Interim Decision # 2019
MATTER OF YANEZ-JAQUEZ
In Deportation Proceedings
A-10532657
Decided by Board January 16, 1970
(1) A conviction of passing a forged instrument which resulted in a suspended sentence and probation under the Texas Code of Criminal Procedure adopted effective January 1, 19661 is a final conviction upon which to
predicate a ground of deportation under section 241(a) (4), Immigration
and Nationality Act, as amended.
(2) A permanent resident alien, fully aware that his Form 1-151 was required for readmission, who, without such Form willfully and deliberately
departed to Mexico for a short visit (the purpose of which was characterized by criminal intent) thereafter returning to the United States by
crossing the dry bed of the Rio Grande approximately one-half mile from
the Service port of entry, thereby attempting to enter without inspection,
made upon his return an entry upon which to predicate a ground of deportation [Rosenberg v. Fleuti, 374 U.S. 449 (1963), inapplicable].*
CHARGE:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251]—Convicted of a
crime involving moral turpitude, to wit, passing a
forged instrument (1968), committed within five
years after entry (1967), and sentenced to confinement therefor in a prison or corrective institution for a year or more.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Albert Armendariz, Esquire Irving A. Appleman
543 Magoffin Avenue Appellate Trial Attorney
El Paso, Texas 79901 Bernabe Q. Maldonado
Trial Attorney
(Brief filed)
This case is before us on appeal from a special inquiry officer's
order of June 16, 1969, directing that the respondent be deported
from the United States to Mexico on the charge contained in the
order to show cause. The appeal will be dismissed.
Overruled. See 440 F.2d 701 (1971).
449
Interim Decision #2019
The record relates to a 24-year-old unmarried male alien, a native and citizen of Mexico, who was admitted to the United States
for permanent residence on July 19, 1955. He was assaulted and
robbed in Juarez, Mexico, on or about May 4 or 5, 1963, following
which he returned to his home in El Paso. The next day, he
armed himself with an ice pick and planned to go back to Juarez
to confront the persons who had robbed him. His mother tried to
dissuade him, and refused to let him have his resident alien border crossing identification card (Form 1-151), which is used in
lieu of a visa to reenter the United States after a temporary visit
abroad, with certain exceptions not here pertinent.
The respondent, on arriving in Juarez, Mexico, did not immediately locate his assailants. He testified that because of the presence in the area of numerous Mexican police, he crossed the dry
bed of the Rio Grande to the American side, where he was sitting
on the river bank watching for his assailants. See Exhibit 4.
United States border patrol officers, who patrol the area along the
river bank, noticed the respondent and took him to the United
States Immigration Service port of entry about half a mile away.
He claimed he was a lawful permanent resident of the United
States. His mother brought his 1-151 to the Immigration Office,
ind satisfied the officials there that the respondent had been lawFully admitted to this country for permanent residence. He was
hen admitted, but was forthwith taken into custody by El Paso
>olice for possession of the ice pick.
On January 11, 1968, in the Fourth Judicial Court, El Paso,
7exas, the respondent was convicted of the offense of passing a
orged instrument, which is a crime involving moral turpitude.
'he respondent was given a two-year prison sentence, suspended,
nd was placed on adult probation for a period of two years. On
une 7, 1968, an order was issued by the same court revoking the
robation and ordering the respondent to serve two years in the
tate Penitentiary, beginning February 23, 1968. He is now servig that sentence?
The respondent's first contention is that the conviction on
hich the Service relies is not of sufficient finality to support an
-der of deportation. In support of this proposition, he relies on
I The record of the respondent's conviction (Ex. 2) shows that the condims of his probation were that he would commit no offense against the
ws of the State of Texas, any other State, or the United States, and that
would make restitution; and that the reason for the revocation of his
obation was that on February 23, 1968, the respondent had passed another
-ged instrument.
450
Interim Decision #2019
the precedent decision rendered by the Attorney General in Matter of L—R--, 7 1. & N. Dec. 318 (1957). We, however, reject
this argument, finding That the decision under reference is not
controlling here, for several reasons.
In the first place, the Texas Code of Criminal Procedure was
revised by the legislature in 1965 and a new Code of Criminal
Procedure was adopted effective January 1, 1966; and the new
code repealed all prior laws relating to criminal procedure, with
certain exceptions which do not include the adult probation and
parole law of 1967 or the suspended sentence law of 1913, which
laws are involved in Matter of L—R--, ante. Second, under the
new code, on facts substantially the same as those involved here,
we upheld the special inquiry officer's order of deportation, for
reasons which are equally applicable here.= Third, any doubts
which might arise on this point are completely dispelled by the
revocation of the respondent's probation and the requirement for
his incarceration in accordance with the original sentence.
The respondent's second contention, which we likewise reject,
is that while the crime which serves as the basis for the respondent's deportation was committed within five years after his return to the United States on May 6, 1963, conviction therefor did
not occur until after the expiration of five years from that date.
We have previously ruled that section 241(a) (4) of the Immigration and Nationality Act renders deportable an alien who commits a crime involving moral turpitude within five years after
entry whether or not the conviction for such a crime occurs
within the five-year period.' The rationale of that decision is
clearly dispositive of all points raised by respondent in support of
his arguments to the contrary in this case. Further discussion of
this aspect of the case is unnecessary.
We also find wanting the respondent's final contention that he
did not make an "entry" into the United States on May 6, 1963
within the contemplation of the decision of the Supreme Court in
the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). The evidence of record, as hereinbcfore summarized, convinces us clearly
and unequivocally, that on May 6, 1963, the respondent was in
.Juarez, Mexico, for a period of one and a half to two hours and
thereafter returned to the United States within the city limits of
El Paso, Texas, by way of crossing the Rio Grande at a point
about one half mile west of the Sante Fe Street Bridge. The evi-
2 Matter of Gonzalez De Lure,
12 I. & N. Dec. 806 (1968).
3 Matter of A—,
6 I. & N. Dec. 684 (1955).
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Interim Decision #2019
deuce of record also definitely demonstrates that the respondent
was fully aware that his Form 1 151 was required for his read-
-
mission into the United States as a returning resident; that by
going to Juarez from El Paso on May 6, 1963, the respondent was
acting against the wishes of his mother who had taken his Form
1-151 from him; and that he thereby willfully and deliberately
subjected himself to the hazards of exclusion upon his return to
the United States on that date. The record further reflects, without any shadow of a doubt, that the purpose of the respondent's
visit to Juarez on the date in question was to get back from his
assailants the watch, which they had stolen from him the prepious day, by means of an aggravated assault, if necessary, with
L deadly weapon, to wit, an ice pick.' Finally, in this connection,
he circumstances surrounding the respondent's visit to Juarez on
/lay 6, 1963, and his return to the United States thereafter, lead
o the inescapable conclusion that, at the time in question, he was
ttempting to enter the United States without inspection, thereby
mdering the Fleuti decision, ante, inapplicable in his case.*
Accordingly, and in view of the foregoing, we conclude that the
?cision of the special inquiry officer should be affirmed. Discreonary relief in the respondent's case is not available.
ORDER: It is ordered that the appeal be and the same is
:reby dismissed.
ee Matter of Scherbank, 10 I. & N. Dec. 522 (BIA, 1964).
'alter of Kolk,
11 I. & N. Dec. 103 (BIA, 1965).
452
