Matter of Farinas

• Decision Date: 15 September 1967
• Docket Number: Interim Decision Number 1797,A-4699844.
• Parties: MATTER OF FARINAS. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

12 I&N Dec. 467

MATTER OF FARINAS.

In Deportation Proceedings.

Interim Decision Number 1797

A-4699844.

Board of Immigration Appeals.

Decided by Board September 15, 1967.

A gross miscarriage of justice occurred where respondent, an unrepresented alien, was ordered deported in November 1946 but from November 1947 to May 15, 1950, the date of his actual deportation, such decision could not have withstood judicial attack under the interpretation of the prevailing law as laid down by the Supreme Court in Delgadillo v. Carmichael, 322 U.S. 388, and other cases; hence, respondent having been granted permission to reapply and waivers of the grounds of excludability, the present proceedings under section 242(f) of the Immigration and Nationality Act are terminated.

CHARGE:

Order: Act of 1952 — Sections 241(a)(2) [8 U.S.C. 1251(a)(2)] and 242(f) [8 U.S.C. 1252(f)] — Previously deported on ground enumerated in section 242(e).

ON BEHALF OF RESPONDENT: Charles J. Wong, Esquire 755 Commercial Street San Francisco, Calif. 94108 (Brief filed)

ON BEHALF OF SERVICE: Stephen M. Suffin Trial Attorney (Brief filed)

Respondent appeals from the decision of the special inquiry officer finding him deportable as charged, and granting him voluntary departure with an alternate order of deportation to the Philippines.

Respondent is a 64-year-old married male alien, a native and citizen of the Philippines, who last entered the United States at Honolulu, Hawaii on or about September 9, 1966 as a visitor for pleasure. In earlier proceedings he testified that he first entered the United States at Hawaii on June 14, 1922 and arrived in the continental United States at San Pedro, California in either December 1923 or January 1924. He remained in this country continuously from that time, with the exception of occasional brief crossings into Mexico, the last one being in 1929, until he was deported from the United States in May 1950.

In November 1935, respondent was charged, in the Superior Court, San Joaquin, California, with burglary in the first degree. After proceedings in which he was represented by counsel, he was convicted of burglary in the second degree (a crime involving moral turpitude, cf. Matter of V---- T----, 2 I. & N. Dec. 213), and on January 25, 1936 was sentenced to imprisonment for eight years. With time off for good behavior, etc., he was discharged in 1941.

After his release, respondent worked for the Libby Company which sent him to Alaska as one of a group of cannery workers in the summers of 1941, 1942, 1943 and 1944. The company made all arrangements for their transportation from California to Alaska and back, and it was respondent's recollection that they went sometimes by airplane and sometimes by boat. During the 1942 trip north, the boat stopped in the port of Vancouver, B.C., Canada, and the workers were transferred to another boat which took them the rest of the way to Alaska. Respondent was ashore for about an hour, for the purposes of the transfer, but there is no showing that he had anything to do with, or knew anything of, the arrangements for the stopover and transfer in the Canadian port. Immigration Service records show him as being thereafter admitted at Ketchikan, Alaska on June 20, 1942.

In September 1944, a two-count information was filed against respondent in the Superior Court, King County, State of Washington, charging abduction of a female under 18 for the purpose of sexual intercourse or marriage without the consent of her legal guardian, and carnal knowledge and abuse of a female under the age of 18. He was represented by counsel and pleaded guilty to the first charge on December 5, 1944; the second was dismissed on December 22, 1944. He was sentenced to imprisonment for a maximum term of not more than 10 years, and started serving his sentence.

Deportation proceedings were instituted in early 1945. Respondent was charged with being deportable as one excludable at the time of his June 1942 entry, under the Act of February 5, 1917, because of prior conviction of crime involving moral turpitude (burglary, second degree), and with being deportable under the same Act because he had been sentenced to imprisonment for a year or more after conviction of a crime involving moral turpitude committed within five years after entry (abduction).

The hearings were held, without interpreter, at the State Penitentiary in Walla Walla, Washington. Respondent, when asked if he wished counsel, stated that he did and was given a two-week adjournment. At the continued hearing, on September 12, 1945, respondent testified that he had not yet secured counsel. The special inquiry officer declared that the hearing would proceed and in the event respondent should later secure counsel, his attorney could contact the Immigration Service and would be afforded an opportunity to review the proceedings to that date.

