Interim Decision #2923
MATIMIt. OF RUIS
In Deportatioxi Proceedings
A-31199203
Decided by Board September 80, 1982
(1) Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), relates
to any entry made by an alien who fails to submit to inspection.
(2) A lawful permanent resident's deportability for entering without inspection may not
be prevented by his subsequent departure and readmission to the United States upon
presention of an Alien Registration Receipt Card.
(A) The immigration judge improperly terminated deportation proceedings against a lawful permanent resident who entered the 'United States without inspection and subsequently departed and returned with his Alien Registration Receipt Card.
CHARGE:
Order: Act of 1069—Sec. 541(o)(2)(6 1261(a)(0))--Enatered without inspection
ON BEHALF OF RESPONDENT: ON BEHALF F SERVICE:
Vincent Agresti, Esquire Joanna London
56-58 Ferry Street Acting Appellate •
Newark, New Jersey 07105 Trial Attorney
By: Milhollan, Chairman, Maniatis, Dunne, Morris, and Vacca, Board Members
The Immigration and Naturalization Service has appealed from a decision of the immigration judge dated May 28, 1981, terminating the
proceedings against the respondent. The appeal will be sustained and
the record will be remanded to the immigration judge.
The respondent is a 41-year-old native and citizen of Colombia who
was admitted to the United States as a lawful permanent resident on
May 24, 1970. The record reflects that he left this country in order to
return to Colombia and reentered surreptitiously from Mexico on January 4, 1978, in order to accompany his fiancee who was without proper
documentatioh. The respondent was apprehended and on January 9,
1978, was convicted on a plea of guilty for aiding and abetting his fiancee
to make an illegal entry in violation of 18 U.S.C. 2 and 8 U.S.C. 1325.
On September 5, 1978, the Service issued an Order to Show Cause
charging the respondent with deportability under section 241(a)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), for entering
the United States without inspection. The record reflects that the respon-
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Interim Decision #2923
dent departed from the United States on March 24, 1979, and returned
the next day, obtaining admission as a returning resident on the basis of
his Alien Registration Receipt Card (Form 1-151). The respondent claims
that he also went to Colombia on June 10, 1979, and was readmitted on
September 7, 1979.
On March 27, 1979, the respondent appeared for his deportation hearing and denied deportability. During the proceedings, he contended that
he was no longer subject to deportation on the basis of his entry without
inspection because he had subsequently made an entry as a lawful permanent resident:
The immigration judge terminated the proceedings, concluding that
section 241(a)(2) only applied to the last entry made by an alien and that
the respondent's entries in March and September of 1979 with his Form
1-151 eliminated entry without inspection as ground of .deportability.
In reaching this decision, the immigration judge relied on two 1965
cases issued by the Board which were not precedent decisions. Matter of
Romero, A10 553 849 (BIA 'Tune 8, 1965); Matter of Gutierrez, A8 405
405 (BIA. June 11, 1905). From these unpublished cases the immigration
judge reasoned that a h wful permanent resident alien who had entered
without inspection could avoid deportability by making a subsequent
entry with his Form 1-151. He further dismissed the Service's contention that only a new visa application made with full disclosure of the
respondent's entry without inspection would eliminate his deportability.
On appeal, the Service argues that the immigration judge improperly
terminated proceedings because the respondent should not be permitted to thwart the immigration laws by making an entry with his Form
1-151 solely to prevent deportation on the entry without inspection
charge. It is further contended that the immigration judge's reliance on
the unpublished Board cases is misplaced.
The issue before us, whether a deportation charge of entry without
inspection relates only to the alien's last entry, appears to be one of first
impression. The two unpublished Board decisions cited by the immigration judge do not mandate the rdsult sought by the respondent.' First,
in Matter of Rim, A13 197 al (BIA April 25, 1978), the Board withdrew from the relevant language in the two cases, finding it to have
been improvident. Furthermore, the cases did not stand for the proposition that only an alien's most recent entry can be the basis for an entry
without inspection charge. Accordingly, the unpublished decisions cited
by the immigration judge are not controlling on the question before us.
Section 241(a)(2) of the Act provides for the deportation of any alien in
the United States who:
' We note that only decisions designated for publication by the Board serve as precedentsin other'proceedirigs involving the same issue or issues. See 8 C.F.R. 3.1(g).
