Matter of B----
| Decision Date | 15 February 1961 |
| Docket Number | A-5504324. |
| Citation | 9 I&N Dec. 211 |
| Parties | MATTER OF B----. In DEPORTATION Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
DISCUSSION: On May 23, 1960, this Board dismissed the respondent's appeal from the order of the special inquiry officer requiring his deportation on the charges stated above. The respondent sought judicial review of the Board's order. On November 3, 1960, the United States District Court, District of Connecticut, entered an order remanding the case to the Board to accord the respondent "the privilege of being represented by counsel of his choosing throughout proceedings on appeal before that Board" (Barrese v. Ryan, 189 F.Supp. 449). The court did not go into the merits of the charges.
On November 29, 1960, the Board notified counsel for the respondent that the case had been calendared for oral argument. Counsel did not appear for oral argument but submitted a written brief in support of the respondent's appeal. In this brief, issue is taken with each charge. The Service did not appear at oral argument and makes no representations.
The charge based on section 241(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(4)) provides for the deportation of an alien "convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." The convictions may come from a single trial, and confinement is not necessary. Counsel argues that the crimes arose out of a single scheme and cannot be the basis for deportation.
The respondent last entered the United States in October 1955. On October 8, 1958, the respondent was convicted in the United States District Court at New Haven, Connecticut, on a plea of guilty, on two counts for violation of 26 U.S.C. 3253 (now 26 U.S.C. 5691, 7301(a)) for having carried on the business of a retail liquor dealer without having paid the necessary tax with intent to defraud the United States. Both violations arose out of the sale of liquor in the respondent's place of business in Bridgeport, Connecticut. The first count concerned a violation which occurred on or about the 14th day of October 1951, and the second count, one which occurred on or about the 6th day of April 1952. (A third count concerning a violation on or about April 11, 1952, was dismissed.)1 Sentence on each count was to imprisonment for 15 months and a fine of $500; the sentences to imprisonment were to run consecutively and the fines were cumulative. Counsel contends that the two convictions arose out of a single scheme because the respondent was convicted for failing to pay a $25 federal occupational per annum tax in two successive years of continuous operation of the same business. In finding that the crimes had not arisen out of a single scheme of criminal misconduct, the Board cited Matter of Z----, 8-170, which was overruled in Zito v. Moutal, 174 F.Supp. 531 (N.D.Ill., 1959). However, we see no reason to change our conclusion that a single scheme does not exist here. The crimes before us were not the result of an overall plan but of two separate plans, and to find a single scheme the acts must be committed pursuant to an overall plan (Chanan Din Khan v. Barber, 147 F.Supp. 771 (N.D.Calif., 1957), aff'd 253 F.2d 547 (C.A. 9, 1958), cert. den. 357 U.S. 920; Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959)). In the instant case, the violations of law are not shown to have occurred under one overall plan; in fact, the record affirmatively establishes the contrary. The record contains the respondent's testimony that after his conviction on October 14, 1951, by local authorities for violating the liquor laws, he had stopped selling liquor in the hope that he could make a living without engaging in such activity. It was only after a trial period during which he found that he could not get restaurant business without making liquor available to customers that he started again. It is clear then that the second violation of law occurred not under the first plan of illegal conduct, for that had terminated after the first arrest and conviction; the second violation occurred under a new plan to violate the law — a plan formulated after society had brought it home to him by an arrest, conviction, and fine, that his conduct was improper and would not be tolerated. A single scheme did not exist here (Chanan Din Khan v. Barber, supra).
The crimes in question involve an intent to defraud; this establishes that moral turpitude is involved (United States ex rel. Carrollo v. Bode, 204 F.2d 220 (C.A. 8, 1953), cert. den. 346 U.S. 857; Jordan v. DeGeorge, 341 U.S. 223).
We shall now deal with the documentary charge. The respondent last entered the United States on about October 6, 1955. We sustained the documentary charge. We held that the respondent needed a visa to enter and that he did not have one. Counsel contends that the respondent did not need a visa to enter the United States; that as a "returning resident" he needed only a border-crossing card; that he had such a card in his possession; and that the Government has not sustained its burden of establishing that the respondent had entered illegally.
A "returning resident" is entitled to enter the United States without a visa under certain circumstances (section 211(b), Immigration and Nationality Act, 8 U.S.C. 1181(b); 8 CFR 211.2(c)(1), 8 CFR 211.2(c)(2), 8 CFR 211.2(c)(6) ()). The respondent would have been entitled to reenter the United States as a "returning resident" (1) if he had been originally lawfully admitted for permanent residence, (2) if he had that status when he departed, (3) if he departed from the United States with the intention of returning, (4) if he had not abandoned this intention, and (5) if he returned from a temporary visit abroad (United States ex rel. Alther v. McCandless, 46 F.2d 288 (C.A. 3, 1931; Sercerchi v. Ward, 27 F.Supp. 437 (D.C. Mass., 1939)).
This record fails to satisfy the first requirement (that the alien have been lawfully admitted for permanent residence); however, since this aspect of the case was not made an issue and was not completely developed at the hearing, we cannot rest our decision on this fact. We shall assume for the purpose of this discussion that the respondent had been lawfully admitted at some time and would have been entitled to reenter the United States to resume his residence if at the time of last application he was, in fact, a "returning resident." (The respondent made several visits to Canada and whether or not he reentered legally on these occasions we need not explore.) We shall concern ourselves with whether the respondent was returning from a temporary visit abroad. The test employed will be that put to use in Alther, supra.
"Without attempting a complete definition of `a temporary visit,' we may say that we think the intention of the departing immigrant must be to return within a period relatively short, fixed by some earlier event." It will be noted that under this rule the animus revertendi must exist as a positive element. A mere absence of intention to remain abroad permanently will not preserve the alien's nonquota status. The burden of proof is still with the government and must be met by the production of substantial evidence, but if it appear that he left with no definite intention, either of staying permanently or of returning, merely planning to let future events determine his course, his stay would not be a temporary visit and the statute would automatically place him in the quota class. (pp. 290-291)
Using this test, we find that the record establishes that if the respondent left the United States with a definite intention of returning, it was abandoned.
We come now to the pertinent facts on this issue. The respondent has given conflicting testimony about his trip to Canada: part of the testimony is found in this deportation hearing, the rest in a Canadian deportation proceeding. In this proceeding, the respondent testified he had lived in the United States from about 1916; that following his last arrest for a liquor violation in Bridgeport, Connecticut (1952), he closed his place and after looking for a livelihood a few months moved to New York where he remained for a few months (or a year and one-half) looking for a business, but could find nothing; that he then went to Canada to visit a sister who had come from Italy; that he stayed no longer than 30 days in Canada, returning each time to stay with friends or at a hotel in Nevada; that in Canada he engaged in no work but helped his brother-in-law who ran a gambling club in Canada; that he received no regular salary and had no interest...
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