MATTER OF FARINAS
A-4699844
In Deportation Proceedings
September 15, 1967
Interim Decision #1797 | 12 I. & N. Dec. 467
Decided by Board September 15, 1967
CHARGE:
Order: Act of 1952—Sections
ON BEHALF OF RESPONDENT:
Charles J. Wong, Esquire
755 Commercial Street
San Francisco, Calif. 94108
(Brief filed)
ON BEHALF OF SERVICE:
Stephen M. Suffin
Trial Attorney
(Brief filed)
Respondent appeals from the decision of the special inquiry officer finding him deportable as charged, and granting him voluntary departure with an alternate order of deportation to the Philippines.
Respondent is a 64-year-old married male alien, a native and citizen of the Philippines, who last entered the United States at Honolulu, Hawaii on or about September 9, 1966 as a visitor for pleasure. In earlier proceedings he testified that he first entered the United States at Hawaii on June 14, 1922 and arrived in the continental United States at San Pedro, California in either December 1923 or January 1924. He remained in this country continuously from that time, with the exception of occasional brief crossings into Mexico, the last one being in 1929, until he was deported from the United States in May 1950.
After his release, respondent worked for the Libby Company which sent him to Alaska as one of a group of cannery workers in the summers of 1941, 1942, 1943 and 1944. The company made all arrangements for their transportation from California to Alaska and back, and it was respondent‘s recollection that they went sometimes by airplane and sometimes by boat. During the 1942 trip north, the boat stopped in the port of Vancouver, B.C., Canada, and the workers were transferred to another boat which took them the rest of the way to Alaska. Respondent was ashore for about an hour, for the purposes of the transfer, but there is no showing that he had anything to do with, or knew anything of, the arrangements for the stopover and transfer in the Canadian port. Immigration Service records show him as being thereafter admitted at Ketchikan, Alaska on June 20, 1942.
In September 1944, a two-count information was filed against respondent in the Superior Court, King County, State of Washington, charging abduction of a female under 18 for the purpose of sexual intercourse or marriage without the consent of her legal guardian, and carnal knowledge and abuse of a female under the age of 18. He was represented by counsel and pleaded guilty to the first charge on December 5, 1944; the second was dismissed on December 22, 1944. He was sentenced to imprisonment for a maximum term of not more than 10 years, and started serving his sentence.
Deportation proceedings were instituted in early 1945. Respondent was charged with being deportable as one excludable at the time of his June 1942 entry, under the
The hearings were held, without interpreter, at the State Penitentiary in Walla Walla, Washington. Respondent, when asked if he wished counsel, stated that he did and was given a two-week adjournment. At the continued hearing, on September 12, 1945, respondent testified that he had not yet secured counsel. The special inquiry officer declared that the hearing would proceed and in the event re-
At the hearing, it was clearly established that respondent was a native and citizen of the Philippines; that he had touched at a Canadian port in 1942 when the company transportation provided for a transfer of boats and he had gone ashore for that purpose; and that he was the person referred to in the record showing Mariano Farinas to have been admitted at Ketchikan, Alaska on June 20, 1942. He identified as relating to him the two convictions referred to above and sought to explain the circumstances leading to the second conviction, but was advised this was not relevant. He was advised that he would be served with a copy of the proposed findings of fact, conclusions of law and order, and advised of his appeal rights. He was served on November 23, 1945, but did not file exceptions within the specified period. Both of the warrant charges were sustained, and in ordering him deported to the Philippines, it was specifically recommended that execution of the warrant of deportation be deferred until such time as respondent was released from imprisonment.
The Commissioner of Immigration, on review, amended the order only to the extent of holding that since respondent had been inadmissible for a cause existing at the time of entry, deportation was to be at the expense of the transportation company. The case then came before the Board, which on November 12, 1946, rendered a decision holding respondent deportable on the first charge only. The Board was of the opinion that it was possible respondent had taken the girl for the purpose of marriage, and that moral turpitude might not inhere in abduction for that purpose. Since it was sustaining the first charge, the Board held it would not pass on whether respondent‘s 1944 conviction was for a crime involving moral turpitude. It was affirmed that execution of the warrant of deportation should be deferred until respondent was released from prison.
Respondent finished serving his sentence in 1950 and was deported to the Philippines on May 15, 1950. He never returned to the United States until his entry of September 9, 1966.
