Matter of Valencia-Barajas

• Decision Date: 22 August 1969
• Docket Number: A-12986073,Interim Decision Number 2001
• Citation: 13 I&N Dec. 369
• Parties: MATTER OF VALENCIA-BARAJAS In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

13 I&N Dec. 369

MATTER OF VALENCIA-BARAJAS

In Deportation Proceedings

Interim Decision Number 2001

A-12986073

Board of Immigration Appeals.

Decided by Board August 22, 1969

A lawful permanent resident alien who during a short trip to Mexico engaged in activities considered criminal by the Immigration and Nationality Act, namely, knowingly and for gain assisted, abetted and aided 2 citizens of Mexico to illegally enter the United States, did not make an innocent, casual and brief trip within the meaning of Rosenberg v. Fleuti, 374 U.S. 449, and, hence, upon his return made an entry within the purview of section 101(a)(13) of the Act upon which to predicate a ground of deportation.

CHARGE:

Order: Act of 1952—Section 241(a)(13) [8 U.S.C. 1251(a)(13)] — Prior to entry, knowingly and for gain, encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of the law.

The respondent, an unmarried male alien, 24 years of age, a native and citizen of Mexico, has been found deportable under section 241(a)(13) in that prior to his entry at San Ysidro, California on February 23, 1968, he knowingly and for gain, encouraged, induced, assisted, abetted or aided two Mexican aliens to enter the United States in violation of the immigration laws. He appeals from an order entered by the special inquiry officer on October 28, 1968 directing his deportation to Mexico on the charge stated in the order to show cause.

The respondent was admitted to the United States as an immigrant at the port of San Ysidro, California on June 28, 1962. He denies the allegations set forth in the order to show cause served upon him on June 24, 1968 that he was admitted to the United States as a returning resident alien on or about February 23, 1968; that prior to this entry, on or about February 20, 1968, he entered into an agreement in Tijuana, Mexico with two aliens citizens of Mexico, to assist them to illegally enter the United States for the payment of $100 from each of them upon their arrival in Los Angeles, California; that he knew that the aliens were not in possession of any document entitling them to enter the United States; that, on or about February 22, 1968, he did assist the two aliens to enter the United States by transporting them in his automobile from a location in Tijuana to a point near the international border; that the two aliens did enter the United States without inspection; and that, on or about February 23, 1968, he placed the aliens in the trunk of his automobile and then proceeded toward their interior destination.

The respondent testified that he was in Tijuana, Mexico on February 21 or 22, 1968 to visit his parents. He further testified that in the late afternoon of February 23, 1968 he was apprehended by the border patrol who found two aliens hidden in the trunk of his car, and that he had not hidden them and was unaware of their presence. The trial attorney in support of the charge presented a certified copy of the respondent's conviction in the United States District Court for the Southern District of California (Ex. 6), which establishes that on July 8, 1968, the respondent was convicted of the offense of violating Title 8, section 1324(a)(4) for inducing the illegal entry of aliens, and Title 8, section 1324(a)(2) for illegal transportation of aliens. The indictment contains four counts, charging the respondent with inducing the illegal entry and the illegal transportation of two aliens, to wit, Roberto Andrade and Donaciano Andrade. The respondent was convicted on all four counts and sentenced to imprisonment for two years. He served six months and was placed on probation for the remainder of his sentence.

The record contains the affidavits of the two smuggled aliens (Exs. 2, 2A and 4). They also testified during the hearing accorded the respondent on July 1, 1968 (pp. 5 and 11). They testified that they were approached by the respondent in Tijuana, Mexico on or about the 21st of February 1968; that the respondent promised to assist them to enter the United States in payment of $100 from each of them; that in furtherance of their agreement, he escorted them to the international border on the night of February 22, from which point they were guided into the United States by a third person, who secreted them in an empty house at a ranch; that, on the following day, the respondent brought them some food, and later that afternoon hid them in the trunk compartment of his car, where they were found by the border patrol while proceeding to the interior of the United States.

There is clear, unequivocal and convincing evidence that the respondent "knowingly and for gain" did assist, abet and aid two citizens of Mexico to enter the United States in violation of law. Section 241(a)(13) provides, however, that the substantive offense of assisting an alien "knowingly and for gain" to enter the United States in violation of law must occur "prior to, or at the time of entry, or at any time within five years after entry." The Mexican aliens were smuggled into the United States on February 22, 1968, more than five years after the respondent's entry for permanent residence on June 28, 1962. This factor raises the issue as to whether the respondent, on the date of his last return to the...