Matter of Vargas-Banuelos, Interim Decision Number 2109
| Citation | 13 I&N Dec. 810 |
| Decision Date | 06 December 1971 |
| Docket Number | A-13532199,Interim Decision Number 2109 |
| Parties | MATTER OF VARGAS-BANUELOS In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) Respondent, a lawful permanent resident, who initially departed the United States with the intention of making an innocent, casual and brief visit in Mexico but who deviated from this intention and embarked upon a course of conduct contrary to a policy reflected in the immigration laws (aiding and abetting aliens to enter illegally), thereby transformed the innocent character of his trip. Hence, he does not come within the ambit of Rosenberg v. Fleuti, 374 U.S. 449 (1963), and upon his return made an entry upon which to predicate a ground of deportation. [Yanez-Jacquez v. INS, 440 F.2d 701 (C.A. 5, 1971), distinguished.]
CHARGE:
Order: Act of 1952 — Section 241(a)(13) [8 U.S.C. 1251(a)(13)] — Alien who prior to entry, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
ON BEHALF OF RESPONDENT: Karl Friedman, Esquire, American Bank of Commerce Bldg. Suite 405 El Paso, Texas, 79901 (Brief filed)
ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney, William E. Weinert, Trial Attorney, (Brief filed)
The special inquiry officer found the respondent deportable as charged in his decision of November 2, 1970. The special inquiry officer denied the privilege of voluntary departure as a matter of law. From the special inquiry officer's order the respondent appeals. His appeal will be dismissed.
The record relates to a 41-year-old married male alien, a native and citizen of Mexico, who was admitted to the United States as a lawful permanent resident in 1963. He is charged with having entered the United States on or about April 4, 1970. The respondent's testimony was that he went to Mexico on or about April 2, 1970 to offer condolences to the family of a deceased cousin. On or about April 3, 1970 he was approached by four aliens who wished to enter the United States illegally. The respondent accepted money from them and made certain arrangements for them. In connection with this the respondent was found guilty, upon his plea of guilty, in the United States District Court, Western District of Texas, El Paso Division, on four counts of violation of 8 U.S.C. 1325 and 18 U.S.C. 2. These violations clearly bring him within the purview of section 241(a)(13) of the Immigration and Nationality Act.
Section 241(a)(13) of the Immigration and Nationality Act makes deportable any alien who:
prior to, or at the time of entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted or aided any other alien to enter or to try to enter the United States in violation of law.
The Order to Show Cause indicates that the respondent was charged with a violation for conduct occurring prior to entry. The main issue raised by this appeal is whether an entry occurred on or about April 4, 1970.
Counsel claims that the special inquiry officer made three erroneous holdings: (1) that the respondent made an "entry" in April of 1970, (2) that the respondent aided and abetted the aliens in their actual entry into the United States, and (3) that the respondent received gain. We shall consider the last two points first.
The contention that there was error in holding that the respondnet aided and abetted aliens in their actual entry into the United States is without merit. Counsel evidently takes the position that section 241(a)(13) applies only to an alien who has physically brought another alien into the United States. The language of the statute is not that narrow. At oral argument counsel urged that no crime would have been committed had the aliens never entered. This argument is mistaken for two reasons: (1) it is not the fact of a criminal conviction that renders an alien deportable under section 241(a)(13), and (2) the statute covers activity amounting to aiding and abetting another alien to try to enter, as well as to enter. In the present case the special inquiry officer found that the respondent, scheming with the aliens, instructed them in where to cross the border undetected, told them where to go once they reached the United States, and telephoned a woman accomplice in Denver, Colorado and had her drive to El Paso, Texas to meet the aliens in the respondent's pickup truck. We agree with the special inquiry officer who found that respondent's deportability under the charge was established by clear, convincing and unequivocal evidence. The special inquiry officer was also correct in accepting a certified copy of the record of conviction to support the Government's charge.
The contention that the respondent did not receive gain is likewise without basis. As the special inquiry officer pointed out, there was the admission of the respondent, along with other evidence to prove the element of gain. We agree with the special inquiry officer that the element of gain has been proved by clear, convincing and unequivocal evidence.
Counsel's chief contention is actually a claim that the present case comes within the ambit of the Supreme Court's decision in the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). That is, he would have us accept the proposition that no "entry" occurred in April of 1970 by virtue of the following statement of the Supreme Court in the Fleuti case:
[W]e declare today simply that an innocent, casual and brief excursion by a resident alien outside this country's borders may not have been "intended" as a departure disruptive of his resident status and therefore may not subject him to the consequences of an "entry" into the country on his return.
Counsel bases this contention upon the fact that the respondent testified that the respondent testified that his purpose for making his visit to Mexico was merely to offer condolences to the family of his deceased cousin. Counsel would have us look only to the respondent's intention at the time of departure, disregarding his involvement in alien smuggling which apparently developed only after he had reached Mexico.
The facts in the present case closely parallel those in Matter of Valencia-Barajas, Interim Decision No. 2001 (BIA, 1969), which involved a lawful permanent resident who went to Mexico for the purpose of visiting his parents, but who also knowingly and for gain aided, assisted and abetted aliens to enter the United States illegally. In that case we held that Fleuti did not apply, and that there had been an "entry." In commenting upon the alien's conviction for aiding and abetting the illegal entry of aliens into the United States, we noted that, "This fact could support an inference that his purpose in departing from the United States was to accomplish an object which is contrary to a policy reflected in our immigration laws." We did not expressly base our...
To continue reading
Request your trial