SCHERBANK
EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—No immigrant visa.
Act of 1952—Section 212(a) (9) [8 U.S.C. 1182 (a) (9)]—Convicted of crime involving moral turpitude prior to entry.
The case comes forward on appeal from the order of the special inquiry officer dated February 7, 1964, finding the applicant inadmissible on the grounds stated above and ordering that he be excluded and deported from the United States.
The record relates to a native and citizen of Canada, 43 years old, male, single, who applied on January 23, 1964, at Port Huron, Michigan, for admission as a returning alien lawfully admitted for permanent residence. He had been admitted as an immigrant at the port of Detroit, Michigan, on January 20, 1960, and has continued to reside in the United. States since that time except for brief absences to Canada.
Deportation proceedings were previously instituted charging the appellant to be subject to deportation under section 241(a) (4) of the Immigrant and Nationality Act by reason of two convictions: on September 12, 1955, obtaining money by false pretense in Algona, Ontario, Canada; and on May 10, 1962, petit larceny in the Cleveland, Ohio Municipal Court. The entry upon which the charges were laid occurred in 1949 as a nonimmigrant prior to the appellant‘s basic entry for permanent admission in 1960. The special inquiry officer ordered the proceedings terminated since only one conviction followed the basis entry and, on certification, the Board of Immigration Appeals on
Counsel contends that the applicant was not seeking to make an “entry” on January 23, 1964, after he departed to Canada on the previous day, citing Rosenberg v. Fleuti, 374 U.S. 449, since he had not on the previous day made a departure “meaningfully interruptive of the alien‘s permanent residence.” It is not believed that the Fleuti case is applicable for reasons which will be set forth more fully below.
The appellant and two others went to Oakville, Ontario, Canada, on or about November 20, 1963, where they were arrested for “cheating at play.”1 They were released on bond and are now awaiting trial on this charge. The appellant on this occasion was also arrested and convicted for having in his possession certain goods on which customs duties had not been paid contrary to section 203(3) of the Canadian Customs Act. (Exh. 6) These goods, included 686 dice and six decks of playing cards. The appellant had previously been convicted on September 12, 1955, in the Magistrate‘s Court, Algona District, Ontario, for the offense of “Obtaining Credit by False Pretenses” contrary to section 304(1) (b) of the Criminal Code of Canada and on May 10, 1962, was convicted in Cleveland Municipal Court, Cleveland, Ohio, for the offense of petty larceny.
The appellant testified that he worked part-time buying and selling clothing and other merchandise for a surplus store. He testified that at the time of his departure on November 20, 1963, he intended to visit his sister in Hamilton. The appellant was unable to offer any explanation as to why the police wanted to look in the trunk of his car which led to the finding of the goods for which he was arrested and convicted. His testimony was that the quantity of the dice comprised samples which he was to show or sell. The special inquiry officer has found that the appellant‘s explanations lack conviction and, based
In construing the term “entry” as used in section 101(a) (13) of the Immigration and Nationality Act, the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449, concluded that it effectuates Congressional purpose to construe the “intent” exception in that definition as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien‘s permanent residence. One of the major factors set forth by the Court relevant to a determination of whether such intent can be inferred, was the purpose of the visit, for if the purpose of leaving the country was to accomplish some object which was itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful. We believe that the purpose of the visit, as found by the special inquiry officer, in the light of all the facts appears not to have been the innocent, casual and brief trip which occurred in the Fleuti case. It is concluded that the second charge in the caption is sustained by the evidence.
The first ground for exclusion in the caption is laid under section 212(a) (20) of the Immigration and Nationality Act (
The record establishes that the respondent is not in possession of a valid immigrant visa or other valid entry document in lieu thereof. There is no evidence that the appellant was granted a waiver under section 211(b) of the Immigration and Nationality Act in connection with this return from Oakville, Ontario, in November 1963. Upon the present record we do not consider the appellant is worthy of the exercise of the discretionary relief contained in section 211(b) of the Immigration and Nationality Act. The appeal from the excluding decision of the special inquiry officer will be dismissed.
ORDER:
It is ordered that the appeal from the excluding decision of the special inquiry officer be and the same is hereby dismissed.