Interim Decision #1291
MATTER OF DAVER
In DEPORTATION Proceedings
A-8599958
Decided by Board June 11, 1963
(1) Respondent, a lawful permanent resident of the -United States, who in 1956
when he was 16 departed with his mother and stepfather to Germany where
the latter was assigned to a tour of military duty and in 1959 when he was 19
returned to the U.S. with his parents. again under military orders of his stepfather, did not upon his return make an entry within the meaning of section
101(a) (13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his
parents and his departure to and presence in a foreign place was not voluntary
nor intended by him.
(2) Therefore, respondent's return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section
241(a) (4) of the Act on. the basis of his conviction on March 25, 1960, of a
crime involving moral turpitude.
Onanes:
Warrant: Act of 1952--Soction 241(a)(4) [8 ILSA1 1251(a)(4)] —Crime
within five years after entry—Atrocious assault and battery.
The ease eoTEAR forward on appeal by the trial attorney from the
decision of the special inquiry officer dated December 19, 1962
terminating the proceedings.
The record relates to a native and citizen of Germany, 23 years old,
male, single, who originally entered the United States for permanent
residence on January 9, 1954. On March 25, 1960 in the County
Court of Ocean County, New Jersey, the respondent was convicted
of atrocious assault and battery with a knife committed on December
21, 1959, as more fully set forth in the indictment and was sentenced
to confinement in the Bordentown Reformatory for an indeterminate
term. On August 24, 1960 the special inquiry officer found the respondent deportable as charged as one who committed a crime involving moral turpitude within five years after his last entry and was
sentenced to confinement for a year or more within five years after his
alleged last entry on August 31, 1959. On January 17, 1962 counsel
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for the respondent filed a motion for reopening and reconsideration
on the grounds (1) that there was not sufficient proof .upon which the
special inquiry officer could properly determine the question of the
respondent's entry or reentry into the United States; (2) that the
respondent did not enter or reenter the United States within five years
of the commission of the crime of atrocious assault and battery on December 21, 1050 ; and (3) that the respondent desired to produce proof
that his entry into the United States was not an entry pursuant to the
definition of section 101(a) (13) of the Immigration and Nationality
Act. On January 25, 1962 the special inquiry officer granted the
motion to reopen and on November 16, 1962 granted the government's
motion to reopen in connection with an application for adjustment
of status under section 245 of the Immigration and Nationality Act.
According to respondent's birth certificate he was burn on February
18, 1940 (Ex. 3) at Schweinfurt, Germany although his testimony is
to the effect that he was born February 18, 1942 (p. 17). We will
accept the birth certificate as being the correct date of birth. His
father was killed in the Second World War and his mother married a
United States citizen, a sergeant in the United States Army in October
1953. The respondent, his mother and stepfather came to the United
States in January 1954 when the respondent was admitted for permanent residence. He resided with his stepfather and mother. In
August or September 1956 the respondent's stepfather was assigned
to a new tour of duty in Germany and the respondent and his mother
were included in the orders and accompanied the respondent's stepfather to Germany (Ex. 5). The respondent lived with his stepfather and mother, went to high sehool and to the University of Maryland Extension Branch and returned to the United States in August
or September 1959 when his stepfather was transferred to this country
under military orders. The respondent was 16 years of age at the
time he departed and 19 years of age when he returned. During all
this period he was an unemancipated minor, in the custody and subject
to the control of his stepfather. It is believed that the New Jersey
statute and New Jersey cases cited by the trial attorney confirm the
conclusion that the respondent, as an unemancipated infant, was
under a duty to obey the order of his parents ; hi this case the
stepfather.
The issue in the case is whether the respondent made an entry into
the United States upon his return from Germany. The term "entry"
is defined in section 101(a) (13) of the Immigration and Nationality
Act, 8 U.S.C. 1101 (a) (13) as follows:
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
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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: - • •
In commenting on the exception contained in the latter portion of
this definition, the framers of the legislation explained that "however,
for the purpose of determining the effect of a, subsequent entry upon
the status of an alien who has previously entered the United States
and resided therein, the preciseness of the term 'entry' has not been
found to be as apparent." More recently, the courts have departed
from the rigidity of that rule and recognized that an alien does not
make an entry upon his return to the United States from a foreign
country where he had no intent to leave the United States (DiPasguale v. Karnath, 158 F. 2d 878 (2d Cir. 1947)) nor did not leave
the country voluntarily (Delgada& v. Carmichael,
882 U.S. 388
(1917) ) ; the bill defines the term "entry" as precisely as practicable,
giving due recognition to the judicial precedents. Thus any coming
of an alien from a, foreign port or place or an outlying possession into
the United States is to be considered an entry, whether voluntary
or otherwise, unless the Attorney General is satisfied that the
departure of the alien, other than a. deportee, from this country was
unintentional or was not voluntary.'
In the ease of DiPasquale v. Sarnuth,2 it was held that no "entry"
within the contemplation of the immigration laws had been made by
an alien who returned to the United States as soon as practicable following an unintended and unwitting departure which occurred when
the train upon which he was traveling between, points in the United
States crossed the international border without the alien's knowledge,
and indeed while he was sleeping. The ease of Daum:1Mo v. Carmie7b143 involved a Mexican alien who had made a. legal entry into the
United States in 1923, resided here until 1942 when he shipped out as
a member of the crew of an American merchant ship which was torpedoed and the alien was then taken to Cuba where he remained for
one week and then was returned to the United States. Deportation
was sought on the ground that he had been sentenced to imprisonment
for one year or more because of conviction of a crime involving moral
turpitude committed within five years after his alleged entry in 1942.
