Interim Decision #2279
MATTER OF ACOSTA
In Deportation Proceedings
A-12698629
Decided by Board April 19, 1974
Respondent, a permanent resident alien, who departed to Mexico to sign a bond
book during the pendency of his appeal from a criminal conviction there, and
who upon reporting was taken into custody and imprisoned for approximately
six months, made an entry within the meaning of section 101(a)(13) of the
Immigration and Nationality Act upon which to predicate a ground of
deportation when he returned from Mexico following his imprisonment, since
his departure was occasioned by "legal process", within the proviso to section
101(aX13) of the Act and his six months' imprisonment in Mexico was not a
brief absence. [Rosenberg v. Fieuti, 374 U.S. 499 (1963), inapplicable.]
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of crime
involving moral turpitude committed within five years
after entry.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Victor R. Arditti, Esquire David L. Milhollan
407 Bassett Tower Appellate Trial Attorney
El Paso, Texas 79901
Ina decision dated December 14, 1972, the immigration judge
found the respondent not to be deportable as charged and ordered
the proceedings terminated. The Service has appealed from that
decision. The appeal will be sustained.
The respondent is a male alien, a native and citizen of Mexico,
who was admitted to the United States as an immigrant on May
12, 1961. The record establishes that he was convicted of burglary
in a Texas state court on December 15, 1970. The record of
conviction shows that the crime was committed on September 20,
1970. The respondent was sentenced to confinement for two years
in the Texas state penitentiary.
Burglary is a crime involving moral turpitude. See Matter of
M—, 5 I. & N. Dec. 642 (BIA 1954); Matter of M—G—, 5 L & N. Dee.
531 (BIA 1953); Matter of —, 5 & N. Dec. 383 03IA 1953). The issue
on appeal is whether the crime was committed within five years
after "entry" as specified in section 241(a)(4) of the Act.
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Interim Decision #2279
Although there is some confusion in the record due to conflicting
statements by the respondent, we agree with the immigration
judge's findings of fact. The respondent was convicted of the crime
of "lesiones," or assault, in a court in Juarez, Chihuahua, Mexico
on December 26, 1967, and was sentenced to serve two years and
six months in prison. Prior to his trial, and later pending an appeal
from his conviction, the respondent was released on bail and was
required to report weekly to the clerk of the court in Juarez for the
purpose of signing the bond book.
The respondent made these weekly trips to Juarez for eight or
nine months during 1967 and 1968, returning each time to his
home in El Paso, Texas. Sometime during June or July 1968,
howevert upon making his weekly visit to Juarez, the respondent
was taken into custody and placed in jail to serve his sentence.
Apparently this was the result of the dismissal of his appeal by the
State Supreme Court of Chihuahua on April 6, 1968. The respondent was released from prison in approximately the middle of
December 1968 and returned immediately to El Paso.
It appears that the respondent made one more brief visit to
Mexico on or about January 10, 1969 for the purpose of purchasing
groceries. The immigration judge concluded that the respondent's
return to El Paso after purchasing groceries was not an "entry"
for immigration purposes under the principles laid down in Rosenberg v. Fleuti, 374 U.S. 449 (1963). We agree with this conclusion.
The immigration judge also concluded, under the Fleuti doctrine, that the respondent did not make an "entry" upon returning
to this country after any of his various weekly departures to
Mexico for the purpose of signing the bond book, including the
departure which resulted in his incarceration in a Mexican jail for
six months. We cannot agree with this conclusion.
Section 101(aX13) of the Act provides:
"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 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; Provided, That no person whose departure from
the United States was occasioned by deportation proceedings, extradition, or
other legal process shall be held to be entitled to such exception." (Emphasis
added.)
In Rosenberg v. Fleuti, supra, the Court held that an innocent,
casual, and brief excursion by a resident alien outside the borders
of the United States may not have been "intended" as a departure
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Interim Decision #2279
disruptive of his resident alien status and therefore may not
subject him to the consequences of an "entry" to the United States
upon his return.
The case before us is not within the scope of Fleuti. The
respondent's departure to Mexico to sign the bond book was a
departure occasioned by legal process and as such is squarely
within the proviso to section 101(aX13). Matter of Caudillo Villao-
-
bos, 11 I. & N. Dec. 15 (BIA 1965), affd Caudillo Villalobos v. INS,
-
361 F.2d 329 (C.A. 5, 1966), is directly in point. That case involved a
resident alien who had been arrested and jailed in Mexico for two
months and thereafter was required to report periodically to the
clerk of the court's office in Juarez to sign the bond book. We held
that the Fleuti doctrine was inapplicable to that alien's situation
since (1) his two-month stay in jail was not a brief, casual, and
innocent absence, and (2) his departures from the United States
were occasioned by legal process.
The present respondent knew when he departed for Mexico
after the dismissal of his appeal that he might be taken into
custody and required to serve his sentence. We have held that
where a resident alien departs fur a foreign country knowing that
he may be forcibly detained in that country on a pending criminal
charge, his excursion is meaningfully interruptive of his residence
in the United States. Matter ofWnnd,
12 I. & N. Dec. 170 (BIA 1967).
When an alien returns to this country after making such a departure he makes an "entry" under section 101(aX13). Moreover, since
the respondent in the present case served six months in a Mexican
jail, his absence on that occasion cannot be characterized as "brief'
within the meaning of Fleuti. Matter of Caudilki
Villalobos, supra;
-
cf. Matter of Janati Ataie, Interim Decision No. 2170 (A.G. 1972).
-
The immigration judge concluded that he was bound by the
decisions of the Fifth Circuit Court of Appeals in Yanez Jacquez v.
-
INS, 440 F2d 701 (CA. 5, 1971), and Vargas-Banuelos v. INS, 466
F.2d 1371 (CA. 5, 1972). Those cases are distinguishable. In YttnezJa,cquez the court found that a resident alien's brief departure
from the United States for the purpose of avenging an assault did
not necessarily preclude the application of Fleuti. The opinion
stated that the holding was "necessarily limited to its facts." 440
F.2d at 704. In Vargas Banuelos, the court concluded that a
-
resident alien who left the United States for the purpose of
making a brief condolence call, and who became involved in a
criminal scheme after his departure, was not precluded from
receiving the benefits of Fleuti.
Neither of the above cases controls the present fact situation.
The law controlling the present case is stated in Matter of Cau-
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dillo Villalobos, supra. Our holding in that case has been accepted
-
by the Fifth Circuit. Caudillo Villalobos v. INS, supra.
-
We conclude that the respondent made an `-`entry" as defined in
section 101(a)(13) when he returned from Mexico after serving his
jail sentence. Since that "entry" occurred within the five years
preceding the respondent's commission of a crime involving moral
turpitude, we conclude that he is deportable under section 241(a)(4)
of the Act.
The respondent does not appear to be eligible for any discretionary relief from deportation. He has designated Mexico as the
country to which he is to be deported. We shall sustain the Service
appeal and order the respondent's deportation to Mexico on the
charge contained in the Order to Show Cause.
ORDER: The appeal is sustained.
Further order: The respondent shall be deported to Mexico on
the charge contained in the order to show cause.
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