Interim Decision *1423 

MAT= or CAT1DILLO-VILIALOBOB 

In Deportation Proceedings 

A-8469070 

Decided by Board January 16, 1966 

A. lawful permanent resident alien, who, following arrest and conviction of a 

crime involving moral turpitude In Mexico, thereafter: on nnmerons occasions departed to Mexico on short visits to appear before the clerk of court 

in that country to report and to sign the bond book, made Von his returns 

from Mexico following such departures entries into the United States within 

the meaning of section 101(a) (18), Immigration and Nationality Act, upon 

which to predicate a ground of deportation (Rosenberg v. i'leutf, 874 U.S. 

449, inapplicable.]• 

Cannot: 

Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Convicted 

of crime involving moral turpitude, incest. 

The case comes forward on appeal by the trial, attorney from the 

decision of the special inquiry officer dated September 14, 1964, ordering that the proceedings be terminated. 

The respondentsa native and citizen of Mexico, 42 years old, male, 

married, last entered the United States on or about January 31, 1963 

and was admitted. as a returning resident alien upon presentation of 

his Form I-151, Alien Registration Receipt Card. He was returning 

after a brief visit with the family that had been involved_ in a criminal matter which will he discussed below. The respondent had been 

admitted for lawful residence as a nonquota immigrant on April 10, 

1953 and he testified that he hid been entering the United. States 

illegally fcir some four years prior to his legal admission. Since his 

lawful admission on April 10, 1953, the respondent had made numerous short visits to Mexico, returning each time upon presentation of 

his Form 1-151. However, he testified. that he was arrested. in the 

month of July 1960 at Jaurez, Mexico, charged with the crime of 

incest and was kept in jail for two months. He was then released on 

•Affirmed: Caudino-VinaTobot v. Immigration and Naturalization Service, 

861 P.2d 829 (CA. 5, 1966): 

35 
Interim Decision 41423 

bond around September 26, 1960 and thereafter reported Weekly to 

the office of the clerk of the Second Penal Court, Jaurez, Mexico to 

sign the bond book and appeared weekly for a period of two or three 

months, thereafter receiving permission to appear not less than once 

per month. The respondent continued to report to the clerk's office 

in Jaurez to sign the bond book until either November 1961 or 

January 1962. 

• On: September 27, 1961 in the Second Penal Court, Jaurez, Chihuahua, Mexico the respondent was convicted of the crime of incest 

and was sentenced to a term of imprisonment of two years and six 

months. On November 22, 1961 the First Penal Branch of the 

Supreme Tribunal of Justice of the State of Chihuahua, Mexico dismissed his .appeal from this conviction. A further appeal in the 

nature of an application for an "emparo" was made by his lawyer 

to a, higher court in Diexico and he testified that the application for 

the "amparo" was dismissed on August 24, 1962, a fact which he first 

learned from an immigration investigator on February 1, 1963 when 

the investigator required him to surrender his Form 1-151. The 

respondent testified that since surrendering this document. he has 

been unable to go to Mexico to consult with his attorney about any 

further action in the criminal case relating to the .conviction for 

incest and has not communicated with his attorney in Jaurez, despite 

the fact that he knows the attorney's °address, and does not know the 

present status of the case. He has testified that except for the two . 

months' imprisonment after his arrest, he has not subsequently 

served any imprisonment as a, result of his sentence for conviction of 

incest. 

In his original order dated June 26, 1063, the special inquiry officor 

found the respondent deportable on the charge contained in the order 

to show cause. The respondent applied for a waiver nano pro tuna 

under section 212(g) of the Immigration and Nationality Act of his 

excludability under section 212(a) (9) of the Act, based upon the 

claim that his exclusion would result in extreme hardship to his citizen wife and citizen daughter whom, he testified, resided with him 

and .were dependent upon him for support. At the hearing the 

respondent alleged that his wife 'and daughter were living with him 

at 1000 East San Antonio Street, Apartment 16, El Paso, Texas. A 

report of investigation with reference to discretionary relief under 

section 212(g) was received into evidence pursuant to stipulation, 

and counsel for the respondent has declined to make application for 

reopening to present evidence that would overcome the adverse matter contained therein (Ex. 7). The report of investigation shows 

16 
Interim Decision *1423 

that the respondent has not lived with his wife for the past 14 

months; that she had instituted divorce proceedings in El Paso early 

in 1957 but did not complete these proceedings because of lack of 

funds; that she and the respondent were reconciled in 1960 and lived 

together until March 1962 when they separated.. She stated that the 

source of their difficulties was that the respondent had a woman and 

daughters in Jaurez, Mexico and spent all of his money on. them. 

