IN THE MATTER OF A----, 7 IN Dec. 128 (BIA 1956)
MATTER OF A----. In DEPORTATION Proceedings.
A-3015431Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board February 20, 1956
Entry — Within meaning of immigration laws.
(1) Filipino resident of the Hawaiian Islands who signed a contract for employment outside the Islands and who thereupon was sent to Kwajalein, although he may not have specifically known the destination to which he would be sent and may not have been aware that Kwajalein was a foreign place for immigration purposes, made an "entry" within the meaning of the immigration laws upon his return to Hawaii from Kwajalein in November 1951.
(2) Such an alien, having been convicted of counterfeiting in Hawaii in 1934, is, therefore, deportable under section 241 (a) (1) of the Immigration and Nationality Act as having been excludable at the time of entry in November 1951 for conviction of a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1952 — Excludable at entry — Prior conviction of crime — Counterfeiting.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: On May 27, 1955, the special inquiry officer directed the respondent's deportation. Subsequently a motion to reopen and reconsider this decision was filed with the special inquiry officer which was denied by him on September 23, 1955. The case is before us on appeal from the latter decision.
The respondent is a 50-year-old male, native and citizen of the Philippine Islands, whose last arrival in the United States (Hawaii) occurred on November 7, 1951. On August 17, 1934, he was convicted in Hawaii of counterfeiting and was sentenced to imprisonment for two years. The respondent's testimony is to the effect that he first arrived in Hawaii on December 15, 1924, and has since resided there except that about May 1951 he was sent to Kwajalein by his employer, Contractors Mid-Pac, returning to Hawaii on November 7, 1951, which is his last arrival, as stated above.Page 129
We have carefully considered the representations of counsel by brief and the additional contentions which were advanced at the oral argument. One of the latter was that section 8 (a) (1) of the Philippine Independence Act of 1934 did not apply to Filipinos who were then residing in the United States and, hence, the respondent was not an alien on November 7, 1951. While we cannot agree with the premise, that statutory provision appears to have no application to respondent's case because his status on November 7, 1951, is dependent upon the legal effect of the grant of final independence to the Philippines on July 4, 1946.
Counsel also contends that the respondent had a vested right to United States nationality and that Congress did not have the power to take this away. No judicial decisions were cited to support this argument and we must reject it on the authority ofCabebe v. Acheson, 183 F. (2d) 795 (C.A. 9, 1950). We have previously considered that question and held that a citizen of the Philippine Islands, who had not acquired United States citizenship, lost his United States nationality on July 4, 1946, whether residing in the Philippine Islands or in the United States at that time (Matter of M----, E-057339,6 IN Dec. 182 (1954)).
Counsel's contention that the Attorney General readmitted the alien on November 7, 1951, under section 212 (c) of the Immigration and Nationality Act or under prior similar authority is without merit as the record does not show that such authority was then exercised on behalf of the respondent. It seems clear that the immigration officer was not at that time aware of the respondent's conviction for counterfeiting. Counsel's reference to a statement in Kwong Hai Chew v. Colding, 344 U.S. 590,599 (1953), concerning former 8 CFR 175.57 (b) has no application to the respondent as the point involved in that case was whether the alien could be permanently excluded without a hearing.
It is also argued that, if Kwajalein is a foreign place, the respondent is not deportable under a rule which counsel asserts requires "subjective knowledge on the part of the alien that he is going to a foreign port or place and further his going must be a voluntary one." We do not think counsel has correctly stated the rule. We previously considered the matter fully in Matter ofP----, A-4593207, 4 IN Dec 235 (1951), and we there considered the cases of Delgadillo v. Carmichael,332 U.S. 388 (1947), and Carmichael v. Delaney, 170 F. (2d) 239
(C.C.A. 9, 1948), which were cited by counsel. Schoeps v.Carmichael, 177 F. (2d) 391 (C.A. 9, 1949), also cited by counsel, was a case in which the court held that the alien did make an entry upon his return from an absence of less than one day in Mexico. The other two cases cited involved aliens who were on vessels whichPage 130
had stopped for a few hours at a foreign port, the aliens being unaware that the vessels would enter foreign ports.
The effect of the Delgadillo decision has been limited somewhat by section 101 (a) (13) of the Immigration and Nationality Act. However, from the standpoint of the prior legislation, we adhere to the view expressed in Matter of P----,supra, that the conclusion to be drawn from the Delgadillo
line of decisions is that, with the exception of cases in which the absence from the United States or the presence in foreign territory may be said to have been involuntary, any coming of an alien from a foreign country into the United States constitutes an "entry" under the Immigration Act of 1917.
When the respondent signed his contract with Contractors Mid-Pac, he knew that he would be working outside of the Hawaiian Islands although he did not know whether he would be sent to Kwajalein or some other island. Hence, his departure was voluntary and we do not believe he can bring himself within theDelgadillo rule merely on assertions that he did not know specifically that he would be sent to Kwajalein; that he did not know that the Immigration and Naturalization Service considered Kwajalein a foreign place; and that he has always understood that Kwajalein is a part of the United States. We must, therefore, reject this contention.
