Interim Decision #2869
MATTER OF CONTRERAS
In Exclusion Proceedings
A-36631574
Decided by Board March 20, 1981
(1) An absence by a lawful permanent resident alien is an interruption of residence if the
attempt to come back to the United States was to accomplish some object which is
itself contrary to some policy reflected in our immigration laws. Fleuti v. Rosenberg.
374 U.S 449 (1963).
(2) Where the issue of whether an absence has been "meaningfully interruptive" within
Fleuti v. Rosenberg, 374 U.S. 449 (1963), has already been determined against the
applicant as the result of a criminal conviction for smuggling aliens, entry and excludability can be litigated in exclusion proceedings. Plascencia v. Sureck,
637 F.2d 1286
(9 Cir. 1980), distinguished.
(3) Where the primary purpose of an alien's departure was to assist an undocumented alien
to surreptitiously enter the United States, for 000, in violation of section E1E(a)(31)
of the Act the alien was making an "entry" into the United States even though he was
absent for only 3 hours.
(4) Smuggling for gain is established when there is a tangible substantial financial advantage
to the alien. Ribeiro v. INS.
531 F.2d 173 (3 Cir. 1976) distinguished.
EXCLUDABLE:
Order. Act of 1952—Sec. 212(a) (31)18 U.S.C. 1182(2)(31)1—Knowingly aiding attempted
illegal entry for gain
ON BEHALF OF APPLICANT: John J. Suter, Esquire
10181 Westminster, Suite 1
Garden Grove, California 92643
By: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
in a decision dated March 20, 1980, an immigration judge found the
applicant excludable under section 212(a)(31) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(31), and ordered his exclusion and
deportation from the United States. The applicant has appealed. The
appeal will be dismissed.
The applicant is a 30-year-old married male alien, a native and citizen
of Mexico. He was admitted to the United States as a lawful permanent
resident on October 18, 1978. On May 6, 1979, the applicant left the
United States and drove to Mexico where he remained for 3 hours. He
then attempted to reenter the United States with a man concealed in
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Interim Decision #2859
the back of his vehicle but the man was discovered at the border. After
being advised of his rights, the applicant then gave a statement to an
immigration inspector in which he stated that he had gone to Mexico to
bring a man into the United States, for a friend who was going to pay
him $100.
On May 7, 1979, the applicant was convicted in United States District
Court for the Southern District of California upon a plea of guilty for
conspiracy to aid and abet the illegal entry of aliens in violation of Title
18 U.S.C. 371, Title 18 U.S.C. 2, and Title 18 U.S.C. 1325. The
applicant's sentence as to imprisonment was suspended and he was
placed on probation for 2 years and fined $150.
Section 212(a)(31) of the Act renders excludable any alien who at any
time shall have, knowingly and for gain, encouraged, induced, assisted,
abetted, or aided any alien to enter or to try to enter the United States
in violation of law.
The immigration judge found that the applicant was making an entry
at the time he was stopped at the border within the meaning of section
101(a)(13) of the Act, 8 U.S.C. 1101(a)(13), and is therefore properly in
exclusion proceedings. The immigration judge found that even though
the applicant was only absent from the United States for 3 hours, his
departure cannot be characterized as innocent, brief, and casual in nature.
The primary purpose for the applicant's departure from the United
States was to assist an undocumentedrr alien to surreptitiously enter the
United States for $100 that was to be paid on his return. Longoria-Castenada v. INS, 548 F.2d 233 (8 Cir. 1977); Cuevas-Cuevas v. INS,
523 F.2d 883 (9 Cir. 1975); Vargas-Banv,elos v. INS,
466 F.2d 1371 (5
Cir. 1972); Matter of Valencia-Barajas,
13 I&N Dec. 369 (BIA 1969).
The ixmnigration judge further found that the applicant had acted "for
gain" within the meaning of section 212(a)(31) of the Act. The applicant
in his sworn statement given on May 21, 1979, stated that he did not
know the man he was to pick up but that he had his name and the hotel
at which he was to meet him written down on a piece of paper. The
applicant further stated that his friend was going to give him $100 to
bring the man in and that he did not know what arrangements were
made between his friend and the man.
Based on the above, the immigration judge concluded that the applicant is excludable from the United States within the provisions of section 212(a)(31) of the Act for having knowingly for gain encouraged,
induced, assisted, abetted, or aided an alien to enter or to try to enter
the United States in violation of the immigration laws.
