VARGAS-BANUELOS
Case Information
MATTER OF VARGAS-BANUELOS In Deportation Proceedings A-13532199
Decided by Board December 6, 1971
(1) Notwithstanding respondent did not accompany the illegal aliens into the United States, deportability is established under section 241 (a) (13), Immigration and Nationality Act, for aiding and abetting aliens to enter illegally, where, in scheming with the aliens in Mexico, he instructed them where to cross the border undetected, told them where to go upon reaching the United States, and arranged for an accomplice to drive respondent's truck to El Paso, Texas to meet them. (2) Respondent, a lawful permanent resident, who initially departed the
United States with the intention of making an innocent, casual and brief
visit in Mexico but who deviated from this intention and embarked upon a
course of conduct contrary to a policy reflected in the immigration laws
(aiding and abetting aliens to enter illegally), thereby transformed the in-
nocent character of his trip. Hence, he does not come within the ambit of
Rosenberg v. Fleuti,
374
U.S.
449 (1963), and upon his return made an
entry upon which to predicate a ground of deportation.
[Yanez-Jacquez v.
INS,
Order : Act of 1952—Section 241(a) ( 13) [8 U.S.C. 1251 ( a) (13 ) ]—Alien who prior to entry, knowingly and for gain, en-
couraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Karl Friedman, Esquire Irving A. Appleman American Bank of Commerce Bldg. Appellate Trial Attorney Suite 405 William E. Weinert El Paso, Texas 79901 Trial Attorney (Brief filed) (Brief filed)
The special inquiry officer found the respondent deportable as tharged in his decision of November 2, 1970. The special inquiry ∎ fficer denied the privilege of voluntary departure as a matter of
R10 law. From the special inquiry officer's order the respondent ap- peals. His appeal will be dismissed.
The record relates to a 41-year-old married male alien, a native and citizen of Mexico, who was admitted to the United States as a lawful permanent resident in 1963. He is charged with having entered the United States on or about April 4, 1970. The respond- ent's testimony was that he went to Mexico on or about April 2, 1970 to offer condolences to the family of a deceased cousin. On or about April 3, 1970 he was approached by four aliens who wished to enter the United States illegally. The respondent ac- cepted money from them and made certain arrangements for them. In connection with this the respondent was found guilty, upon his plea of guilty, in the United States District Court, West- ern District of Texas, El Paso Division, on four counts of viola- tion of 8 U.S.C. 1325 and 18 U.S.C. 2. These violations clearly bring him within the purview of section 241 (a) (13) of the Immi- gration and Nationality Act.
Section 241 (a) (13) of the Immigration and Nationality Act makes deportable any alien who:
prior to, or at the time of 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 Order to Show Cause indicates that the respondent was charged with a violation for conduct occurring prior to entry. The main issue raised by this appeal is whether an entry oc- curred on or about April 4, 1970.
Counsel claims that the special inquiry officer made three erro- neous holdings : (1) that the respondent made an "entry" in April of 1970, (2) that the respondent aided and abetted the aliens in their actual entry into the United States, and (3) that the re- spondent received gain. We shall consider the last two points first.
The contention that there was error in holding that the res- pondnet aided and abetted aliens in their actual entry into the United States is without merit. Counsel evidently takes the posi- tion that section 241 (a) (13) applies only to an alien who has physically brought another alien into the United States. The lan- guage of the statute is not that narrow. At oral argument coun- sel urged that no crime would have been committed had the aliens never entered. This argument is mistaken for two reasons : (1) it is not the fact of a criminal conviction that renders an alien de- portable under section 241 (a) (13), and (2) the statute covers ac- tivity amounting to aiding and abetting another alien to try to enter, as well as to enter. In the present case the special inquiry officer found that the respondent, scheming with the aliens, in- structed them in where to cross the border undetected, told them where to go once they reached the United States, and telephoned a woman accomplice in Denver, Colorado and had her drive to El Paso, Texas to meet the aliens in the respondent's pickup truck. We agree with the special inquiry officer who found that respond- ent's deportability under the charge was established by clear, con- vincing and unequivocal evidence. The special inquiry officer was also correct in accepting a certified copy of the record of convic- tion to support the Government's charge.
The contention that the respondent did not receive gain is like- wise 'without basis. As the special inquiry officer pointed out, there was the admission of the respondent, along with other evi- dence to prove the element of gain. We agree with the special in- quiry officer that the element of gain has been proved by clear, convincing and unequivocal evidence.
