United States v. Wong Kim Bo

• Decision Date: 18 December 1972
• Docket Number: No. 71-1928.,71-1928.
• Citation: 466 F.2d 1298
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. WONG KIM BO, a/k/a Yee Kuk Ho, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 1298 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. WONG KIM BO, a/k/a Yee Kuk Ho, etc., Defendant-Appellant.

No. 71-1928.

United States Court of Appeals, Fifth Circuit.

August 7, 1972.

Rehearing Denied December 18, 1972.

Anthony S. Battaglia, Howard P. Ross, Parker, Battaglia & Ross, St. Petersburg, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., William M. James, Jr., Claude H. Tison, Jr., Tampa, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Wong Kim Bo, a many named person,¹ appeals from his conviction and consequent one year sentence for being found unlawfully in this country after having once been arrested and deported in violation of 8 U.S.C.A. § 1326.² We are of the view that the Government failed to prove an essential element of the criminal offense—namely, that the defendant was "arrested" as that term is contemplated by the statute—and accordingly we reverse the conviction.

The Facts—Coming and Going and Coming

Desirous of leaving his native Hong Kong, China, in 1959 defendant purchased a Canadian father for the sum of $2200, or more accurately, he acquired certain papers indicating, fraudulently, that he had such a Canadian father and was therefore a Citizen of Canada. On the basis of that Canadian Naturalization Certificate, he entered Canada and obtained a Canadian passport. Subsequently, in 1963, he entered the United States at Portal, North Dakota, as a visitor, but remained in this country substantially beyond the 6 months allowed a non-immigrant visitor.

In September 1968 the defendant went to the Tampa, Florida, office of the Immigration and Naturalization Service to inquire about the detention of his employer, a fellow countryman, and to attempt to secure his release. During that interview, defendant presented his Certificate of Canadian Citizenship and Canadian passport, which due to certain discrepancies³ led the Border Patrol Agent to arrest the defendant for being illegally in the United States.⁴ Although no criminal prosecution was ever brought or contemplated, a Show Cause Order was issued directing the defendant to demonstrate why he was not a deportable alien "in that, after admission as a non-immigrant under Section 101(a)(15) of said Act⁵ you have remained in the United States for a longer time than permitted."

Thereafter, a hearing was held before a Special Inquiry Officer during which the defendant, represented by counsel, admitted his deportability but requested to be granted the privilege of voluntary departure from this country in lieu of deportation.⁶ The Special Inquiry Officer granted that discretionary relief and on January 15, 1969, entered his formal decision ordering that "in lieu of an order of deportation the respondent be granted voluntary departure without expense to the Government on or before February 14, 1969, or any extension beyond such date as may be granted by the district director, and under such conditions as the district director shall direct." The decision further ordered that "if the respondent fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order⁷ shall thereupon become immediately effective: the respondent shall be deported from the United States to Canada on the charge(s) contained in the Order to Show Cause." Importantly, no warrant of deportation (Form I-205) was issued at this or any other point in these proceedings. The effect of the order of January 15 was, therefore, an automatic, self-executing order of deportation if the defendant remained in the country beyond February 14, 1969, without having obtained an extension from the District Director of INS.⁸

Foolishly procrastinating until the proverbial last-minute and despite a warning by the INS, the defendant made no effort to secure arrangements for his departure until the last day— February 14, 1969. To his unhappy surprise, if not consternation, when he presented himself at an airport seeking passage out of the country on that day, he was informed that international space was unavailable due primarily to the midseason rush of weekend "jet-setters" seeking refuge from the bitter ravages of the eastern winter in the travel poster-promised sun-kissed Xanadus of distant lands. Recognizing the awkwardness of the predicament, the defendant telephoned his attorney in Miami. The attorney, like the flight space, was not available, so the defendant discussed his problem with the attorney's chief assistant, an interpreter, translator, general clerk and modern day paralegal who had been employed by the law firm for over 16 years specializing in immigration matters such as supervising filing of forms, talking with clients, and consulting with INS officials. This clerk immediately telephoned one of the INS officials in the deportation division⁹ with whom he had had numerous dealings over the years in such matters. According to the Clerk the INS official said, exactly, "It's all right if he leaves on Monday February 17." The fact of this reprieve was relayed to the defendant and as suggested by the telephone communication, defendant left the country destined for Nassau on February 17.

