Vargas-Banuelos v. Immigration & Naturalization Serv.

• Decision Date: 14 September 1972
• Docket Number: No. 72-1159.,72-1159.
• Citation: 466 F.2d 1371
• Parties: Antonio VARGAS-BANUELOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, an Agency of the United States Government and Its Director, the Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 1371 (1972)

Antonio VARGAS-BANUELOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, an Agency of the United States Government and Its Director, the Attorney General of the United States, Respondent.

No. 72-1159.

United States Court of Appeals, Fifth Circuit.

September 14, 1972.

Robert L. Millard, Kent R. Morrison, El Paso, Tex., for petitioner.

John N. Mitchell, Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Troy A. Adams, Jr., District Dir., Immigration and Nat. Service, New Orleans, La. and District Director, Immigration & Nat. Service, El Paso, Tex., William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for respondent; William E. Weinert, Trial Atty., Immigration and Naturalization Service, El Paso, Tex., of counsel.

Before BELL, GOLDBERG and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case, the Government, seeking an expansive interpretation of the deportation laws, asks us to affirm the order of the Immigration and Naturalization Service (INS) deporting petitioner. Although the Government's argument has some merit, we are bound by the philosophy and wisdom of the Supreme Court's decision in Rosenberg v. Fleuti, 1963, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000, and we therefore reverse and set aside the order of deportation.

Petitioner is a 41 year old Mexican national who was duly admitted to the United States as a permanent resident in 1963. Since that time he has resided in Colorado with his wife and four children, the youngest of whom is a native born United States citizen. The record shows that on or about April 2, 1970, petitioner traveled from Colorado to Juarez, Mexico, to pay a condolence call on the family of a cousin who had recently passed away. On or about April 4, 1970, prior to departing from Juarez petitioner was approached by four Mexicans who sought his aid in effecting an illegal entry into the United States and in procuring transportation to Chicago after the entry. While the precise details of petitioner's involvement remain uncertain, it is clear that petitioner accepted money from the four aliens and made arrangements with a third party to meet the four men in El Paso, Texas, where they would be assisted in their journey northward. There was no evidence in the record of any knowledge or intention on the part of petitioner to engage in this activity prior to the moment when he was first approached by the four aliens in Juarez.

All of the parties to this scheme were apprehended by United States immigration officers in Texas after crossing the border. On April 9, 1970, the petitioner, appearing before the United States District Court for the Western District of Texas, pleaded guilty to four counts of aiding and abetting the four Mexicans in entering the country illegally. On July 9, 1970, he was sentenced to concurrent sentences of six months on each of the four counts, with sentences being suspended on the last three counts and petitioner being placed on probation for a term of five years. The district court later amended its original judgment by adding a recommendation to INS that the petitioner not be deported. Nevertheless, INS thereafter instituted proceedings to deport petitioner under 8 U.S.C.A. § 1251(a)(13), which provides:

"(a) Any alien in the United States . . . 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. . . ."

The special inquiry officer rendered his decision deporting petitioner on November 2, 1970, and the decision was upheld by the Board of Immigration Appeals on December 6, 1971. From that decision petitioner brings this appeal.

The primary focus of petitioner's legal claim revolves around that part of the statute that requires that the illegal behavior take place "prior to, or at the time of . . . or . . . within five years after any entry." This requirement of an "entry," simple enough on its face, has become a term of art in judicial circles. Owing to the harsh results that can flow from a finding of an "entry" in a deportation case, particularly in cases where the entry was the result of a short or inadvertent departure from the United States,¹ Congress, in 1952, added the following section to the statute defining the term "entry":

"(13) The term `entry\' means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception."

8 U.S.C.A. § 1101(13) emphasis added.

The judicial landmark for interpreting this provision came in the Supreme Court's decision in Rosenberg v. Fleuti, supra. There the Court read the "entry" requirement so as to prevent the situation whereby a resident alien subjects himself to deportation based on an "entry" into the United States when the entry relied on by the Government is nothing more than a return from a short visit outside the country, made without any intention on the part of the resident alien of abandoning his resident status. Speaking for the Court, Justice Goldberg stated:

". . . we declare today simply that an innocent, casual, and brief excursion by a resident alien outside this country\'s borders may not have been `intended\' as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an `entry\' into the country on his return."

374 U.S. at 462, 83 S.Ct. at 1812, 10 L.Ed.2d at 1009.

In determining whether the alien "intended" to interrupt his residential status the Fleuti court established various relevant factors to be considered, including length of absence from the United States,² the need to obtain special...