Lozano-Giron v. Immigration and Naturalization Service

• Decision Date: 04 December 1974
• Docket Number: No. 74-1260,P,LOZANO-GIRO,74-1260
• Parties: Uldaricoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1073

506 F.2d 1073

Uldarico LOZANO-GIRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 74-1260.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 12, 1974.

Decided Dec. 4, 1974.

Nathan T. Notkin, Chicago, Ill., for petitioner.

James R. Thompson, U.S. Atty., Gary L. Starkman, Asst. U.S. Atty., Chicago, Ill., John L. Murphy, Chief, and Mary Jo Grotenrath, Atty., Dept. of Justice, Washington, D.C., for respondent.

Before CASTLE, Senior Circuit Judge and STEVENS and SPRECHER, Circuit judges.

SPRECHER, Circuit Judge.

The primary issue is whether a permanent resident alien's return to the United States from a 27-day trip to Colombia constituted an 'entry' within the meaning of section 101(a)(13) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1101(a)(13). ¹

I

The petitioner is a 31 year old single male alien, a native and citizen of Colombia who was admitted to the United States for permanent residence at Miami, Florida, on October 25, 1963. He lived in the United States continuously since his entry in 1963 except for three visits to see his parents in Colombia: the first in April, 1970, for three months; the second in November, 1971, for three months; and the third from June 30, 1972 to July 27, 1972, when he returned to Miami as a returning resident. His purpose in going to Colombia for the third time was in order to get married, but his girl friend changed her mind and declined to marry him. He had with him on his trip in excess of $2,100 in currency.

The petitioner testified that inasmuch as he could not take Colombian currency out of that country, except for a nominal amount, and inasmuch as Colombian banks would not exchange Colombian currency for United States money, he had asked a friend to send him anyone who would exchange currencies with him. While he was in a dimly lit bar, a man approached him and agreed to take petitioner's 42,000 Colombian pesos (worth $2,100) plus petitioner's wrist watch, ring and a radio, in exchange for $2,400 in United States currency. The exchange was made and petitioner placed the $2,400 in a briefcase, which his mother put away in her home.

On July 27, 1972, petitioner took the briefcase with the money on the airplane with him as he departed for Miami, Florida. While on the plane, he decided to have a drink and was about to pay for it with a ten dollar bill from the briefcase when he noticed that it looked 'kind of funny.' Becoming nervous he went to the washroom and after satisfying himself that the entire $2,400 was counterfeit, he hid the money in his trouser pocket, shirt pocket and inside his belt. He testified that his intention at that time was to go to the Colombian consul when he reached Miami and seek his advice.

When petitioner reached Miami and went through customs, he was asked by a customs officer to pay a duty on a bottle of liquor. He asked permission to go to an international bank in the terminal in order to exchange his remaining 180 Colombian pesos into dollars. As he was about to leave, another customs officer stopped him, examined him and found the $2,400 in counterfeit money.

Petitioner was arrested and indicted. Upon his plea of guilty he was convicted in the United States District Court for the Southern District of Florida on November 6, 1972 of possessing, with intent to defraud, 204 counterfeit obligations of the United States in violation of 18 U.S.C. 472. He was sentenced to 18 months' imprisonment and he served his sentence.

On May 8, 1973, petitioner was served with an order to show cause why he should not be deported from the United States. After holding a hearing where petitioner was represented by counsel of his choice, the Immigration Judge on July 12, 1973, ordered petitioner deported from the United States to Colombia, pursuant to section 241(a)(4) of the Immigration and Nationality Act in that he had been convicted of a crime involving moral turpitude committed within five years after entry and had been sentenced to confinement for a year or more. 8 U.S.C. 1251(a)(4). ²

On January 31, 1974, the Board of Immigration Appeals dismissed the petitioner's appeal. The case comes here on petition for review.

II

Petitioner's first argument was that he was not convicted of 'a crime involving moral turpitude.'

He was indicted for possessing counterfeit obligations of the United States 'with intent to defraud' in violation of 18 U.S.C. 472. ³ Upon his plea of guilty, he was convicted of 'possession of counterfeit obligations of the United States, knowing same to be counterfeit in violation of Title 18, United States Code, Section 472, as charged . . ..'

