Interim Decision #2497 

MATTER OF FLORES 

In Deportation Proceedings 

A-11672280 

Decided by Board Apri1•29, 1976; Amended June 24, 1976 

(1) Respondent was found guilty at trial of two counts of aiding and abetting certain aliens 

to enter the lJnited States by a wilfully false and misleading representation of a material 

fact. The aliens, involved testified at the trial and were cross-examined by respondent. 

These aliens were unavailable to testify at respondent's deportation hearing brought 

under section 241(a)(13) of the Immigration and Nationality Act, and a transcript of the 

trial containing the sworn testimony of the aliens was received into evidence. Respondent was found deportable an charged. Where the aliens who had testified at the trial 

were unavailable to testify at the deportation hearing, it was proper to receive the trial 

transcript into evidence at the deporation bearing where a diligent effort had been made 

by the Service to locate the missing aliens prior to the hearing; the respondent had 

cross-examined the missing aliens at the earlier trial; and the deportation hearing 

produced corroborative evidence. 

(2) Evidence of criminal activity which has as its purpose the circumvention of the 

immigration laws will adversely affect an application for discretionary relief in the 

absence of outstanding equities. Where, as here, such equities are lacking, respondent's 

application for the privilege of voluntary departure will be denied as a matter of 

discretion. 

CHARGE: Ad. of 1952—Section 241(a)(13) [8 U.S.C. 1251 (a)(13)1—Prior to entry, 

smuggled aliens into the United States. 

ON BEHALF 0.? RESPONDENT: Lou Sanchez, Esquire 

1725 West Beverly Blvd., Suite 4 

Los Angeles, California 90026 

In a decision dated August 11, 1975, an immigration judge found the 

respondent deportable under secton 241(a)(13) of the Immigration and 

Nationality Act, ordered his deportation, and denied his request for the 

privilege of voluntary departure. The respondent has appealed from 

that decision. The appeal will be dismissed. 

The respondent is a 36-year-old- native and citizen of Mexico. He was 

first admitted to the .United States for permanent residence on February 22, 1919. He last entered the United States .on February 13, 1971. 

Following this last entry, he was stopped by immigration officers while 

driving towards Los Angeles. In the car with him -were his wife and two 

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men whom he claimed he had picked up in Calexico, California in a 

Safeway parking lot. The three men were arrested. The Government 

charged that the respondent provided the two other aliens with documents to enter the United States and promised them transp ortation into 

the interior of the country once they had entered. In return he was to be 

paid $150. On February 18, 1971, five days later, the respondent was 

found guilty of two counts of "aiding and abetting certain aliens to enter 

the United States by a wilfully false and misleading representation of a 

material fact. . . ." He was sentenced to 180 days on each count, the 

sentences to run consecutively. 

The respondent denies both that he aided and abetted the aliens to 

enter or that he was promised any money to do so. The record contains a 

transcript of the trial held before a magistrate in the United States 

District Court for the Southern District of California. This transcript, 

which was received into evidence, includes the sworn testimony of both 

the aliens. They testified that the respondent supplied them with 

"passports" with which to make their entry and that they expected to 

pay him $150 each. The respondent cross-examined both aliens at the 

trial. The aliens did not testify at the deportation hearing because the 

Service was unable to locate either of them although a diligent effort to 

do so was made. 

In two recent cases, the Court of Appeals for the Ninth Circuit 

allowed affidavits by aliens who could not be located at the time of the 

deportation hearing to be admitted into evidence. Although there had 

been no opportunity to cross-examine the missing aliens under oath, a 

diligent effort was made to locate then and there was corroborative 

evidence. Hernandez v. INS, 498 F.2d 919 (C.A. 9, 1974); MartinMendoza v. INS, 499 F.2d 918 (C.A. 9, 1974). 

In this case, not only had a diligent effort been made to locate the 

missing aliens, but also the respondent had cross-examined the aliens at 

the earlier trial and the hearing produced corroborative evidence. The 

record contains both a sworn statement by the direct testimony of the 

respondent's ex-wife stating that the respondent supplied the aliens 

with "passports" and that he was promised $150 each for helping them 

to enter this country. The respondent's ex -wife was cross-examined at 

the deportation hearing both on her testimony and the contents of her 

affidavit. 

We are satisfied that the evidence taken as a whole establishes 

clearly, convincingly, and unequivocally that the respondent knowingly 

and for gain aided and abetted two other aliens to enter the United 

States in violation of law. He is therefore deportable under section 

241(a)(13) of the Act. 

The immigration judge denied the respondent the privilege of voluntary departure on the ground that he could not establish the requisite 

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good moral character within the meaning of sections 101(f)(3) and 101-

(f)(7) of the Act Although he may no longer be statutorily ineligible due 

to the lapse of time since his conviction and confinement, we find it 

unnecessary to reach this issue, as we will deny him the privilege of 

voluntary departure as a matter of discretion. Even if his conviction and 

confinement may not be taken into account in the exercise of discretion. 

Cf. Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967). The respondent 

was convicted of a crime the purpose of which was the circumvention of 

the immigration laws of the United States. In the absence of outstanding equities in his behalf, evidence of involvement in such criminal 

activity will adversely affect an application for discretionary relief. Cf. 

Matter of RcOs, 15 I. & N. Dec. 492 (BIA 1975). 

The respondent .is divorced from his United States citizen wife, although he dces have a brother and sister in this country. He stated that 

he is a butcher; however, he is not now working as such. Any equities in 

his favor are insufficient to outweigh the adverse factors. The privilege 

of voluntary departure will be denied. 

ORDER: The appeal is dismissed. 

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