The Supreme Court reversed the Ninth Circuit Court of Appeals, following with approval the construction placed upon the word "entry"
12 U.S. Code Gong., and Adm. News, 82nd Cong., 2d Seas., p.1683.
2
158 F.2d 878 (2d Cir. 1917).
3
332 U.S. 388 (1947).
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Interim Decision #1291
by DiPasquale v. Karnuth,4 holding that the alien in that ease did not
make an entry within the meaning of the immigration laws; refusing
to attribute to Congress a purpose to make his right to remain here
dependent on circumstances so fortuitous and capricious as those which
existed in that case; in effect, holding that where an alien's departure
to or presence in a foreign country was involuntary, no entry was, in
law, made upon the alien's return to the United Statee.
The court in Carmichael v. Devaney,' held that a resident of the
United States who served in the United States Maritime Service during the, Second World War and who returned to the United States
after his ship had entered several foreign ports, did not make an
"entry" within the immigration laws when returning to the United
States because it was not his voluntary act but the exigencies of war
which he was a participant that brought him to foreign ports. To
like effect it has been held that an alien who, while residing in the
United States, is inducted into the. Armed Forces and during his tour
of duty serves in a foreign country is regarded as being physically
present in this country during all of the time. And that his return to
this country as a member of the Armed Forces does not constitute an
entry.c •
It is true that the facts in the present ease differ from those existing in the cited cases which led to the present definition of the term
"entry" as used in section 101 (a.) (13) of the Immigration and Nationality Act. However, the facts are substantially similar to those
existing in U.S. ex rel. Valenti v. Karnuth-. 7 That case involves a
schoolboy of 16 in an American public school who went with his
teacher and the class for a picnic to a Canadian beach The court
held that in the decisions on the subject of departure and reentry of
an alien, there is a necessary implication that the acts of the alien
were at all times voluntary and free from restraint of any kind, and
that there was entire liberty on his part to leave or not to leave, to reenter or not to reenter, as he pleased. The court held that the minor
schoolboy in that case could not possess the freedom of action to decide
whether or not he would go; he was not a. free agent acting entirely
of his own volition; he was under compulsion as if he were in the
schoolroom and was not voluntarily departing from and reentering the
country within the meaning of the statute; on. the contrary, he was
under compulsion both when he left for and when he returned from
such picnic. The compulsion under which the relator may be presumed
I see
6 170 F.2d 239 (9th Cir. 1918).
"Matter of J—M—D—, 7 F. & N. Dec. 105.
1 F. aupp. 870 (N.D.N.Y., 1982).
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to have acted serves to distinguish his case from cases where the departure was purely voluntary.
It is contended that the Valenti case has been repudiated in U.S.
sw rel. Dombrowski v. Karnuth., 19 F. Supp. 222 (W.D.N.Y., 1937)
and Dracl&mos v. Hughes,
26 F. Supp. 192, 194 (W.D.N.Y., 1937).
However, neither of those cases involves a minor and the same answer
may be made in the tease of U.S. ex rd. Betty v. Day,
23 F. 2d 489, in
which the reentry of the relator did not occur during minority. The
principle of the Valenti case, i.e., voluntariness, has been followed in
a number of administrative deeisions. 8
In the present ease the respondent departed with his mother and
stepfather, who was in military service and under order to Germany
when he was 16 years of age and returned when he was 19 years of
age. It has been shown that the respondent was an unemanolpated
minor, under the custody and control of his parents, and he had no
choice nor was he asked whether he would depart. Under the law
in the State of New Jersey it was incumbent upon the minor respondent
to obey the directions of his parents and he was obliged to follow and
accompany his stepfather when the stepfather so directed. We do not
reach the question of whether the respondent's stepfather's departure
under military orders was a factor in the case. What is important
is that the respondent was under a legal compulsion to follow and
accompany his parents. Being under such compulsion, his case appears
to be undistinguishable from U.S. ex rel. Valenti v. Karnuth. 9 It is
believed that the respondent has established that he falls within the
exception set forth in section 101(a) (13) of the Immigration and
Nationality Act in that his departure to a foreign place was not intended by him or his presence in a foreign place was not voluntary.
It is concluded that at the time of his last return on August 31, 1959,
the respondent had not in contemplation of law made a reentry. Of
course, as regards his original entry on January 9, 1954, the definition
of the term "entry" eliminates the question of voluntariness. The
appeal will be dismissed.
ORDER : It is ordered that the appeal of the trial attorney from
the decision of the special inquiry officer dated December 19, 1962
terminating the proceedings be and the same is hereby dismissed.
'Matter of T—, 4 L & N. Dec. 235 (1951) ; Matter of P , 5 L & N. Dec. 220
—
(1953) ; Matter of C , 5 1. & N. Dec. 370 (1953) ; unreported Matter of C
— — N. ,
—
A-8410653 (September 30, 1960 motion to reconsider denied January 27, 1961).
1 F. Supp. 370 (N.D.N.T., 1932).
308