In Jordan v. DeGeorge, 341 U.S. 223, 227-28, 232, 71 S.Ct. 703, 706, 708, 95 L.Ed. 886 (1951), the Supreme Court said:

Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude. In the construction of the specific section of the Statute before us, ⁴ a court of appeals has stated that fraud has ordinarily been the test to determine whether crimes not of the gravest character involve moral turpitude . . ..

In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude . . .. In the state courts, crimes involving fraud have universally been held to involve moral turpitude. Fraud is the touchstone by which this case should be judged. The phrase 'crime involving moral turpitude' has without exception been construed to embrace fraudulent conduct.

Intent to defraud is an element not only of the crime of bringing counterfeit obligations into the United States, to which petitioner would restrict that element, but also of the crime to which petitioner pleaded guilty-- possession of counterfeit obligations. United States v. Wilkerson, 469 F.2d 963, 969 (5th Cir. 1972) cert. denied, 410 U.S. 986, 93 S.Ct. 1515, 36 L.Ed.2d 184 (1973); United States v. Leitner, 312 F.2d 107 (2d Cir. 1963). Thus, having pleaded guilty to a crime in which fraud is an element, petitioner was in fact convicted of 'a crime involving moral turpitude.'

III

Petitioner's more substantial contention is that his return to the United States after a 27-day trip to Colombia did not constitute an 'entry' within the meaning of 8 U.S.C. 1101(a)(13). ⁵

Entry means 'any coming of an alien into the United States, from a foreign port . . ..' The Immigration and Nationality Act of 1952 added an exception: 'an alien having a lawful permanent residence in the United States' as did the petitioner here 'shall not be regarded as making an entry . . . if . . . his departure to a foreign port . . . was not intended or reasonably to be expected by him or his presence in a foreign port . . . was not voluntary.' 8 U.S.C. 1101(a)(13).

The 1952 exception was a 'codifying' of several cases decided shortly prior thereto: ⁶

In Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947), there was no 'entry' when an alien seaman, on an American ship bound from Los Angeles to New York which was torpedoed, was rescued and taken to Havana Cuba, to recuperate for a week before being returned to the United States at Miami, Florida.

In Di Pasquale v. Karnuth, 158 F.2d 878 (2d Cir. 1947), there was no entry when an alien went by sleeping car from Buffalo to Detroit upon a railroad whose route lay partially in Canada and who was asleep during the time the train was outside the United States and woke up in Detroit.

In Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947), there was no entry when an alien returning from seasonal cannery work in Alaska to Seattle, Washington, was on a vessel which made an unscheduled stop of three hours at Victoria, British Columbia.

In Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948), there was no entry where an alien returning from wartime service with the United States Maritime Service was aboard a vessel which had stopped at many foreign ports pursuant to Navy orders and finally reached the United States.

These cases made it fairly clear as to what was intended by the 1952 statutory language of a 'departure to a foreign port . . . not intended or reasonably to be expected' or 'presence in a foreign port . . . (which was) not voluntary.'

In Rosenberg v. Fleuti, 374 U.S. 449 (1963), 83 S.Ct. 1804, 10 L.Ed.2d 1000, an exceptionally difficult situation had arisen. An alien homosexual entered the United States for permanent residence on October 9, 1952, a time when homosexuality did not render immigrants excludable. On December 24, 1952, the provision of the Immigration and Nationality Act of 1952 making 'aliens afflicted with psychopathic personality, or sexual deviation, or mental defect' excludable, became effective (8 U.S.C. 1182(a)(4)). ⁷ After being a permanent resident for about four years, the alien visited Mexico in 1956 for 'about a couple of hours.' His return was considered an 'entry' and he was ordered deported. The Court of Appeals for the Ninth Circuit set aside the deportation order on the ground that section 1182(a)(4) was unconstitutionally vague as applied to Fleuti. In a five-to-four decision, the Supreme Court held that the constitutional question could be avoided if Fleuti's return to the United States was not in fact an 'entry;' ⁸ that Congress in 1952 intended 'to ameliorate the severe effects of the strict 'entry' doctrine;' ⁹ and that the exception in 8 U.S.C. 1101(a)(13) should be construed as constituting an 'entry' only following 'an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence.' ¹⁰ The Court then remanded the case to determine whether Fleuti's short trip to Mexico was taken with a meaningfully interruptive intent.

The Court suggested three major factors relevant to whether the requisite intent can be inferred: ¹¹ (1) the length of time the alien is absent from the United States; (2) the purpose of the visit to the...