At the present hearing, at which respondent was represented by counsel and communication was through an official interpreter, in the Ilocano dialect, the Government rested after introducing the warrant of deportation, showing execution on May 15, 1950 via the USNS Simon B. Buckner. Although making no claim that permission to reapply for admission had ever been applied for or received, respondent denied deportability, contending that the 1950 deportation was improper and invalid. It was urged that he had not made an entry in
At the close of the hearing, the special inquiry officer rendered an oral decision finding respondent deportable on the charge contained in the order to show cause. It was bottomed upon his holding that the arrival in Alaska in June 1942 had properly been deemed an entry. He stated:
* * * Counsel, presumably referring to Rosenberg v. Fleuti, 374 U.S. 449, contends that this was not an entry within the meaning of the immigration laws. He also contends that as the respondent was then a national of the United States, he was not deportable.
At the time of respondent‘s deportation, Fleuti had not been decided by the Supreme Court. Under the law as it was then interpreted, the respondent had made an entry into the United States after his stop at Vancouver, B.C., Canada. * * *
It may well be that if the respondent had not been deported and the case were now coming before me, I would find that he had not made an entry in 1942. However, collateral attacks on the validity of a deportation order after deportation had taken place, based on changes in judicial and administrative decisions interpreting the law, are permitted only where there is evidence of a gross miscarriage of justice. No evidence of such miscarriage of justice has been adduced, merely a showing that the law is now interpreted differently. * * *
The Service, in its brief supporting the decision of the special inquiry officer, makes no claim that the earlier decision was in accordance with prevailing law as it was interpreted at the time of respondent‘s deportation, but urges that the deportation order is not subject to collateral attack because on November 12, 1946 (the date of the Board‘s order, which was three and one-half years before the actual deportation) respondent was clearly subject to deportation under the prevailing judicial and administrative determinations.
On appeal, counsel repeats the two contentions made at the hearing. On the “entry” question, he relies not on Rosenberg v. Fleuti, as assumed by the special inquiry officer, but on Delgadillo v. Carmichael, 322 U.S. 388 (November 10, 1947) and DiPasquale v. Karnuth, 158 F. 2d 878 (C.A. 2, January 11, 1947), two cases closer in facts and in time to respondent‘s proceedings than the Fleuti matter. Both were administratively decided before or contemporaneously with the finding of deportability herein, and were in litigation when the Board rendered its decision of November 12, 1946. Both became the prevailing law at least two and one-half years before respondent was deported on a finding made under a theory of law overruled and set aside by those cases.
Had respondent been deported on November 12, 1946, or at any time
The DiPasquale case involved an alien who entrained at Buffalo, New York for a trip to Detroit and who, during the night, was carried into Canada as the train followed its normal route. There was no showing that he knew in advance that the train was scheduled to go through Canada, or that he actually set foot on Canadian soil. Mr. Justice Learned Hand, in holding that there was no entry because the alien had never intended to depart from the United States, stated:
* * * we think that the intent of a carrier, unknown to the alien, to carry him across a border and back again, upon a route whose termini are within the United States, should not be imputed to him. * * *
In Delgadillo, the Supreme Court granted certiorari because of a contrary result reached in the Ninth Circuit. Delgadillo was a crew member on an American ship making a coastwise voyage from Los Angeles to New York, during World War II. The ship was torpedoed in the Caribbean Sea and the alien was rescued and taken to Cuba, where he remained for one week until his return to the United States was arranged. The Ninth Circuit held that he had made an entry upon his return from Cuba. The Supreme Court, in reversing and holding that he had not, specifically approved the rationale of DiPasquale v. Karnuth. Mr. Justice Douglas stated:
* * * in the Smith case it was stated, 232 U.S. p. 425, that “any coming of the alien from a foreign country into the United States whether such coming be the first or any subsequent one” is such an “entry“. But those were cases where
the alien plainly expected or planned to enter a foreign port or place. Here he was catapulted into the ocean, rescued, and taken to Cuba. He had no part in selecting the foreign port as his destination. His itinerary was forced on him by wholly fortuitous circumstances. If, nonetheless, his return to this country was an “entry” into the United States within the meaning of the Act, the law has been given a captious application as DiPasquale v. Karnuth (C.C.A. 2d, N.Y.) 158 F. 2d 878, supra, suggests.
