Pimental-Navarro v. Del Guercio, 15745.

• Decision Date: 12 June 1958
• Docket Number: No. 15745.,15745.
• Citation: 256 F.2d 877
• Parties: Jose PIMENTAL-NAVARRO, Appellant, v. Albert DEL GUERCIO, Acting District Director, Immigration and Naturalization Service at Los Angeles, California, and Joseph A. Dummel, Special Inquiry Officer, Immigration and Naturalization Service at Los Angeles, California, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

256 F.2d 877 (1958)

Jose PIMENTAL-NAVARRO, Appellant, v. Albert DEL GUERCIO, Acting District Director, Immigration and Naturalization Service at Los Angeles, California, and Joseph A. Dummel, Special Inquiry Officer, Immigration and Naturalization Service at Los Angeles, California, Appellees.

No. 15745.

United States Court of Appeals Ninth Circuit.

June 12, 1958.

David C. Marcus, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Bruce A. Bevan, Jr., Richard A. Lavine, Los Angeles, Cal., for appellee.

Before POPE, CHAMBERS, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Jose Pimental-Navarro was ordered deported for having knowingly and for gain assisted, aided, and abetted an alien to enter the United States illegally. Proceeding under the Administrative Procedure Act (5 U.S.C.A. §§ 1001, 1009) and the Declaratory Judgment Act (28 U.S. C.A. § 2201), he instituted this action to obtain a review of that order. Judgment was entered for defendants, and plaintiff appeals.

It is conceded that the act charged is a specified ground for deportation. See 8 U.S.C.A. § 1251(a) (13), quoted in the margin.¹ Appellant contends, however, that his return to the United States on March 4, 1954, following a visit of a few hours in Mexico (on which occasion the deportable act was found to have occurred) did not constitute an "entry," within the meaning of the quoted statute, and that his last prior statutory "entry" occurred more than five years previously.

The term "entry" is defined in 8 U.S.C.A. § 1101(a) (13).² A return from a foreign port or place following even a brief excursion is an "entry," within the meaning of this definition. Resurreccion-Talavera v. Barber, 9 Cir., 231 F.2d 524; Schoeps v. Carmichael, 9 Cir., 177 F.2d 391, 396.

It is further contended that there is no substantial or probative evidence in the record that appellant assisted another alien to enter the United States "for gain." We find, however, that there is substantial and probative evidence in the record to support this finding.

Invoking 8 U.S.C.A. § 1254(a) and (e), appellant applied for suspension of deportation, or the privilege of voluntary departure. This was denied, on the ground that appellant was ineligible for such relief. Appellant challenges this determination.

A finding of good moral character is a statutory prerequisite to the discretionary relief requested. Under 8 U.S.C.A. § 1101(f) (3), a finding of good moral character is precluded in the case of a person who is or was

"* * * a member of one or more of the classes of persons, whether excludable or not, described in paragraphs (11), (12), and (31) of section 1182(a) of this title."

Appellant is a person described in 8 U.S.C.A. § 1182(a) (31), for that section pertains to

"* * * any alien who at any time 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 determination that appellant was ineligible for suspension of deportation or voluntary departure is accordingly correct and proper.

At the time of the deportation hearing, appellant applied for nunc pro tunc discretionary relief under 8 U.S.C.A. § 1182(c).³ The Board of Immigration Appeals denied this application. Appellant argues, in effect, that this was an abuse of discretion, because of the extreme hardship which will result, and in view of the fact that during the entire period of his residence in this country, beginning in 1920, and until the incident in question, he has been a person of good moral character.

In denying the application for relief under 8 U.S.C.A. § 1182(c), the Board did not question appellant's prior behavior, and fully recognized the hardship which would result. The application was denied on the ground that the acts were "such that the granting of relief * * * is not warranted."⁴

We find no basis for judicial disturbance of the judgment which has been entered. Nevertheless, in view of the extreme hardship which will result, and the trifling nature of the offense, we think it appropriate to give the Board an opportunity to reconsider the denial of relief under 8 U.S.C.A. § 1182(c).

The facts which move us to adopt this course are not in dispute, and may be briefly stated: Appellant, who owns a modest home and operates a small grocery and vegetable peddling business, entered this country in 1920 and has lived here ever since — thirty-eight years. He is the father of six children, all natives and hence citizens of the United States. Three of the children are minors, the youngest being thirteen years of age. They live with their mother — appellant's wife — from whom he has been separated for twelve years. This means that if appellant must leave the country, he will be separated from his minor children.

His wife is not employed, and she and the minor children are totally dependent upon appellant for their support. He now contributes sixty dollars a month for their support, and also supplies them with groceries and vegetables worth twenty-five to thirty dollars a week.

Except for the incident here in question, there seems to be no flaw in appellant's record. He has never before been charged with a violation of law. Neither he nor his family has ever been a public charge. He registered for military service during the war.

In bringing an alien into the United States illegally and for gain, appellant yielded to temptation under most trying circumstances. On March 4, 1954, a person approached appellant while he was selling vegetables and offered him fifty dollars if he would bring one Sexto Medina into this country...