Apparently this Mexican. family was involved in the incest case. The 

respondent's -wife stated that he visited her frequently and gave her a 

little money but does not contribute materially to her support; that 

she has worked continuously since 1957 and is employed at a restaurant in El Paso, earning $30.00 a week plus tips; that she supports 

herself and their daughter as well as her divorced" daughter's baby. 

The respondent's wife stated that under the present situation it 

would not constitute an economic detriment to her if the respondent 

were deported. In the exercise of discretion the special inquiry officer 

on the basis of this evidence denied discretionary relief for a nutty 

pro tune waiver under section 212(g) or for voluntary departure. 

On June 27, 1963, the special inquiry officer ordered that his prior 

order and decision entered June 26, 1963, be withdrawn and that the 

hearing be reopened for further consideration in the light of the 

holding in Rosenberg v. Fleuti, 374 U.S. 449 (June 17, 1963). On 

September 14, 1964, the special inquiry officer found that, notwithstanding the respondent's conviction for _incest which became final 

on November 22, 1961, he did not make an "entry" on the occasions.- 

that he returned to the United. States" thereafter following brief 

visits to Juarez, Mexico at weekly intervals which were for .the 

purpose of signing the bond book' in the office of the clerk of thecourt in Juarez and also for the purpose of 'pleasure and to visit 

relatives in that-city; that consequently he fell within the purview 

of Rosenberg v. Fleuti, supra, and ordered that the 'proceedings' be 

terminated. 

The case of Rosenberg v. Fleuti, 374 U.S. 449, 10 Led. 2d 1000, 

concerned an alien who was originally admitted to the United States 

for permanent residence in 1952 and had 'resided here continuously 

except for a brief visit of about a couple of hours in Mexico in 1956 

and was 'ordered to be deported on the ground that at the time of 

his 1956 return he was excludable under section 212(a) (4) of the 

immigration and Nationality Act of 1952 as an alien "afflicted with 

psychopathic personality." The Supreme Court felt it was unnecessary to reach the constitutional question raised by the term "afflicted with psychopathic personality," since under section 101 (a)- 

(13) of the Act an innocent, casual and brief excursion by a resident 
Interim. Decision #1423 

alien outside the borders of the United States mar not have been 

"intended." as a departure disruptive of his resident alien status and 

therefore may not subject him to the consequences of an "entry" into 

the United States on his return. In its decision the Court traced the 

earlier cases which had developed a judicial definition of entry -which 

bad harsh consequences for the alien, the impact of which was lessened by the cases of Di Pasquale v. Sarsuth, and Del Guereio v. 

Delgadalo. 1 The Court pointed out that the holding ofthese cases 

was considered by Congress by defining the term "entry" in' section 

i01(a) (13) of the Immigration and Nationality Act of 1952, 13 

U.S.C. 1101(a) (13) to mean 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 pro,7 

feedings, extradition, or other legal process shall be held to be 

entitled to such exception. 

The Court stated if a foreign trip was innocent, casual and brief, 

it is. consistent with those discernible signs of Congressional purpose 

to hold that the "departure was not intended" within the meaning 

of the ameliorative intent of the exception to section 101(a) (13) of 

the Act and ennelmied that it effectuates Congressional purpose to 

construe the intent exception to section 101(a) (13) as meaning an 

intent to depart in the manner which can be regarded as meaningfully interruptive of the alien's permanent residence. The Court 

• further stated that the major factors relevant to whether such intent 

can be inferred, is the length of time the alien is absent; another, 

1Di Pasquale v. /Lomita, 158 F.2d 818, involved an alien who took an overnight sleeper from Buffalo to Detroit which was routed through Canada and 

the Court held that it could be too ,harsh to impute the carrier's Intent to the 

alian, there being no showing that the alien knew lie would be entering Canada; Delgailino v. Carmichael, 332 U.S. 388 involved an alien who upon rescue after his intercostal merchant ship was torpedoed during World War II 