On appeal, the applicant, through counsel, contends that the Service
has failed to show that he acted for gain and therefore cannot be found
excludable under section 212(a)($1) of the Act.
The first •question presented is whether or not the applicant is prop-
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Interim Decision #2859
erly in exclusion proceedings. We find that he is. In the Ninth Circuit
case of Palatian v. INS, 502 F.2d 1091 (9 Cir. 1974), the court held that
an interruption of residence would properly be regarded as meaningful,
thereby making the attempted return an "entry" within the meaning of
section 101(a)(13) of the Act, if the attempt to come back to the United
States was to accomplish some object which is itself contrary to some
policy reflected in our immigration laws. The facts of the present case
are similar to those in Palatian v. INS, supra. In the instant case, the
applicant was convicted for conspiracy to aid and abet the illegal entry
of aliens in a criminal proceeding. Subsequent to this, exclusion proceedings were commenced under section 212(a)(31) of the Act to determine if
in fact the conduct of the applicant was such to render him excludable.
Further, we find that this case is distinguishable from the facts of the
recent decision of the Ninth Circuit in Plasencia v. &creek,
637 F.2d
1286 (9 Cir. 1980). In this case, the court held that where "the issue in
the case was simply whether, as a matter of law, the undisputed smuggling was or was not an 'entry' within the meaning of Flesh v. Rosenberg,
374 U.S. 449 (1963)," the issue was properly decided in an exclusion
proceeding. The court went on to say that the Plasencia decision only
applies to cases in which a permanent resident is returning from a visit
abroad and the question is whether the visit was "meaningfully
interruptive" of the alien's American residence. In such cases the issues
of "entry" and excludability must be litigated in deportation proceedings.
In the case at hand, as in Palatian, the question of "meaningfully
interruptive" has already been determined as a result of the criminal
conviction. Therefore, according to the decision in Plasencia, the issues
of entry and excludability can be litigated in an exclusion proceeding.
We concur with the finding of the immigration judge that the applicant is excludable under section 212(a)(31) of the Act. The record clearly
establishes that the applicant was detained at the border after attempting to enter the United States with an undocumented alien concealed in
the back of his car. Further, he was convicted in the Federal District
Court upon a plea of guilty for the crime of aiding and abetting an alien
to make an illegal entry into the United States. The applicant's plea of
guilty to the Title 18 U.S.C. 1325 offense establishes the first element
required to show that he knowingly aided and abetted another alien to
enter the United States in violation of law. See Cuevas-Cuevas v. INS,
supra. The applicant's conviction is a matter of record and the immigration judge may not go behind it to make an independent determination
of guilt or innocence. Aguilera-Ertriquez v. INS,
516 F.2d 565 (6 Cir.
1975). The only serious question is whether it was done for "gain" as
required by section 212(a)(31) of the Act and not merely just the bringing in of an alien illegally. This condition has been met when it is clear
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Interim Decision #2859
that the bringing in was not done for either loVe, charity, or kindness,
but for tangible substantial financial advantage. Gallegos v. Hoy, 262
F.2d 665 (9 Cir. 1958). The record clearly establishes that the applicant
was to be paid $100 for this assistance and that he did not know the man
he was to bring into the United States. We agree with the immigration
judge's finding that this payment cannot be characterized as expenses
only. Considering the short distance traveled, the $100 was not a minimal payment. Matter of Arthur,
16 I&N Dec. 558 (BIA 1978).
We further find that the instant case is distinguishable from. Ribeiro
v. INS, 631 F.2d 179 (2 Cir. 1976) in that the Service has shown that the
applicant acted for gain by clear, convincing, and unequivocal evidence.
The $100 was clearly beyond an amount that can be eharacterized_as
reimbursement for expenses incurred. This case is also distinguishable
from Pryee v. INS,
568 F.2d 278 (2 Cir. 1978), in that it isflear'from the
applicant's own testimony that he was to receive the $100.
We conclude, therefore, that the applicant is excludable from the
United States by clear, convincing, and unequivocal evidence. There is
no relief from deportation available to the applicant. Accordingly, the
decision of the immigration judge is affirmed and the appeal will be
dismissed.
ORDER The appeal is dismissed_
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