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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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, 

howevertupon 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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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-Villaobos, 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 Cau668 
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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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