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Interim Decision #2923
entered the United States without inspection or at any time or place other than as
designated by the Attorney Generator is in the United States in violation of this Act or
in violation of any other law of the United States.
The clear objective of this section is to protect' the integrity of the
boundaries of the United States by requiring every alien to submit to
inspection by immigration officials each time he enters this Country. See
Es parts Callow, 240 F. 212 (D. Colo. 1916); lA C. Gordon and H.
Rosenfield, Immigration Law and Procedure section 4;8b (1982); see
also, H.R. Rep. No. 1377, 82nd Cong., 2d Sess., reprinted in, [1952]
U.S. Code Cong. & Ad. News 1358, 1360. The Iaw requires not only that
aliens be admissible to the United States, but that all entries be made
pursuant to an inspection at an appropriately designated time and place.
This statutory mandate is not satisfied by the fact that an alien may
have been admissible had he properly presented himself for inspection
or that he was subsequently inspected and permitted to enter.
Nothing in the language of section 241(a)(2) indicates that Congress
intended to limit its applicability to the most recent entry made by an
alien. In this regard, we think it significant that, with respect to other
sections of the statute, any entry may provide the basis for depoitation.
See Belfrage v. Kenton,
224 F.2d 803 (2 Cir. 1955); Matter of C-,
4 I&N
Dec. 596 (C.O. 1952, BIA 1953); but see Bonetti v. Rogers,
356 U.S. 691
(1958) (membership in Communist party); Matter of Medina,
15 I&N
Dec. 611 (BIA 1976), affd Medina-Luna v. INS,
547 F.2d 1171 (7 Cir.
1977); Matter of C-,
5 I&N Dec. 370 (BIA 1953) (two crimes involving
moral turpitude); Matter of S-,
7 I&N Dec. 536 (BIA 1957) (failure to
notify Attorney General otiOress); Matter of P-,
5 I&N Dec. 651 (BIA
1 954) (narcotics conviction); see also section 101(a)(13) of the Act, 8
U.S.C. 1101(a)(13). The disposition of Congress to extend, rather than
limit, the applicability of this section is also reflected by the elimination
in the 1952 Act of previous statutory time limitations on deportation
after an entry without inspection. See sections 241(a)(2) and (d) of the
Act; cf. Act of Feb. 5, 1917, sec. 19(a),
39 Stat. 874; see also Barber v.
Hong,
254 F.2d 382 (9 Cir. 1958); Matter of A-,
6 I&N Dec. 540 (BIA
1955). Furthermore, the seriousness with which Congress regarded the
act of entering the:United States without inspection is evidenced by the
fact that criminal penalties have also been provided for the violation of
that offense. See section 275 of the Act, 8 U.S.C. 1325; see also H.R.
Rep. No. 1365, 82nd Cong., 2d Sass. 60, reprinted in, [1952] U.S. Code
Cong. & Ad. 'News 1653, ITA.
With these considerations in mind, we conclude that section 241(a)(2)
of the Act relates to any entry made by an alien who fails to submit to
inspection. Consequently, we find that the respondent's deportability
for entering without inspection is not prevented by the mere fact that he
departed and returned with his Form 1 151. To hold otherwise would be
-
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Interim Decision #2923
to thwart the policies underlying the Act and to provide an opportunity
for aliens to violate our immigration laws with impunity.
We need not decide at this time whether an alien who has entered the
United States without inspection will be forever subject to deportation
in all circumstances.' See generally Matter of Rafipour, 16 I&N Dec.
470 (BIA 1975); Matter of Sanchez,
16 I&N Dec. 363 (BIA 1977); Matter
of R 0 ,
8 I&N Dec. 128 (BIA 1958); Matter of S , supra. Under the
- - -
facts presented in this case, however, we conclude that the immigration judge improperly terminated the proceedings. The respondent
remains deportable for entering without inspection because his subsequent departute and return with a Form 1-151 does not eliminate the
grounds of deportability.
Accordingly, the decision of the immigration judge will be reversed
and the record will be remanded to the immigration judge for further
proceedings.
ORDER: The appeal is sustained. The decision of the immigration
judge is reversed and the record is remanded for further proceedings
consistent with the foregoing opinion and the entry of a new decision.
2 We would note in this regard that the Service has prosecutorial discretion to decline to
pursue the deportation of an alien who has entered the United States without inspection
despite his possession of documents. See Operations Instructions 235.9; see also section
101(a)(13) of the Act. •
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