Ribeiro v. Immigration and Naturalization Service
| Decision Date | 02 March 1976 |
| Docket Number | No. 75--1761,75--1761 |
| Citation | 531 F.2d 179 |
| Parties | Joao Pedro Porfirio RIBEIRO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Milton S. Kramer, Kramer & Kramer, Newark, N.J., for petitioner.
B. Franklin Taylor, Jr., Washington, D.C., James P. Morris, Chester J. Halicki, Government Regulations Section, Crim. Div., Dept. of Justice, Washington, D.C., for respondent.
Before HUNTER, BIGGS and GARTH, Circuit Judges.
This case comes before us on a petition for review of an order of the Board of Immigration Appeals. 1 The Board, with one member dissenting, dismissed an appeal from a decision of the Immigration Judge which had ordered petitioner deported under Section 241(a)(13) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(a)(13):
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who--
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.
Petitioner contends that the deportation order must be vacated because
1) the government has failed to prove that he acted 'for gain' 2) the government has failed to prove that he acted 'knowingly' within the meaning of the statute; and
3) the Order to Show Cause upon which he was ordered deported was defective.
In view of our conclusion that the deportation order must be set aside on the first point, we have no occasion to discuss the other issues.
The following facts are not controverted in the record. On March 23, 1974, petitioner, a resident of Union, New Jersey, received a phone call from a Mr. Aucides in Montreal. 2 Aucides stated that there were three individuals from Portugal in Montreal who wished to enter the United States but lacked transportation. Aucides asked petitioner to arrange for someone to drive from New Jersey to Montreal. The financial arrangements were as follows: petitioner was to pay the driver $100 in advance, Aucides was to give the driver $150 on leaving Montreal, and petitioner was to receive the $150 by meeting the returning auto at a point on the New York State Thruway near Albany. Petitioner carried out his part of the arrangement, but after driving to the rendezvous point and waiting for one half hour, he departed, apparently empty-handed.
After petitioner made a statement to the Immigration Service in Albany concerning these events, the Service issued an Order to Show Cause why petitioner should not be deported, and the matter came on for hearing on June 18, 1974.
At the hearing, the Government introduced petitioner's statement to the Immigration Service. Petitioner testified that the $150 he was to receive represented a reimbursement of the $100 initial outlay and an additional amount to cover the expenses of the round trip from Union to Albany. No other evidence bearing directly on the question of 'gain' was offered.
In his oral decision of June 18 (p. 35--37a) the Immigration Judge recognized that the record concerning the 'extra' $50 3 'raise(s) a question whether this is the gain contemplated by Section 241(a)(13) of the statute.' (p. 36--37a). In answering the question in the affirmative, the Immigration Judge cited Matter of B- G-, 8 I & N Dec. 182 (BIA 1958), and Matter of Vargas-Banuelos, 13 I & N Dec. 810 (BIA 1971). 4 In dismissing the appeal, the Board of Immigration Appeals offered no additional authority or explanation, noting only that 'the immigration judge properly applied the pertinent legal principles.' (p. 39a). We cannot agree.
Respondent has not directed our attention to any statutory or regulatory provision defining 'gain' in this context. We can only proceed on a common sense interpretation of the phrase 'for gain' as requiring the prospect of an excess of tangible return over expenditure in a particular transaction. This is consistent with the view in Matter of B- G-, supra, that 'the anticipation of profit, no matter how small, brings the (alien) within the deportation provision.' (Emphasis added.) 5
As the Immigration Judge recognized, the government has the burden of proving deportability by clear, convincing and unequivocal evidence. Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). Here, the government has shown only that petitioner was to receive a modest sum of money for his part in the endeavor. While this may well be sufficient to support a finding that the alien acted 'for gain' where the record contains no evidence of offsetting expenses or losses contemplated, that is not the case here. Petitioner testified that he and Aucides considered the $50 to be merely reimbursement. Petitioner also testified that he expected to incur expenses, namely the expense of a round-trip to Albany. This testimony was not contradicted. 6
In this situation we believe that the 'clear and convincing' test of Woodby requires that the government shoulder the burden of persuasion that the alien, despite his denials, did in fact act 'for gain.' One way in which this might be done would be a demonstration that the consideration received was so clearly in excess of the foreseeable expenses claimed that the alien's assertion that he did not anticipate gain must be disbelieved.
While it would not be appropriate for us to attempt to formulate detailed standards for assessing expenses, it would seem necessary to account in some manner for the type of travel expenses placed in issue here. On the facts of this case, we believe that the dissenting Board member properly asked
How is it possible to say that no generally accepted accounting principles would cost the trip to Albany and back at more than $50?
p. 42a. 7
In view of the above, the Immigration Judge's determination that the Government had established a prospective 'gain' by clear, unequivocal and convincing evidence cannot be said to be based on 'reasonable, substantial and probative evidence.' Woodby, supra ...
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