Laredo-Miranda v. Immigration and Naturalization Service., LAREDO-MIRANDA

• Decision Date: 13 July 1977
• Docket Number: LAREDO-MIRANDA,No. 76-3008,76-3008
• Citation: 555 F.2d 1242
• Parties: Jesus Manuel, a/k/a Raul Laredo-Miranda, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE etc., et al., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1242

555 F.2d 1242

Jesus Manuel LAREDO-MIRANDA, a/k/a Raul Laredo-Miranda, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE etc., et al., Respondents.

No. 76-3008.

United States Court of Appeals Fifth Circuit.

July 13, 1977.

Ralph R. Garcia, El Paso, Tex., for petitioner.

Rex L. Young, James P. Morris, Philip Wilens, Attys., Crim. Div., Dept. of Justice, Washington, D.C., for respondents.

Petition for Review of an Order of the Immigration and Naturalization Service (Texas case).

Before WISDOM, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

Petitioner Laredo-Miranda was an 18-year-old resident alien in this country when he assisted five illegal aliens in wading across the Rio Grande River into Texas. He was arrested shortly thereafter and made the subject of deportation proceedings; an immigration judge ordered his deportation, and the Board of Immigration Appeals affirmed. ¹ Laredo-Miranda's petition requires our examination of Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), and its progeny within this Circuit, to determine whether under the circumstances his surreptitious crossing of the river constitutes an "entry" into this country under the Immigration and Nationality Act.

According to his uncontradicted testimony, Laredo-Miranda entered Juarez, Mexico, on August 16, 1975, for the sole purpose of having a meal with his girl friend and her family; he knew that his companion, one Luis Salas, intended to bring a group of aliens back across the border, but did not intend to take part in the actual smuggling. ² While in Juarez, Laredo-Miranda discovered that he had left his alien registration card at his home in Anthony, New Mexico. Rather than take the time and trouble to present himself at the border and wait for someone to bring his card, he decided to wade the river with the group of aliens. Salas recrossed legally at a bridge, and Laredo-Miranda went to the riverbank with the rest of the group. A Border Patrol agent watched from cover as Laredo-Miranda waded completely across the Rio Grande, then returned to the Mexican side, and finally crossed once again into Texas, this time leading the illegal aliens with him. ³ By this time Salas had arrived with his car, and the entire entourage loaded up, only to be stopped a short distance away by Border Patrol officers. ⁴

The Immigration and Naturalization Service (INS) seeks to deport Laredo-Miranda on the authority of § 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1970), which renders deportable any alien who

entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States. . . .

Although he concededly crossed the river "without inspection," Laredo-Miranda is subject to deportation under § 241(a)(2) only if by doing so he "entered" the United States, as the Act defines that term. In § 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13), an otherwise broad definition of "entry" is constricted for application to legally resident aliens:

(A)n alien having a lawful permanent residence in the 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 . . . was not intended or reasonably to be expected by him or his presence in a foreign port or place . . . was not voluntary. . . .

The Supreme Court in Rosenberg v. Fleuti, fleshing out the "intent" exception of § 101(a)(13), held that a resident alien's departure can be considered to have been "intended" only if he possessed "an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." 374 U.S. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1008. Fleuti, a Swiss national and a homosexual, had resided in this country for four years when he visited Ensenda, Mexico, for about two hours; three years later the INS moved for his deportation under §§ 212(a)(9) and 241(a)(1), alleging that he had been excludable at the time of his last "entry" because of his homosexuality. Reversing his deportation order and remanding for further consideration, the Court held 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 alien status and therefore may not subject him to the consequences of an 'entry' into the country on his return. The more civilized application of our immigration laws . . . protects the resident alien from unsuspected risks and unintended consequences of such a wholly innocent action.

Id. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1009. Suggested factors for evaluating whether a departure carries the necessary intent include the length of the visit, whether travel documents were required, and

the purpose of the visit, for 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.

Id. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1008-09. The Court indicated, however, that its list of such factors was not exhaustive:

(T)he operation of these and other possibly relevant factors remains to be developed 'by the gradual process of judicial inclusion and exclusion,' . . . .

Id. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1009.

Building upon Fleuti, a panel of this Circuit held in Yanez-Jacquez v. INS, 440 F.2d 701 (5th Cir. 1971), that a resident alien's departure into Juarez with an ice pick to avenge an earlier assault and robbery was not a "meaningful departure," and thus that Yanez-Jacquez did not "enter" this country when he discovered, after failing to carry out his mission of vengeance, that he had left his alien registration card in the United States, and waded back across the river. His purpose in departing was "less than salutory," id. at 704, but his trip lasted only a few hours, and he had in the past made a number of short trips into Mexico, each time returning to the United States as his apparent intended home. These latter facts outweighed his illicit purpose and required the conclusion that he did not intend to "interrupt in any meaningful manner his status as a permanent resident alien." Id. We later held, in Vargas-Banuelos v. INS, 466 F.2d 1371 (5th Cir. 1972), that a resident alien did not "enter" the United States when, after visiting Mexico for about two days, he accepted money from four aliens to arrange for a third party to meet them in El Paso after their illegal river crossing, in which Vargas-Banuelos apparently was not involved to provide transportation away from the border area, and then recrossed, alone and after presenting himself for inspection at border checkpoints, into the United States. At some point after leaving the United States he formed an intent which was decidedly improper, but the appropriate language in Fleuti indicated that this was not sufficient only his "purpose of leaving the country," 374 U.S. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1008 (emphasis added), rather than his intentions formed after leaving, bore on the determination of whether his departure was "meaningfully interruptive" of his residence in this country:

Under Fleuti and its progeny in this circuit, the failure of the Government to show a criminal purpose prior to petitioner's departure is fatal to its case.

466 F.2d at 1374 (emphasis added). ⁵

Both Yanez-Jacquez and Vargas-Banuelos bear on some facets of the case before us. Yanez-Jacquez established, we believe, that Laredo-Miranda's act of wading the Rio Grande, standing alone, would not render his departure "meaningfully interruptive" of his residence and thus constitute an "entry." ⁶ Vargas-Banuelos establishes that an intent to aid illegal aliens, formed after the resident alien had departed from this country for a short visit, does not make his departure "meaningfully interruptive," at least when his return is through a proper checkpoint rather than by clandestine crossing of the border. In the instant case, however, we face the confluence of one aspect of Vargas-Banuelos (aiding illegal aliens) with another aspect of Yanez-Jacquez (surreptitious crossing), under circumstances more compelling than in either of those cases. Yanez-Jacquez's intentions in crossing into Mexico armed with an ice pick, although scarcely commendable, did little or nothing to contravene either the letter or spirit of the immigration laws; and his recrossing by wading the river accomplished nothing more than avoiding the inconvenience of presenting himself at a checkpoint and waiting several hours for his identification to be fetched. ⁷ Vargas-Banuelos crossed into Mexico and recrossed legally; apparently neither the duration of his visit nor the manner of his return were affected by his extra-territorially acquired intention to commit a crime upon his return, and he committed no act in furtherance of the conspiracy into which he had entered while in Mexico until after his wholly lawful return to the United States.

Laredo-Miranda, on the other hand, was an active and most essential participant in bringing illegal aliens into this country at the precise time of his covert crossing by way of the river. Wading the river, avoiding the scrutiny of border inspection, was crucial to his role as pathfinder for the group. The Supreme Court in Fleuti left room for judicial development of "other possibly relevant factors" in evaluating whether a trip into a foreign country should be considered a meaningful interruption of an alien's status as a permanent resident alien. 374 U.S. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1009. We can...