In that case an alien traveled between Buffalo and Detroit on a railroad which, unknown to him, passed through Canada. He was asleep during the time he was in transit through Canada and was quite unaware that he had left or returned to this country. The court refused to hold that the alien had made an “entry“, for to do so would impute to Congress a purpose to subject aliens “to the sport of chance.” 158 F. 2d 879. In this case, petitioner, of course, chose to return to this country knowing he was in a foreign place. But the exigencies of war, not his voluntary act, put him on foreign soil.1 * * *
In Yukio Chai v. Bonham, 165 F. 2d 207 (C.A. 9, December 29, 1947), a case squarely in point arising in the same circuit as respondent‘s case, the court withheld disposition of the case pending the Supreme Court‘s decision in Delgadillo, and then held that a cannery worker in the employ of a Seattle canner, who had been sent to Alaska as a seasonal worker, his transportation both coming and going having been arranged by his employer, had not made an entry into the United States when his vessel, returning from Alaska, had made an unscheduled stop at Victoria, B.C., before landing at Seattle and the alien did not know of the intention of the ship to leave United States waters or of the fact that it had done so. While in the instant case respondent went ashore in Canada to transfer to another ship, the actual knowledge of being in a foreign place or the actual setting foot on foreign soil are not controlling. Delgadillo was ashore a full week in Cuba.
Therefore, from November 1947 until respondent‘s deportation in May 1950, the decision in respondent‘s case could not have withstood judicial attack under the law as it was then (and still is) interpreted. This being the case, a showing of gross miscarriage of justice has been made (cf. Matter of Malone, Int. Dec. No. 1621), and the validity of the deportation order can and must be examined.
Inasmuch as we are compelled to the finding that respondent made no entry in June 1942, we must find that respondent was not at the time of his deportation properly deportable on the warrant charge, as one excludable for having been convicted of a crime prior to entry. Respondent was convicted of a second crime, abducting a female under the age of 18 for the purpose of sexual intercourse or marriage without consent of her legal guardian. We did not make any finding, in our
We must look to the elements of this crime, as defined by the statute, to determine whether it involves moral turpitude. Matter of B—, 6 I. & N. Dec. 98. Under the laws of the State of Washington, the crime of abduction is committed when the female is under the age of 18 years and is taken, with or without her consent, for the purpose of sexual intercourse or, without the consent of her parent or legal guardian, for the purpose of marriage. In the information filed against respondent, both purposes are alleged, in the disjunctive, with no specification as to which was his actual purpose. There was no trial, respondent having pleaded guilty, and the record is bare of any facts to show what respondent‘s purpose actually was. As we have previously held:
We are not permitted to go behind the record to determine just what transpired. Mylius v. Uhl, 203 Fed. 152 (S.D., N.Y., 1913). We must determine in each case that which must be shown to establish the guilt of the alien. Accordingly, the definition of the crime must be taken at its minimum. * * * Matter of B—, 4 I. & N. Dec. 493.
We consider, therefore, whether the crime of abduction for the purpose of marriage is a crime involving moral turpitude. A crime involving moral turpitude has been defined as an act of baseness, vileness and depravity which is morally reprehensible and intrinsically wrong, malum in se (see Matter of P—, 6 I. & N. Dec. 795, and cases therein cited). We do not believe that the taking of a female under the age of 18 for the purpose of marriage, without the consent of her legal guardian, is an essentially depraved, base or vile act, repugnant to natural moral standards. That it is not inherently wrong is demonstrated by the fact that the same act is rendered moral and legal by the consent of the female‘s parent or guardian. We hold that respondent was not convicted of a second crime involving moral turpitude, and was not, by virtue of his convictions, rendered deportable under any section of law in force at the time of his deportation in 1950.
Although we now find that respondent was not properly subject to deportation, he was nevertheless deported and reentered as a nonimmigrant without receiving permission from the Attorney General to reapply for admission after deportation. Also, it might be urged that he would now be excludable on the basis of his conviction for burglary in 1936. Had he not been deported, his status as a resident alien would have continued and none of these disabilities could be urged. We shall therefore exercise our authority to grant to him,
We grant to respondent, nunc pro tunc, the following:
Permission to reapply for admission after deportation;
Waiver of excludability under
Waiver of passport, immigration visa, reentry permit or other documentation, under
With the granting of the above, respondent is not deportable, and these proceedings will be terminated.
ORDER: It is ordered that the decision of the Board, dated November 12, 1946, finding respondent deportable and ordering him deported, be and the same is hereby set aside.
It is further ordered that the decision of the special inquiry officer under date of December 28, 1966, finding respondent deportable as charged, be and the same is hereby set aside.
It is further ordered that the instant proceedings be and the same are hereby terminated.