• had been taken to Cuba to recuperate before returning to this country and 

the Court held that the exigencifts of war and not his voluntary act put the 

alien on foreign soil and the Court refused to attribute to Congress a purpose 

to make the alien's right to remain here dependent on circumstances so fortititons and capricious. .7 
Interim Decision 4t1423 

the purpose of the visit, for if the purpose of leaving the country 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; and that still another was whether the alien had to procure any travel documents to make his trip since the need to obtain 

such dOeurneuts might cause the alien to consider more fully the implications involved in his leaving the country. The Court, observing 

that the operation of these possibly relevant factors remains to be 

developed gy the gradual process of judicial inclusion and exclusion 

held that an innocent, casual and brief excursion by a resident alien 

outside this country's borders may not have been "intended" as a 

departure disruptive of his resident alien status and therefore may 

not subject him to thenconsequences of an "entry" into the country on 

his return:. 

In the instant case the respondent was admitted. for permanent 

residence on April 10, 1953. On one of his numerous trips 'into 

Mexico he was arrested in July 1960, charged with the crime of incest 

and was kept in jail for two months.. It 'may be noted that the type 

and length of- this absenee is not the innocent, casual and brief 

absence that was present in the Fleuti case. On Septeniber 27, 1961, 

he was convicted, his appeal from this conviction was dismissed on 

November 22, 1961 and his application for an "amparo" was dismimed. on August 24, 1962. The exact nature and effect 'of an 

"amparo," are not set forth by the special inquiry officer. However, 

upon the facts, it appears that there exists a final conviction on 

September 27, 1961 for the crime of incest. Thereafter, on numerous 

occasions the respondent was required by the court in Mexico to 

appear before the clerk of the court to report and to sign the bend 

book. All these absences of the respondent were as- a result of the 

legal criminal pro'ceeding arising out of the commission and conviction of the crime of incest. _ 

The definition of the term "entry" contained in section 101(a) (13) 

of the Immigration and Nationality Act of 1952 provides -that the 

"intent" exception shall not be applicable to a person whose departure from the 'United States was occasioned by deportation proceedings, extradition or other legal process. The departures of this 

responclent, --whose departures from the United States were occasioned by legal criminal proceedings, appear to fall squarely within the scope of this proviso. Weltoiicludri that the facts and circumstances of this case vary so much from the facts snd 4circnmstances 

19 
Interim Decision *1423 

in the Flouti case as to render the holding in that case -inapplicable .2 

It is found that the respondent since his conviction on September 27, 

1961, for the offense of incest, 11. Crime involving mural turpitude, 

has been absent on numerous occasions to Mexico and that his returns 

from Mexico constituted entries into the United States. At the time 

of his entries into the United States subsequent to his conviction the 

respondent was excludable under the immigration laws. The charge 

in the order to show cause is sustained. 

The respondent has. made application for a MAW pro tune waiver 

under section 212(g) of the Immigration and Nationality Act based 

upon his citizen wife and child or in lieu thereof for voluntary departure. For the reasons set forth by the special inquiry officer in 

his order of June 26, 1963, to wit, the failure to establish that his 

deportation would result in extreme hardship to his citizen wife and 

daughter and in view of the fraud and deceit revealed in the testimony of the respondent and his wife as shown by an investigator's 

report which showed that they had been separated for the past 14 

months instead of living together as represented, together with the 

fact that he has been convicted of a crime involving moral turpitude 

within the past five years, discretionary relief will be denied. 

ORDER: It is ordered that the appeal of the trial attorney from 

the order of the special inquiry officer dated September 14, 1964, be 

sustained. 

It is further ordered that the application for a waiver slum pro 

taw under section 212(g) of the ground of excludability of the 

respondent at the time of his entry on January 81, 1968, as an alien 

who had been convicted of a crime involving moral turpitude to 

wit, incest, be denied. 

It is further ordered that the application. for voluntary departure 

be denied. 

It is further ordered that the respondent be deported from the 

United States.to Mexico on the charge contained in the order to show 

Callal. 

'Compare Moller of Abt•Rachtd, Int Dee. No.' 1344; Matter of Gaimaret, 

Int. Dee. No 1889; Matter of Hawk:m.1c, Int. Dee. No. 1837. 

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