to the effect "that the marriage celebrated between you and your uncle, ***

260397-54-17

notwithstanding the lack of concession of dispensation of relationship for its consummation is fully valid under the laws of Portugal.”

There was also submitted a communication from the district attorney of Santa Clara County, Calif., dated March 17, 1950, wherein it is stated in substance that it would not be a violation of the law for Mr. and Mrs. E to cohabit in California and if they do cohabit in California, his office would not prosecute for the violation of the California law making such marriage if contracted there unlawful.

Notwithstanding the communication of the district attorney of Santa Clara County, Calif., section 59 of the Code of Laws of the State of California provides that marriages between uncles and nieces are void and section 285 of the Penal Code provides for the punishment of persons who violate this provision of the State statute.

In the Matter of B- decided December 8, 1949, File VP-377846, this Board indicated that the district attorney for Contra Costa, Calif. was consultant in that case and after consideration of an opinion dated May 17, 1933, of the attorney general of California (VP–173796), that officer stated that he could only say that if the parties cohabited in California they could be convicted of the crime of incest.

The attorney in the instant case has submitted a letter from the deputy attorney general of the State of California, wherein it is stated among other things that it is his opinion that the district attorney of Santa Clara County, Calif., has clearly stated the law applicable to the situation in this case and that his office concurs in the views thus expressed, to wit: That the parties would not be prosecuted in California for violation of the California law making marriages here contracted unlawful.

In an opinion of the Attorney General, it was held that the marriage between an uncle and niece was lawful in Poland and as the uncle and his niece could maintain the relationship of husband and wife at the place of residence in Virginia, provided the uncle left Virginia for Poland without any intention of marrying his niece, that there was no legal ground for refusing to accept the certification of the Department of Labor as to the wife's status.

That case is analogous to the case under consideration and inasmuch as the attorney general of the State of California has now indicated that the parties to the present marriage would not be prosecuted in California in the circumstances herein outlined, it is our conclusion that the order of November 28, 1950, should be withdrawn and that the approval of a petition for the issuance of an immigration visa should be reinstated.

Order: It is ordered that the order of this Board dated November 28, 1950, be withdrawn and that approval of the petition for the is suance of an immigration visa be reinstated.

IN THE MATTER OF W

In DEPORTATION Proceedings

A-5636445

Decided by Board January 19, 1951

Crime involving moral turpitude-Section 405, New York State Penal CodeLooking to indictment to determine whether the offense of which convicted involves moral turpitude-"Indictment" involved, when conviction for lesser crime than indicted (N. Y.).

(1) In certain cases of crimes of which convicted, we may look to the pertinent indictment to ascertain whether moral turpitude inheres in the offense involved. (See 2, I. & N. Decs. 357, 724.)

(2) In New York State, a criminal judgment must have the support of a pleading (indictment) charging the crime adjudged (or a higher degree thereof or a crime necessarily involving or included in the crime of which sentence is imposed), and under the provisions of the Code of Criminal Procedure in New York State, when there is a conviction of a lesser offense than that charged in the indictment, the statute defining the lesser crime serves as the determinant by which the surplus is struck from the indictment.

CHARGES:

Warrant: Act of 1924-No immigration visa.

Lodged:

Act of 1917-Entered without inspection.

Act of 1929-Arrested and deported-No permission to reapply.
Act of 1917-Stowaway.

Act of 1917-Convicted of crime prior to entry-Breaking and enter-
ing; petty larceny.

Act of 1917-Convicted of crime prior to entry-Attempted unlawful entry (1921); burglary (1922); robbery (1922); entry with intent to steal (1924); unlawful entry (1931).

Act of 1917-Admits crime prior to entry-Unlawfully entering a building (1931); petit larceny (1936).

BEFORE THE BOARD

Discussion: This is an appeal from an order entered by the Assistant Commissioner on August 9, 1950, directing the respondent's deportation to Italy on the charges stated above. The respondent has filed exceptions to the order and requests that he be permitted to remain permanently in the United States.