Interim Decision #1291 

MATTER OF DAVER 

In DEPORTATION Proceedings 

A-8599958 

Decided by Board June 11, 1963 

(1) Respondent, a lawful permanent resident of the -United States, who in 1956 

when he was 16 departed with his mother and stepfather to Germany where 

the latter was assigned to a tour of military duty and in 1959 when he was 19 

returned to the U.S. with his parents. again under military orders of his stepfather, did not upon his return make an entry within the meaning of section 

101(a) (13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his 

parents and his departure to and presence in a foreign place was not voluntary 

nor intended by him. 

(2) Therefore, respondent's return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section 

241(a) (4) of the Act on. the basis of his conviction on March 25, 1960, of a 

crime involving moral turpitude. 

Onanes: 

Warrant: Act of 1952--Soction 241(a)(4) [8 ILSA1 1251(a)(4)] —Crime 

within five years after entry—Atrocious assault and battery. 

The ease eoTEAR forward on appeal by the trial attorney from the 

decision of the special inquiry officer dated December 19, 1962 

terminating the proceedings. 

The record relates to a native and citizen of Germany, 23 years old, 

male, single, who originally entered the United States for permanent 

residence on January 9, 1954. On March 25, 1960 in the County 

Court of Ocean County, New Jersey, the respondent was convicted 

of atrocious assault and battery with a knife committed on December 

21, 1959, as more fully set forth in the indictment and was sentenced 

to confinement in the Bordentown Reformatory for an indeterminate 

term. On August 24, 1960 the special inquiry officer found the respondent deportable as charged as one who committed a crime involving moral turpitude within five years after his last entry and was 

sentenced to confinement for a year or more within five years after his 

alleged last entry on August 31, 1959. On January 17, 1962 counsel 

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for the respondent filed a motion for reopening and reconsideration 

on the grounds (1) that there was not sufficient proof .upon which the 

special inquiry officer could properly determine the question of the 

respondent's entry or reentry into the United States; (2) that the 

respondent did not enter or reenter the United States within five years 

of the commission of the crime of atrocious assault and battery on December 21, 1050 ; and (3) that the respondent desired to produce proof 

that his entry into the United States was not an entry pursuant to the 

definition of section 101(a) (13) of the Immigration and Nationality 

Act. On January 25, 1962 the special inquiry officer granted the 

motion to reopen and on November 16, 1962 granted the government's 

motion to reopen in connection with an application for adjustment 

of status under section 245 of the Immigration and Nationality Act. 

According to respondent's birth certificate he was burn on February 

18, 1940 (Ex. 3) at Schweinfurt, Germany although his testimony is 

to the effect that he was born February 18, 1942 (p. 17). We will 

accept the birth certificate as being the correct date of birth. His 

father was killed in the Second World War and his mother married a 

United States citizen, a sergeant in the United States Army in October 

1953. The respondent, his mother and stepfather came to the United 

States in January 1954 when the respondent was admitted for permanent residence. He resided with his stepfather and mother. In 

August or September 1956 the respondent's stepfather was assigned 

to a new tour of duty in Germany and the respondent and his mother 

were included in the orders and accompanied the respondent's stepfather to Germany (Ex. 5). The respondent lived with his stepfather and mother, went to high sehool and to the University of Maryland Extension Branch and returned to the United States in August 

or September 1959 when his stepfather was transferred to this country 

under military orders. The respondent was 16 years of age at the 

time he departed and 19 years of age when he returned. During all 

this period he was an unemancipated minor, in the custody and subject 

to the control of his stepfather. It is believed that the New Jersey 

statute and New Jersey cases cited by the trial attorney confirm the 

conclusion that the respondent, as an unemancipated infant, was 

under a duty to obey the order of his parents;hi this case the 

stepfather. 

The issue in the case is whether the respondent made an entry into 

the United States upon his return from Germany. The term "entry" 

is defined in section 101(a) (13) of the Immigration and Nationality 

Act, 8 U.S.C. 1101 (a) (13) as follows: 

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 

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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: - • • 

In commenting on the exception contained in the latter portion of 

this definition, the framers of the legislation explained that "however, 

for the purpose of determining the effect of a, subsequent entry upon 

the status of an alien who has previously entered the United States 

and resided therein, the preciseness of the term 'entry' has not been 

found to be as apparent." More recently, the courts have departed 

from the rigidity of that rule and recognized that an alien does not 

make an entry upon his return to the United States from a foreign 

country where he had no intent to leave the United States (DiPasguale v. Karnath, 158 F. 2d 878 (2d Cir. 1947)) nor did not leave 

the country voluntarily (Delgada& v. Carmichael, 882 U.S. 388 

(1917) ) ; the bill defines the term "entry" as precisely as practicable, 

giving due recognition to the judicial precedents. Thus any coming 

of an alien from a, foreign port or place or an outlying possession into 

the United States is to be considered an entry, whether voluntary 

or otherwise, unless the Attorney General is satisfied that the 

departure of the alien, other than a. deportee, from this country was 

unintentional or was not voluntary.' 

In the ease of DiPasquale v. Sarnuth,2 it was held that no "entry" 

within the contemplation of the immigration laws had been made by 

an alien who returned to the United States as soon as practicable following an unintended and unwitting departure which occurred when 

the train upon which he was traveling between, points in the United 

States crossed the international border without the alien's knowledge, 

and indeed while he was sleeping. The ease of Daum:1Mo v. Carmie7b143 involved a Mexican alien who had made a. legal entry into the 

United States in 1923, resided here until 1942 when he shipped out as 

a member of the crew of an American merchant ship which was torpedoed and the alien was then taken to Cuba where he remained for 

one week and then was returned to the United States. Deportation 

was sought on the ground that he had been sentenced to imprisonment 

for one year or more because of conviction of a crime involving moral 

turpitude committed within five years after his alleged entry in 1942. 

