Reyes v. Neely, 15642.

• Decision Date: 06 January 1956
• Docket Number: No. 15642.,15642.
• Citation: 228 F.2d 609
• Parties: Hector Manuel REYES, Appellant, v. Marcus T. NEELY, District Director, Immigration and Naturalization Service, El Paso District, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 609 (1956)

Hector Manuel REYES, Appellant, v. Marcus T. NEELY, District Director, Immigration and Naturalization Service, El Paso District, Appellee.

No. 15642.

United States Court of Appeals Fifth Circuit.

January 6, 1956.

Francis S. Ainsa, El Paso, Tex., for appellant.

Wm. Monroe Kerr, Asst. U. S. Atty., Midland, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., Holvey Williams, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This appeal from a judgment denying habeas corpus, and remanding the appellant to the custody of the United States Immigration and Naturalization Service for further action, presents one sole contention, viz.: "Appellant did not violate Section 241(a) (13)¹ of the Immigration & Nationality Act of 1952 in that the aliens Jose Morales Hernandez and Antonio Nunez Marquez did not on September 17, 1952 enter the United States in violation of law."

We have carefully read and considered the entire transcript of record and find the substance of the evidence adduced at the hearings before the Special Inquiry Officer of the Immigration and Naturalization Service to be accurately summarized in the parties' "agreed statement of record on appeal", quoted in the margin.²

Admittedly, the appellant aided, abetted and encouraged the aliens to enter the United States to work therein, when he knew that their cards were not valid for such purpose.³ A misrepresentation may be made as effectively by conduct as by words. The conduct of the aliens in entering the United States by showing their Border-Crossing Identification Cards to the Immigration Officer, when they knew that such cards were not valid for work in the United States, but had already agreed to work for the appellant in this Country, and, at the time of entry, actually intended so to do, constituted, we think, false misrepresentation to the Immigration Officer. The facts of this case are stronger against the appellant than those appearing in cases holding that an undisclosed illegal intention at the time of entry may convert an otherwise legal entry into a violation of law. Sleddens v. Shaughnessy, 2 Cir., 177 F.2d 363; United States ex rel. Feretic v. Shaughnessy, 2 Cir., 221 F.2d 262.

Appellant's main reliance is upon United States v. Prince Line, 2 Cir., 189 F.2d 386. The opinion in that case distinguishes the earlier Second Circuit decision in Sleddens v. Shaughnessy, supra, and is itself distinguished by the later opinion of the same court in United States ex rel. Feretic v. Shaughnessy, supra. We have more difficulty distinguishing the rationale of the opinion of the District of Columbia Circuit in Brownell v. Gutnayer, 94 U.S.App.D.C. 90, 212 F.2d 462, 464, though even that rationale would not excuse the false misrepresentation to the Immigration Officer clearly and intentionally made by the conduct of the aliens in this case. We think the judgment was right and it is

Affirmed.

1 "§ 1251. Deportable aliens — General classes

"(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who —

* * * * *

"(13) prior to, or at the time of any 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." 8 U.S.C.A. § 1251(a) (13).

2 "Hector Manuel Reyes was born in Juarez, Chihuahua, Mexico on December 18, 1925 and is a citizen of Mexico. He was lawfully admitted to the United States for permanent residence on August...