Interim Decision #2439
MATTER OF LEAL
In Exclusion Proceedings
A 31283641
-
Decided by Board October 15, 1975
Respondent, who, following admission to the United States for permanent residence,
departed to Canada with his girlfriend on a one-day trip undertaken expressly in
connection with a scheme whereby she would obtain her immigrant visa through
fraud—a purpose contrary to the immigration laws—did not make an "innocent" and
"casual" departure within the ambit of Rosenberg v.Fleuti„ 374 U.S. 449 (1963). Hence,
his case does not fall within the scope of Maldonado-Sandoval v. INS,
518 F.2d 278
(1975), and upon his return from Canada he sought to make an "entry" within the
meaning of section 101(a)(13) of the Immigration and Nationality Act, upon the basis of
which exclusion proceedings are predicated.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]--Immigrant not
in possession of valid immigrant, visa or other valid
entry document.
ON BEHALF OF APPLICANT: Ralph M. Schelly, Esquire
100 N. LaSalle Street
Chicago, Illinois 60602
This is an appeal from an order of an immigration judge finding the
applicant excludable from the United States on the above grounds, and
directing that he be excluded and deported from the United States_ The
appeal will be dismissed.
The applicant is a 26-year-old married male alien, native and citizen of
Mexico, who was admitted to the United States for permanent resi
dence on November 21, 1973 on the basis of his marriage to Margarita
Oyola, a United States citizen, in Chicago, Illinois on April 7, 1973. On
March 4, 1974, after a one-day trip to Toronto, Canada, he attempted to
reenter the United States as a returning resident. His inspection was
deferred on April 5, 1974 he received notice that he was being held in
exclusion proceedings on the grounds that he may come within section
212(a)(20) of the Immigration and Nationality Act (no valid immigrant
visa) since it appeared that the marriage upon which his visa was based
was not bona Me (Exh. 1).
At the exclusion hearing, at which he was represented by present
counsel, the applicant testified that when he went to Canada on March
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Interim Dec:Sion #2439
3, 1974 he was accompanied by a woman named Maria Rosa Flores, who
was the mother of his child and with whom he was then living (Tr. pp.
12-13). Under questioning by the immigration judge, the applicant
testified furfier that he knew Maria Rosa Flores was going to Toronto
to obtain an immigrant visa on the basis of her marriage to a United
States citizen (Tr. pp. 52-53). The applicant also testified that he never
lived with his United States citizen spouse after their marriage because
she had learned that his "sweetheart," Maria Rosa Flores, was pregnant, although he claimed that he intended to live with his wife and
denied entering into the marriage solely for the purpose of securing
immigration benefits (Tr. pp. 52-53).
Counsel initially moved to terminate exclusion proceedings on the
ground that , the applicant's one-day journey to Toronto was a "brief,
innocent and casual" departure within the meaning of the Supreme
Court's holding inRosenberg v. Monti, 374 U.S. 449 (1963), and thus did
not subject ;he applicant to the consequences of an "entry" under
section 101(a)(13) of the Act upon his attempt to return to the United
States (Tr. pp. 7-8). The immigration judge reserved ruling on the
motion pending the receipt of evidence.
In his decision, entered on January 28, 1975, the immigration judge
concluded that in view of the applicant's testimony that he had been
living with Maria Rosa Flores at the time he obtained his immigrant
visa on the basis of his marriage to Margarita Oyola (Tr. p_ 52, lines
12-13), the visa was thus fraudulently obtained and invalid, rendering
the applicant inadmissible under section 212(a)(20) of the Act. In rejecting counsel's motion to terminate exclusion proceedings, the immigration judge relied on our decision in Matter of Maldonado-Sandoval,
14
I. & N. Dec. 475 (BIA 1974), in which we held that the lawfulness of an
alien's original admission for permanent residence can be questioned in
exclusion proceedings in connection with an application for readmission
to the United States, notwithstanding the Fleuti-type nature of his
departure.
However, subsequent to the immigration judge's decision, the Ninth
Circuit Court of Appeals reversed our decision in
Maldonado-Sandoval,
supra, and hcld that:
"When evidence appears, during an exclusion proceeding that the alien has been
theretofore granted residence status and is seeking to return to the United States after
a brief visit outside the United States, the exclusion proceeding shall be terminated. If
there is also evidence that the alien may have fraudulently secured his residence status,
the Immigration and Naturalization Service can thereupon institute deportation proceedings against him." Maldonado-Sandoval v. INS,
518 F.2d 278 (C.A. 9, 1975).
Although in the above quotation the court speaks of aliens who are
returning from "brief" visits outside the United States, it seems clear
that it is referring to those making Fleuti-type departures, which must
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also be "innocent" and "casual" according to the Supreme Court's language in Rosenberg v. Fleuti, supra, which is quoted by the Court of
Appeals in Maldonado-Sandoval v. INS, supra. We must therefore
decide whether the applicant's one-day trip to Canada, concededly
"brief," can also be characterized as "innocent" and "casual" so as to
bring his attempted return to the United States within the ambit of
Rosenberg v.
Fleuti, supra, and thus within the holding of Maldonado-Sandoval v. INS, supra. We conclude that it cannot. 1
InFleuti the Supreme Court enunciated certain tests for determining
whether an alien's departure reflects an intent to depart in a manner
meaningfully interruptive of his permanent resident status, so that he
would be making an "entry" upon his return. With respect to the
"innocence" of the excursion, the Supreme Court noted that if the
purpose of leaving the United States 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 meaningful, Rosenberg v.
Fleuti, supra.
Applying this criterion to the present case, it is clear that the applicant's trip to Toronto cannot be considered "innocent." By his own
testimony he has implicated himself in a scheme whereby his girlfriend
would obtain her immigrant visa through fraud, and his trip to Canada
with her was undertaken expressly for this purpose. In fact the applicant's testimony establishes that his own immigrant visa was secured
through similar fraudulent means some months earlier. It is therefore
difficult to view his foreign excursion as "casual," either. See Matter of
Valdovinos,
14 I. & N. Dec. 438 (BIA 1973) and Matter of Valencia-Barajas,
13 I. & N. Dec. 369 (BIA 1969).
We therefore find that the applicant was seeking to make an "entry"
into the United States within the meaning of section 101(a)(13) of the
Immigration and Nationality Act when he sought readmission on March
4, 1974, and that the immigration judge properly refused to terminate
exclusion proceedings, although he did so for other reasons previously
discussed. We also concur in the immigration judge's conclusion that the
respondent is excludable from the United States under section 212-
(a)(20) of the Act. The decision of the immigration judge will therefore
be affirmed and the following order will be entered.
ORDER: The appeal is dismissed.
1 We note at this point that the present case did not arise in the Ninth Circuit. Although
we are bound by that Court of Appeals' determination in Maldonado-Sandoval with
respect to cases emanating from that jurisdiction, our finding herein that the applicant
deco not come within the scope of that holding permits us to reserve, for the present, the
question of whether to apply it in cases arising outside of the Ninth Circuit.
479
