Matter of Sanchez
| Decision Date | 15 January 1980 |
| Docket Number | Interim Decision Number 2751,A-14273169 |
| Parties | MATTER OF SANCHEZ In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 17, 1978, an immigration judge found the respondent deportable as charged, and denied his applications for relief from deportation under sections 212(c), 212(h), and 245 of the Immigration and Nationality Act, 8 U.S.C. 1182(c), 1182(h) and 1255. The respondent appealed. The record will be remanded.
The respondent, a 29-year-old native and citizen of Mexico, entered the United States as a lawful permanent resident on April 14, 1965. He resided in the United States, attending school and living with family friends, until 1970. In 1970, the respondent obtained employment with a brokerage firm in San Ysidro, California. Unable at this time to maintain a residence in the United States for economic reasons, the respondent moved back to Mexico, where he could live with his parents rent-free. The respondent had on September 19, 1967, executed a commuter questionnaire (SW-426), and his alien registration receipt card (Form I-151) was modified to designate him as a commuter. The respondent maintained a commuter status from 1970 to 1976, entering the United States each day for work, and recrossing back to Mexico in the evenings. In September of 1976, the respondent, with his family, began residing in the United States.
On October 27, 1976, after a brief visit to Mexico, the respondent was arrested at the San Ysidro border, and charged with mail fraud under 18 U.S.C. 1341. The respondent was taken into custody, detained overnight, and released the next day pending his trial on the mail fraud charges. The respondent pleaded guilty to these charges on July 18, 1977, and he was sentenced to confinement for 1 year and 1 day. This sentence was suspended. Deportation proceedings were initiated against the respondent on September 21, 1977, when an Order to Show Cause was issued against him.
At a deportation hearing begun in October of 1977, and completed in February of 1978, the respondent was found deportable under section 241(a)(4) of the Act, 8 U.S.C. 1251(a)(4), as an alien convicted of a crime involving moral turpitude within 5 years of entry, and sentenced to confinement therefor for a year or more. All applications for discretionary relief were denied by the immigration judge.
On appeal, the respondent makes several arguments. To begin with, he contends that the immigration judge's finding of deportability was incorrect, because there had been no conviction of a crime involving moral turpitude within 5 years of his entry as a lawful permanent resident. He then argues that he is eligible for a waiver under section 212(c) of the Act because of his alleged 7 years of continuous domicile in the United States, that he is eligible for a 212(h) waiver, as that relief "should be available in a deportation hearing," and that he is eligible for adjustment of status under section 245 of the Act. Finally, the respondent argues that he should properly have been placed in exclusion proceedings, rather than in deportation proceedings, "since he had not effected an `entry' into the United States." We will consider these arguments separately.
The immigration judge's finding of deportability was correct. Section 241(a)(4), under which the respondent was charged, and found deportable, provides for the deportation of "any alien" who is "convicted of a crime involving moral turpitude committed within 5 years after entry." The statute does not specify that the crime must have been committed within 5 years of a lawful permanent resident's original entry as an immigrant. A crime committed within 5 years of any entry made by an alien can form the basis for deportation under section 241(a)(4). See Steinsvik v. INS, 603 F.2d 225 (9 Cir.1979). In the present case, the respondent's mail fraud began on an unknown date, and continued to July 1976 (see Ex. 3). From 1970 to September of 1976, the respondent held the status of commuter, and as such made an "entry" into the United States nearly every day. Matter of Rico, 16 I&N Dec. 181 (BIA 1977); Matter of Diaz, 15 I&N Dec. 488 (BIA 1975); Matter of Hoffman-Arvayo, 13 I&N Dec. 750 (BIA 1971). Hence, there can be no question that the respondent committed the crime of mail fraud within 5 years of an entry into the United States. As he was sentenced to imprisonment for a year or more for this crime, he is deportable under section 241(a)(4). The fact that the respondent's sentence was suspended does not change this result. Matter of M----, 6 I&N Dec. 346 (BIA 1954). See also Matter of De la Cruz, 15 I&N Dec. 616 (BIA 1976).
We also agree with the immigration judge that the respondent was properly in deportation proceedings, rather than exclusion proceedings. The respondent's contention that he has made no "entry" since his conviction, so as to be amenable to a deportation hearing, is wholly without merit. It is true that an alien makes an "entry" for immigration purposes only when he comes into the United States "free from actual or constructive restraint." Matter of Yam, 16 I&N Dec. 535 (BIA 1978). See also U.S. ex rel. Lam Fo Sang v. Esperdy, 210 F.Supp. 786 (S.D.N.Y.1962); Matter of V---- Q----, 9 I&N Dec. 78 (BIA 1960). Here, the respondent came into the United States on October 27, 1976, under custody, and so no entry was made at that time. However, when he was released the following day without bond, and only on the condition that he appear for his trial on the mail fraud charges, an entry was made. He was then free from any legal restraints imposed upon him by the immigration laws. See Matter of V---- Q----, supra. Moreover, the respondent testified that he made many brief trips to Mexico after he was apprehended in October of 1976, as well as after his conviction in July 1977. See transcript at 41-42. He reentered the United States and was inspected after each of his departures to Mexico. Given these undisputed facts, no serious claim can be made that the respondent should be in exclusion proceedings.
With regard to the respondent's application for discretionary relief under section 212(c) of the Act, we find, as did the immigration judge, that the respondent is ineligible for this waiver. Section 212(c) provides for a waiver of certain grounds of excludability for lawful permanent residents who temporarily proceed abroad voluntarily, and not under an order of deportation, and who are returning to a "lawful unrelinquished domicile of 7 consecutive years." The respondent argues that he satisfies the 7 years' domicile requirement because he never really abandoned his United States domicile during the years he was a commuter. We cannot agree.
The word "domicile" in section 212(c) refers to the legal concept of being a domiciliary of the United States. See Matter of Garcia-Quintero, 15 I & N. Dec. 244 (BIA 1975). Thus, in order for an alien to establish "domicile" in the United States, he must be physically present here and have the intention of making the United States his home for the indefinite future. Gilbert v. David, 235 U.S. 561, 569-570 (1915). Once a domicile is acquired, it is retained until such time as a domicile is established elsewhere. Garner v. Pearson, 374 F.Supp. 580, 590 (M.D.Fla.1973). The fact that an alien has the status of an immigrant...
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