The remaining argument is that the respondent's arrival in Honolulu on November 7, 1951, was not an entry because (1) Kwajalein is not a foreign place, and (2) there must be an arrival from some foreign port or place in order to constitute an entry within the meaning of the immigration laws. For the latter proposition, counsel relies on Barber v. Gonzales,347 U.S. 637 (1954). However, that case involved a Filipino who came to the United States in 1930 and had never been absent. Since his only arrival occurred prior to the passage of the Philippine Independence Act of 1934, he was at that time a national of the United States and was clearly not then subject to the excluding provisions of the Immigration Act of 1917. Hence, it was held that his arrival in 1930 did not constitute an entry. Since the respondent was no longer a national of the United States at the time of his arrival on November 7, 1951, the decision in Barber
v. Gonzales, supra, is not controlling in his case. Certain statements in Barber v. Gonzales may be considered to be contrary to counsel's position. After referring to the fact that from 1898 until the final independence in 1946 the Philippine Islands were American territory subject to the jurisdiction of the United States, the court indicated at page 642 that the Philippine Islands could be regarded as "foreign" for immigration purposes after the Philippine Independence Act of 1934.
In connection with the other phase of the question, that is, whether Kwajalein is a foreign place, we have carefully considered counsel'sPage 131
argument. The cases cited do not appear to be sufficiently analogous to require specific discussion. Kwajalein is one of the Marshall Islands and is included in a trusteeship agreement for the former Japanese mandated islands which was approved by the United Nations Security Council on April 2, 1947. By a Joint Resolution of Congress on July 18, 1947 (61 Stat. 397) the President was authorized to approve the agreement.
It may well be, as counsel contends, that the United States has full powers of jurisdiction over Kwajalein and other islands covered by the trusteeship agreement. Nevertheless, we believe that the sovereignty of the United States over Kwajalein is less complete than was our sovereignty over the Philippine Islands which were actually a possession of the United States. Yet, as we have stated above, the Supreme Court indicated that the Philippine Islands could be regarded as foreign territory for immigration purposes after the Philippine Independence Act of 1934; section 8 (a) (4) of that act specifically provided that for certain purposes the Philippine Islands should be considered a foreign country; and section 8 (a) (1) provided a yearly immigration quota of 50 for the Philippine Islands. Similarly, under Presidential Proclamation No. 2980 of June 30, 1952 (17 F.R. 6019) the trust territory was designated as area No. 58 with a quota of 100.
While the act of 1917 and not the Immigration and Nationality Act is controlling on the question of whether or not the respondent was excludable on November 7, 1951, it is significant that paragraphs (29) and (38) of section 101 (a) of the latter act make no mention of the trust territory in the definition of "outlying possessions of the United States" or in the definition of "United States." Former 8 CFR 176.101 (b) and former 22 CFR 42.101 (b) effective May 11, 1949 (14 F.R. 2435, 2437), provided that citizens of the trust territory should be treated as aliens for the purposes of the immigration laws. In view of the foregoing, it is our tentative conclusion that the trust territory occupies no higher status under the immigration laws than was the case with respect to the Philippine Islands between 1934 and July 4, 1946, and that Kwajalein may properly be considered a foreign place within the meaning of the immigration laws.
We deem it unnecessary to make any final determination as to whether Kwajalein is a foreign place within the meaning of the immigration laws because we believe that the language of the Immigration Act of 1917 (39 Stat. 874) requires a conclusion that the respondent was excludable when he arrived at Honolulu on November 7, 1951. Section 1 of that act provides, in part, as follows:
* * * That the term `United States' as used in the title as well as in the various sections of this Act shall be construed to mean the United States, and any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone; but if any alien shall leave the Canal Zone or any insular possession of the United States and attempt to enter any other placePage 132
under the jurisdiction of the United States, nothing contained in this Act shall be construed as permitting him to enter under any other conditions than those applicable to all aliens. * * *
It seems clear to us, from the latter portion of the language quoted, that when this respondent left the insular possession (Kwajalein) and attempted to enter another place under the jurisdiction of the United States (Hawaii) he was subject to the excluding provisions of the 1917 act. At that time he was a person who had been convicted of a crime involving moral turpitude. Accordingly, we conclude that the charge stated in the warrant of arrest is sustained.
There are appealing facts in this case. The respondent has resided in Hawaii since reaching the age of 19, a period of 31 years. The conviction which forms the basis for the deportation proceeding, occurred over 20 years ago. There appear to have been one or two minor arrests since that time. The respondent, while working at Kwajalein, was employed under a contract which his employer had with the United States Navy. There appears to be no reason to assume that the respondent was aware that Kwajalein was a foreign place for immigration purposes. Under the circumstances of this case, it would be exceedingly technical to deport this alien merely because of this departure and return to Hawaii in connection with his employment. The record does not indicate that any independent investigation was made to determine whether the respondent has been of good moral character. Since we consider this a necessary prerequisite to the granting of discretionary relief, we will reopen the proceedings in order that such investigation may be made and a report thereof introduced into evidence. If the result of the investigation is favorable to the respondent, there appears to be no reason why the discretionary authority contained in section 212 (c) of the Immigration and Nationality Act may not be exercised nunc pro tunc, thus curing the defect which exists in the entry of November 7, 1951. (SeeMatter of S----, E-094710, 6 IN Dec. 392 (approved by Atty. Gen. Mar. 15, 1955); Matter of F----, E-094511, 6, I.
N. Dec. 537 (1955)).
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn and that the hearing be reopened for further proceedings in accordance with the foregoing.Page 133