Interim Decision #1337 

llama or SOETERBANK 

In EXCLUSION Proceedings 

A-11682044 

Decided byBoard May 14,1964 

Since appellant's return to the United States from Canada following an overnight visit linked to cheating activities in a gambling game is not within 

Rosenberg v. Fleati, 374 U.S. 449, it constitutes an entry upon which to predicate a ground of exclusion. 

EXCLUDABLE: Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (20)1—No immigrant visa. 

Act of 1952—Sectlan 212(a) (9) [g tun ng2 (a) (9)1—Convicted 

of crime involving moral turpitude prior to entry. 

The case comes forward on appeal from the order of the special inquiry officer dated February 7, 1964, finding the applicant inadmissible 

on the grounds stated above and ordering that he be excluded and 

deported from the United States. 

The record relates to a native and citizen of Canada, 43 years old, 

male, single, who applied on January 23, 1961, at Port Huron, Michigan, for admission as a returning alien lawfully admitted for permanent residence. He had been admitted as an immigrant at the port 

of Detroit, Michigan, on January 20, 1960, and has eontinued to reside 

in the United. States since that time except for brief absences to 

Canada. 

Deportation proceedings were previously instituted charging the 

appellant to be subject to deportation under section 241(a) (4) of the 

Immigrant and Nationality Act by reason of two convictions: on 

September 12, 1955, obtaining money by false pretense in Algona, 

Ontario, Canada; and on May 10, 1962, petit larceny in the Cleveland, 

Ohio Municipal Court. The entry upon which the charges were laid 

occurred in 1949 as a nonimmigrant prior to the appellant's basic entry 

for permanent admission in 1960. The special inquiry officer ordered 

the proceedings terminated since only one conviction followed the basis 

entry and, on certification, the Board of Immigration Appeals on 

522 
Interim Decision #1337 

December 31, 1963, ordered that no change be made in the order of the 

special inquiry officer. The Service filed a motion with the Board to 

reconsider its decision but by letter dated January 24, 1964, the Service 

indicated that inasmuch as it ascertained that the alien left the United 

States, 'was convicted on December 80, 1968, in London, Ontario, for 

violation of Canadian Custom Act and was awaiting an exclusion 

hearing, it was abandoning that motion in view of the circumstances. 

The prior deportation proceedings are not pertinent to the present 

exclusion proceedings in which the principal issue is excludability 

under section 212(a) (9) of the Immigration and Nationality Act and 

in which the petty offense exemption applied for in that section is not 

available because of the commission of more than one said offense. 

Counsel contends that the applicant was not seeking to make an 

"entry" on January 23, 1964, after he departed to Canada on the previous day, citing Rosenberg v. Fleuti, 374 U.S. 449, since he had not 

on the previous day made a departure "meaningfully interruptive of 

the alien's permanent residence." It is not believed that the Fleuti 

case is applicable for reasons which will be set forth more fully below. 

The appellant and two others went to Oakville, Ontario, Canada, 

on or about November 20, 1033, where they were arrested for "cheating 

at play." 1They were released on bond and are now awaiting trial 

on this charge. The appellant on this occasion was also arrested and 

convicted for having in his possession certain goods on which customs 

duties had not been paid contrary to section 203(3) of the Canadian 

Customs Act. (Exh. 6) These goods, included 686 dice and six decks 

of playing cards. The appellant had previously been convicted on 

September 12, 1955, in the Magistrate's Court, Algona District, Ontario, for the offense of "Obtaining Credit by False Pretenses" contrary to section 304(1) (b) of the Criminal Code of Canada and on 

May 10, 1962, was convicted in Cleveland Municipal Court, Cleveland, 

Ohio, for the offense of petty larceny. 

The appellant testified that he worked part-time buying and selling 

clothing and other merchandise for a surplus store. lie testified 

that at the time of his departure on November 20, 1963, he intended 

to visit his sister in Hamilton. The appellant was unable to offer any 

explanation as to why the police wanted to look in the trunk of his 

car which led to the finding of the goods for which he was arrested and 

convicted. His testimony was that the quantity of the dice comprised 

samples which he was to show or sell. The special inquiry officer has 

found that the appellant's explanations lack conviction and, based 

ICanadian Criminal Code (Rev. of 1953-4), Sec. 181: "Cheating at Play. 

Every one who, with intent to defraud any person, cheats while playing a game, 

or In the holding the stakes for a game, or in betting is guilty of an indictable 

offense and is liable to imprisonment for two years." 

523 
Interim Decision #1337 

upon the demeanor of the appellant, comes to the conclusion that the 

purpose of the visit in November 1963 was to fleece by intentional fraud 

and cheating other players in a gambling game. The appellant on 

January 218, 1961, was returning from an overnight visit to Oakville, 

Canada, occasioned by necessity of making a court appearance there in 

connection with a criminal pending case in which he is under indictment for violation of section 181, Criminal Code of Canada, "Cheating 

at play". Thin last trip and attempted entry is linked directly with the 

November 1963 trip which resulted in the arrest for cheating at play 

and Customs conviction. 

In construing the term "entry" as used in section 101(a) (13) of 

the Immigration and Nationality Act, the Supreme Court in Roam 

berg v. Fleuti, 374 U.S. 449, concluded that it effectuates Congressional 

purpube to construe the "intent" exception in that definition es meaning 

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

major factors set forth by the Court relevant to a determination of 

whether such intent can be inferred, was the purpose of the visit, for 

if the purpose of leaving the country was to accomplish some object 

which was 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. We believe that the 

purpose of the visit, as found by the special inquiry officer, in the light 

of all the facts appears not to have been the innocent, casual and brief 

trip which occurred in the Fleuti case. It is concluded that the second 

charge in the caption is sustained by the evidence. 

The first ground for exclusion in the caption is laid under section 

212(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182 

(a) (20) ) in that the applicant, who seeks admission as an immigrant, 

is not in possession of a valid immigrant visa or other valid entry document. The appellant's Form 1-151, alien registration receipt card, 

was returned by the police of Oakville, Ontario to the immigration 

authorities at Detroit, Michigan, on November 27, 1961, with the information that the card was found in an alley at the rear of the hotel in 

that city. (Exh. 8). The appellant submitted an application for the 

issuance of a new alien registration receipt card in lieu of the one which 

he claimed to have lost on or about January 15, 1962. An effort was 

made to return the lost card to the appellant but the letter was not delivered due to a wrong address. The record is somewhat confused but 

apparently appellant did receive at least one new alien registration 

card which he testified that he lost about three months prior to his last 

entry. He knew he had lost the card but intended to make an application to the immigration officer at the time he returned on January 23, 

524 
Interim Decision #1337 

1964, although he did not make any inquiry prior thereto whether he 

would be admitted. 

The record establishes that the respondent is not in possession of 

a valid immigrant visa or other valid entry document in lieu thereof. 

There is no evidence that the appellant was granted a waiver under 

section 211(b) of the Immigration and Nationality Act in connection 

with this return. from Oakville, Ontario, in November 1963. Upon 

the present record we do not consider the appellant is worthy of the 

exercise of the discretionary relief contained in section 211 (b) of the 

Immigration and Nationality Act. The appeal from the excluding 

decision of the special inquiry officer will be dismissed. 

ORDER : It is ordered that the appeal from the excluding decision 

of the special inquiry officer be and the same is hereby dismissed. 

525