At the hearing, it was clearly established that respondent was a native and citizen of the Philippines; that he had touched at a Canadian port in 1942 when the company transportation provided for a transfer of boats and he had gone ashore for that purpose; and that he was the person referred to in the record showing Mariano Farinas to have been admitted at Ketchikan, Alaska on June 20, 1942. He identified as relating to him the two convictions referred to above and sought to explain the circumstances leading to the second conviction, but was advised this was not relevant. He was advised that he would be served with a copy of the proposed findings of fact, conclusions of law and order, and advised of his appeal rights. He was served on November 23, 1945, but did not file exceptions within the specified period. Both of the warrant charges were sustained, and in ordering him deported to the Philippines, it was specifically recommended that execution of the warrant of deportation be deferred until such time as respondent was released from imprisonment.

The Commissioner of Immigration, on review, amended the order only to the extent of holding that since respondent had been inadmissible for a cause existing at the time of entry, deportation was to be at the expense of the transportation company. The case then came before the Board, which on November 12, 1946, rendered a decision holding respondent deportable on the first charge only. The Board was of the opinion that it was possible respondent had taken the girl for the purpose of marriage, and that moral turpitude might not inhere in abduction for that purpose. Since it was sustaining the first charge, the Board held it would not pass on whether respondent's 1944 conviction was for a crime involving moral turpitude. It was affirmed that execution of the warrant of deportation should be deferred until respondent was released from prison.

Respondent finished serving his sentence in 1950 and was deported to the Philippines on May 15, 1950. He never returned to the United States until his entry of September 9, 1966.

At the present hearing, at which respondent was represented by counsel and communication was through an official interpreter, in the Ilocano dialect, the Government rested after introducing the warrant of deportation, showing execution on May 15, 1950 via the USNS Simon B. Buckner. Although making no claim that permission to reapply for admission had ever been applied for or received, respondent denied deportability, intending that the 1950 deportation was improper and invalid. He was urged that he had not made an entry in June 1942 and therefore could not be found deportable for crime prior to entry, and it was further contended that at the time of respondent's original entry and at all times until 1946, he was a United States national and that the Act of 1917 therefore did not apply to him.

At the close of the hearing, the special inquiry officer rendered an oral decision finding respondent deportable on the charge contained in the order to show cause. It was bottomed upon his holding that the arrival in Alaska in June 1942 had properly been deemed an entry. He stated:

* * * Counsel, presumably referring to Rosenberg v. Fleuti, 374 U.S. 449, contends that this was not an entry within the meaning of the immigration laws. He also contends that as the respondent was then a national of the United States, he was not deportable.

At the time of respondent's deportation, Fleuti had not been decided by the Supreme Court. Under the law as it was then interpreted, the respondent had made an entry into the United States after his stop at Vancouver, B.C., Canada. * * *

It may well be that if the respondent had not been deported and the case were now coming before me, I would find that he had not made an entry in 1942. However, collateral attacks on the validity of a deportation order after deportation had taken place, based on changes in judicial and administrative decisions interpreting the law, are permitted only where there is evidence of a gross miscarriage of justice. No evidence of such miscarriage of justice has been adduced, merely a showing that the law is now interpreted differently. * * *

The Service, in its brief supporting the decision of the special inquiry officer, makes no claim that the earlier decision was in accordance with prevailing law as it was interpreted at the time of respondent's deportation, but urges that the deportation order is not subject to collateral attack because on November 12, 1946 (the date of the Board's order, which was three and one-half years before the actual deportation) respondent was clearly subject to deportation under the prevailing judicial and administrative determinations.

On appeal, counsel repeats the two contentions made at the hearing. On the "entry" question, he relies not on Rosenberg v. Fleuti, as assumed by the special inquiry officer, but on Delgadillo v. Carmichael, 332 U.S. 388 (November 10, 1947) and DiPasquale v. Karnuth, 158 F.2d 878 (C.A. 2, January 11, 1947), two cases closer in facts...