The Nassau junket was brief and on February 19 the defendant returned to this country on a non-immigrant visitor's visa (obtained by the use of the purchased Canadian papers of which the INS had carelessly neglected to relieve him) but without obtaining permission from the Attorney General. He was subsequently found in this country, whereupon a criminal investigation was commenced, culminating in the present conviction, sentence and appeal.

The Offense Charged—Return After Arrest and Deportation

Contrary to the advice of the District Director who recommended that the case be dismissed or nolle prossed, the United States Attorney sought to prosecute the defendant under 8 U.S.C.A. § 1326.¹⁰ Carving from the statute the five particular elements (i through v) applicable to the facts of this case, the indictment charged that, "on or about September 5, 1969, defendant, an i alien who had theretofore been ii arrested and iii deported from the United States of America on or about February 17, 1969, v without having the Attorney General's express consent to re-apply for admission to the United States, was iv found unlawfully in the United States, in the Middle District of Florida; in violation of Section 1326, Title 8, United States Code.¹¹

It is readily apparent that there are at least five elements to the particular offense charged which the government must prove in order to obtain a conviction: i that defendant was an alien, ii and iii that he was "arrested" and "deported" as those terms are contemplated by the statute, iv that he was subsequently found within this country, and v that he did not have consent from the Attorney General to reapply for admission. Elements (i), (iv), and (v) are not in dispute and the gravamen of defendant's argument is that he was neither "arrested" nor "deported" within the meaning of the statute.¹² Since we determine that he must prevail on the "arrest" issue we need not determine the question of whether or not he was in fact deported or whether his exodus from the country was under the aegis of voluntary departure.

Arrest—Statutory Interpretation in a Vacuum

The statute, at least that part of it involved here, imposes criminal sanctions for re-entry without the Attorney General's permission only when the alien has previously been "ii arrested and iii deported". The problem is, what kind of "arrest" is contemplated by this statute? That inquiry turns on reasoning why Congress would require both "arrest and deportation" instead of mere deportation alone to trigger the criminal sanctions. A preliminary understanding of INS procedures is necessary at this point.

"Every proceeding to determine the deportability of an alien in the United States is commenced by the issuance and service of an order to show cause by the services." 8 CFR § 242.1. At the time of the issuance of the show cause order, or at any time thereafter, the district director may issue a warrant for the arrest of the alien. "However, such warrant may be issued by no one other than a district director, acting district director, or deputy district director, and then only whenever, in his discretion, it appears that the arrest of the respondent is necessary or desirable." 8 C.F.R. § 242.2¹³ and 8 U.S.C.A. § 1252(a). If the hearing on the show cause order before the Special Inquiry Officer results in a determination of deportability and a denial of discretionary voluntary departure in lieu of deportation and after exhaustion, waiver or expiration of time for appellate review, an order of deportation issued by the Special Inquiry Officer or the Board of Immigration Appeals becomes final. 8 C.F.R. § 243.1. Thereafter, but only if voluntary departure is denied or the deportation aspect of the Special Inquiry Officer's order becomes otherwise operable, as for example, by failure to voluntarily depart as arranged,¹⁴ a Warrant of Deportation of the alien (INS Form I-205) is issued directing any officer or employee of the INS to "take into custody and deport the said alien pursuant to law * * *." (Emphasis added). The issuance of a Warrant of Deportation is mandatory under 8 C.F.R. § 243.2¹⁵ unless the alien has been granted the privilege of voluntary departure, in which case he is not "deported" at all. At this point the alien is served either personally or by certified mail with Form I-294 (Appendix A) informing him in his native tongue of the penalties which can be imposed should he return to this country after deportation without obtaining permission from the Attorney General. Normally the custody of the alien is secured by sending him a notice to surrender for deportation (Form I-166—Appendix B) and...