Counsel's chief contention is actually a claim that the present
case comes within the ambit of the Supreme Court's decision in
the case of
Rosenberg v. Fleuti,
ject him to the consequences of an "entry" into the country on his return.
Counsel bases this contention upon the fact that the respondent testified that the respondent testified that his purpose for making his visit to Mexico was merely to offer condolences to the family of his deceased cousin. Counsel would have us look only to the re- spondent's intention at the time of departure, disregarding his in- volvement in alien smuggling which apparently developed only after he had reached Mexico.
The facts in the present case closely parallel those in Matte?' of Valencia-Barajas, Interim Decision No. 2001 (BIA, 1969), which involved a lawful permanent resident who went to Mexico for the purpose of visiting his parents, but who also knowingly and for gain aided, assisted and abetted aliens to enter the United States illegally. In that case we held that did not apply, and that there had been an "entry." In commenting upon the alien's con- viction for aiding and abetting the illegal entry of aliens into the
United States, we noted that, "This fact could support an infer- ence that his purpose in departing from the United States was to accomplish an object which is contrary to a policy reflected in our immigration laws." We did not expressly base our decision upon an inference so drawn, but determined only that "In any event, we conclude that the respondent's departure can be regarded as `meaningfully interruptive' of his permanent residence."
We said in another case, Matter of Alvarez-Verduzco, 11 I. & N. Dec. 625 (BIA, 1966), that the Fleuti, doctrine was inapplica- ble to a lawful permanent resident alien who, although he did not go to Mexico for the purpose of buying heroin, did nonetheless at- tempt to bring heroin into the United States in violation of law.
Counsel cites the case of
Yanez-Jacquez v. INS,
The court in Yanez-Jacquez was referring to the factors enu merated in the decision as having a bearing upon whether departure by a resident alien should be interpreted as a meaning- ful interruption of his resident status. One factor was the pur- pose of the visit. As Justice Goldberg said in the majority opin- ion, "... if the purpose of leaving the country is to accomplish some object which is 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 mean- ingful."
The Yanez-Jacquez case is distinguishable from the present case. First of all, the alien in that case was not charged with de- portability under section 241 (a) (13) for having assisted aliens to enter the United States illegally. Secondly, the alien had been is- sued a border crossing identity card and was in the habit of mak- ing twice-weekly crossings into Mexico. The court noted that "Each time, however, he returned to the United States and ap- peared outwardly to regard this country as his permanent resi- dence." The only criminality attached to any of his brief visits to Mexico occurred in connection with the following incident. On one of his trips to Mexico he was assaulted and robbed. The next day, armed with an icepick, he returned to Mexico in a fruitless search for his assailants. The respondent, like the alien in Valcen- cia-Barajas, spura, stands in a different light for he has actually been convicted of a crime involving an object clearly contrary to policies reflected in our immigration laws, namely, the crime of assisting the illegal entry of aliens into the United States. The re- spondent has been charged with deportability under section 241(a) (13). The alien in Yanez-Jacquez was charged with de- portability under an entirely unrelated statutory section. There- fore, we do not apply the Fifth Circuit's holding in Yanez-Jac- quez to the facts of the present case.
In another case,
Caudillo-Villalobos v. INS,
Consequently, we agree with the special inquiry officer that the rule is not applicable to the factual situation found in the present case. We go slightly beyond our holding in Valencia-Bara- jas, supra, and hold that although the respondent may have
departed the United States with the intention of making an nnocent, casual and brief excursion abroad, he deviated from ;his intention and embarked upon a course of conduct contrary to
policy reflected in the immigration laws; and by doing so, he ;hereby transformed the previously innocent character of his trip nto something other than innocent, at least so far as the immi- ;ration laws are concerned. In such a case, the respondent's de- )arture no longer is considered by us as not intended to be dis- - uptive of his resident status. As a result, he now may be ;ubjected to the consequences of an "entry" upon his return. We accordingly accept the finding of the special inquiry officer that le had made an entry and is subject to deportation because of his
violation of section 241 (a) (13) of the Act. We have no alterna- tive but to affirm the decision of the special inquiry officer.
The special inquiry officer denied the respondent the privilege of voluntary departure because he could not establish that he was a person of good moral character for the five-year period as re- quired under section 244 (e) of the Act. The special inquiry officer concluded that the conviction barred, as a matter of law, a find- ing of good moral character by virtue of section 101 (f) (3). We agree with that conclusion.
Hence, the respondent's appeal is without merit and must be dismissed. The following order will accordingly be entered.
ORDER: The appeal is dismissed.