United States v. Swing, Civ. A. No. 931.

• Citation: 146 F. Supp. 648
• Decision Date: 20 February 1956
• Docket Number: Civ. A. No. 931.
• Parties: UNITED STATES of America ex rel. Rosbel DE LA FUENTE v. General J. M. SWING et al.
• Court: U.S. District Court — Southern District of Texas

146 F. Supp. 648

UNITED STATES of America ex rel. Rosbel DE LA FUENTE v. General J. M. SWING et al.

Civ. A. No. 931.

United States District Court S. D. Texas, Brownsville Division.

February 20, 1956.

Roy D. Buckley, Mission, Tex., for relator.

Malcolm R. Wilkey, U. S. Atty., Houston, Tex., Brian S. Odem, Asst. U. S. Atty., Brownsville, Tex., for respondents.

ALLRED, District Judge.

By an amended petition for writ of habeas corpus, de la Fuente seeks to be discharged from an order of the immigration authorities excluding him from admission to the United States and ordering him deported to Mexico.

De la Fuente, a citizen of Mexico by birth, entered the United States illegally in 1943 and worked in the Rio Grande Valley until 1949, except for short periods of time when he was permitted to return voluntarily to Mexico in lieu of deportation. He became engaged to marry a citizen of the United States in 1949 and returned to Mexico to secure proper papers for legal entry. On June 10, 1949, he presented himself for entry at Hidalgo, Texas, with a proper passport and public health clearance. He was interviewed by Charles L. Austin, an immigration inspector, who filled out a manifest according to information given under oath by petitioner, showing his destination as "Mexico via Hidalgo & McAllen to visit and shop one hour;" and a response to the question "Ever in the United States", in the negative. In the space, marked "Remarks and endorsements", appears the following:

"Applicant presents Mex. P. P. No. 3021-49 issued at Monterrey N. L. Mex. on 6/9/49 valid indef. (3) 2 Visa No. 6143 issued at Monterrey N. L. Mex. 6/9/49 valid 12 months with 257 form attached. Under oath and advised of the penalties of perjury (perjury defined) applicant denied that he had ever entered the U. S. or had ever been sent back to Mexico. Stated that he had never been granted a voluntary return in lieu of deportation. Apparently V. Departure Card of 9/14/45, file 3100 applies to subject."

The manifest was signed underneath the foregoing by Inspector Austin and by De la Fuente. The matter thereupon was referred to a Board of Special Inquiry and a definite date set for hearing. De la Fuente returned to Mexico and did not appear for such hearing. Instead he entered the United States illegally and married his sweetheart on July 5, 1949.

Thereafter, on November 3, 1949, de la Fuente again presented himself for legal entry at Hidalgo, presenting proper passport and documents, and, after having been placed under oath, before a Board of Special Inquiry, he was advised as to the statutory definition of perjury, 18 U.S.C.A. § 1621, and advised as to his right to have counsel, relatives or friends present. He waived such right. A manifest record prepared by Inspector Glasgow on November 3, 1949, was read to him and he stated that he had no corrections or additions to make. He then testified under oath that he had married an American wife in Edinburg, Texas, on July 5, 1949; that he had never been legally admitted to the United States for permanent residence; that he had gone back to Mexico voluntarily, through Hidalgo twice. Upon being advised that the immigration records showed that he had been given permission to depart voluntarily three times, (September 14, 1945, March 28, 1946 and June 3, 1947) de la Fuente stated that this was probably right; that he had first entered the United States illegally in 1943 and had worked in the Valley continuously from 1943 to 1949, except for temporary periods of time when he was given permission to depart from the United States voluntarily in lieu of deportation; that he had not registered for the military service because he had heard that one illegally in the United States could not register. Thereupon he was advised that the records of the immigration office indicated that on June 10, 1949, he had applied for admission to go to McAllen and shop for one hour and had sworn at such time that he had never been in the United States; that such records also showed that, after being advised of the definition of perjury, he had denied that he had ever entered the United States or had ever been sent back to Mexico and had stated that he had never been given a voluntary return in lieu of deportation. Petitioner then answered, "Yes, but I lied at the time" (referring to June 10, 1949); that he had not returned for the hearing before the Board of Special Inquiry because he was going to get married and his friends induced him to say that he had never been in the United States; that he reentered the United States illegally and got married; that he realized he was to blame "for I am not a child;" that his friends told him that if he ever had a record in the office he couldn't get a card; that this was the reason he denied it; that on June 10, 1949, he actually was coming to the United States to get married "in order to stay in the United States;" that he had told the primary inspector that he had never been in the United States because he was induced to do so by his friends and was anxious to get married; that he recalled the definition of "perjury", as it had been explained to him before the board. Considering all of the facts in the case in the light of the definition of perjury, petitioner admitted that he had committed perjury before the primary inspector June 10, 1949, in swearing that he had never been in the United States and had never been given permission to depart voluntarily in lieu of deportation. He stated that the requirements for a local crossing card were less than those required for a passport to live in the United States and for that reason he secured the local crossing card first in order to get married; that he thought it would be easier to continue residence in the United States and secure the proper papers to remain here after he was married.

In response...