The Supreme Court reversed the Ninth Circuit Court of Appeals, following with approval the construction placed upon the word "entry" 

1 2 U.S. Code Gong., and Adm. News, 82nd Cong., 2d Seas., p.1683. 

2 158 F.2d 878 (2d Cir. 1917). 

3332 U.S. 388 (1947). 

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by DiPasquale v. Karnuth,4 holding that the alien in that ease did not 

make an entry within the meaning of the immigration laws; refusing 

to attribute to Congress a purpose to make his right to remain here 

dependent on circumstances so fortuitous and capricious as those which 

existed in that case; in effect, holding that where an alien's departure 

to or presence in a foreign country was involuntary, no entry was, in 

law, made upon the alien's return to the United Statee. 

The court in Carmichael v. Devaney,' held that a resident of the 

United States who served in the United States Maritime Service during the, Second World War and who returned to the United States 

after his ship had entered several foreign ports, did not make an 

"entry" within the immigration laws when returning to the United 

States because it was not his voluntary act but the exigencies of war 

which he was a participant that brought him to foreign ports. To 

like effect it has been held that an alien who, while residing in the 

United States, is inducted into the. Armed Forces and during his tour 

of duty serves in a foreign country is regarded as being physically 

present in this country during all of the time. And that his return to 

this country as a member of the Armed Forces does not constitute an 

entry.c • 

It is true that the facts in the present ease differ from those existing in the cited cases which led to the present definition of the term 

"entry" as used in section 101 (a.) (13) of the Immigration and Nationality Act. However, the facts are substantially similar to those 

existing in U.S. ex rel. Valenti v. Karnuth-. 7 That case involves a 

schoolboy of 16 in an American public school who went with his 

teacher and the class for a picnic to a Canadian beach The court 

held that in the decisions on the subject of departure and reentry of 

an alien, there is a necessary implication that the acts of the alien 

were at all times voluntary and free from restraint of any kind, and 

that there was entire liberty on his part to leave or not to leave, to reenter or not to reenter, as he pleased. The court held that the minor 

schoolboy in that case could not possess the freedom of action to decide 

whether or not he would go; he was not a. free agent acting entirely 

of his own volition; he was under compulsion as if he were in the 

schoolroom and was not voluntarily departing from and reentering the 

country within the meaning of the statute; on. the contrary, he was 

under compulsion both when he left for and when he returned from 

such picnic. The compulsion under which the relator may be presumed 

I see 

6 170 F.2d 239 (9th Cir. 1918). 

"Matter of J—M—D—, 7 F. & N. Dec. 105. 

1 F. aupp. 870 (N.D.N.Y., 1982). 

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to have acted serves to distinguish his case from cases where the departure was purely voluntary. 

It is contended that the Valenti case has been repudiated in U.S. 

sw rel. Dombrowski v. Karnuth., 19 F. Supp. 222 (W.D.N.Y., 1937) 

and Dracl&mos v. Hughes, 26 F. Supp. 192, 194 (W.D.N.Y., 1937). 

However, neither of those cases involves a minor and the same answer 

may be made in the tease of U.S. ex rd. Betty v. Day, 23 F. 2d 489, in 

which the reentry of the relator did not occur during minority. The 

principle of the Valenti case, i.e., voluntariness, has been followed in 

a number of administrative deeisions. 8 

In the present ease the respondent departed with his mother and 

stepfather, who was in military service and under order to Germany 

when he was 16 years of age and returned when he was 19 years of 

age. It has been shown that the respondent was an unemanolpated 

minor, under the custody and control of his parents, and he had no 

choice nor was he asked whether he would depart. Under the law 

in the State of New Jersey it was incumbent upon the minor respondent 

to obey the directions of his parents and he was obliged to follow and 

accompany his stepfather when the stepfather so directed. We do not 

reach the question of whether the respondent's stepfather's departure 

under military orders was a factor in the case. What is important 

is that the respondent was under a legal compulsion to follow and 

accompany his parents. Being under such compulsion, his case appears 

to be undistinguishable from U.S. ex rel. Valenti v. Karnuth. 9 It is 

believed that the respondent has established that he falls within the 

exception set forth in section 101(a) (13) of the Immigration and 

Nationality Act in that his departure to a foreign place was not intended by him or his presence in a foreign place was not voluntary. 

It is concluded that at the time of his last return on August 31, 1959, 

the respondent had not in contemplation of law made a reentry. Of 

course, as regards his original entry on January 9, 1954, the definition 

of the term "entry" eliminates the question of voluntariness. The 

appeal will be dismissed. 

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

the decision of the special inquiry officer dated December 19, 1962 

terminating the proceedings be and the same is hereby dismissed. 

'Matter of T—, 4 L & N. Dec. 235 (1951) ; Matter of P—, 5 L & N. Dec. 220 

(1953) ; Matter of C —, 5 1. & N. Dec. 370 (1953) ; unreported Matter of C — N.—, 

A-8410653 (September 30, 1960 motion to reconsider denied January 27, 1961). 

1 F. Supp. 370 (N.D.N.T., 1932). 

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