Matter of Yellowquill
| Decision Date | 01 August 1978 |
| Docket Number | Interim Decision #2664,A-22852501 |
| Citation | 16 I&N Dec. 576 |
| Parties | MATTER OF YELLOWQUILL In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from a decision of an immigration judge rendered on February 24, 1978. In his decision the immigration judge found the respondent deportable as charged and ordered her deportation to Canada. The appeal will be sustained and these proceedings will be terminated.
The respondent is a native and citizen of Canada. She entered the United States on April 1, 1971. The Service concedes that she has at least 50 percent American Indian blood. On May 27, 1977, she was convicted in the District Court of Dallas County, Texas, for the unlawful possession of heroin.
Before us and before the immigration judge the respondent has argued that she is not deportable by virtue of section 289 of the Immigration and Nationality Act, 8 U.S.C. 1359, which reads:
Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.
The right of American Indians to move freely between what is now the Dominion of Canada and the United States was first recognized by our Government in the Jay Treaty of 1794, 8 Stat. 117, and was reiterated in the Treaty of Ghent of 1814, 8 Stat. 222. As we pointed out in Matter of A----, 1 I. & N. Dec. 600 (BIA 1943), prior to 1924 American Indians born in Canada were considered free to cross the border without regard to the immigration laws.
After the passage of the Immigration Act of 1924, 43 Stat. 153, the administrative authorities first attempted to subject such Indians to immigration restrictions by excluding them as persons who were ineligible to citizenship. However, this attempt at excluding American Indians born in Canada was rebuffed by the judiciary. See U.S. ex rel. Diabo v. McCandless, 18 F.2d 282 (E.D.Pa.1927), aff'd, 25 F.2d 71 (3 Cir.1928). Congress, in the Act of April 2, 1928, 45 Stat. 401, approved the Diabo result and legislated:
That the Immigration Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States....
Such being the state of the law, in Matter of A----, supra, we held that an American Indian born in Canada was not deportable as one who would be excludable at the time of entry under the Act of February 5, 1917, 39 Stat. 874, because he was exempted from the exclusion provisions of the immigration laws. However, we found the respondent in those proceedings deportable as one who became a public charge within five years after entry into the United States from causes not affirmatively shown to have arisen subsequent thereto. We refused to extend the immunity from exclusion to deportation.
We recognized that deporting an American Indian born in Canada would not prevent him under our laws from again entering this country. However, we reasoned that such Indians were wards of the Canadian Government, which could be expected to administer its Indian laws in a way that would prevent their return to the United States after their deportation from this country.
In Matter of B----, 3 I. & N. Dec. 191 (BIA 1948), and Matter of D----, 3 I. & N. Dec. 300 (CO and BIA 1948), we refined our thinking and we stated that the better...
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