Interim Decision #1295 

MATTER OF CARDENAB-PINEDO 

In DEPORTATION Proceedings 

A-10720991 

Decided by Board August 12,1963 

.A. lawful permanent resident, upon return to the U.S. following an innocent, 

casual absence to Mexico for a few hours to visit relatives did not make an 

entry upon which to predicate a ground of deportation [Rosenberg v. Mutt, 

374 U.S. 449 (1903)]. (See also, Matter of Yoo, Int. Dec. No. 1305.) 

CHARGES : 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]--Excludable 

as alien convicted of crime involving moral turpitude, theft. 

Lodged : Aet of 1952—Section 241(a) (1) DI U.S.C. 1251(a) (1)3—Excludable 

as alien who admits commission of crime involving moral turpitude, theft. 

The case comes forward pursuant to certification by the special inquiry officer of his order dated June 28, 1963 terminating the 

proceedings. 

The record relates to a native and citizen of Mexico, 25 years old, 

male, married, who was admitted to the United States for permanent 

residence as a nonquota. immigrant on June 25, 1958. Although the 

record of conviction shows that the respondent was convicted on January 18, 1962, it was found that the respondent was in fact convicted 

on November 22, 1961 in the 34th Judicial District Court, El Paso, 

Texas, upon his plea of guilty on the charge of theft of property of the 

value of $50 and over and received a. suspended sentence for a period 

of three years. Although the charge in the order to show cause was 

abandoned because of the decision in Matter of I. & N. Dec. 

318 (Attorney General 1957) the lodged charge based upon the admission of the commission of the crime because of the plea of guilty was 

sustained. For the purposes of this case, we shall consider the lodged 

charge as sustained and shall pass on to a consideration of the primary 

issue raised by the certification. 

The respondent had the status of a resident alien in the United 

States, having been admitted as a nonquota immigrant on June 25, 

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1958. Following that admission he resided in the United States and 

has continued to reside in this country until the present time. His 

wife is a United States citizen and he has three children all of whom . 

 are United States citizens. He has had the same employment in the 

United States since his entry as an immigrant. Following the date 

of his admission as an immigrant, the respondent has made brief visits 

to Mexico. Subsequent to his plea of guilty the respondent has made 

visits of brief duration not exceeding a few hours to visit relatives in 

Mexico, returning thereafter to his home and family here in the 

United States. Inasmuch as the respondent experienced no difficulty 

in entering the United States upon the occasion of each return, it is 

assumed for the purpose of this discussion that he presented the required document,-namely, a Form 1-151 Alien Registration Receipt 

Card. 

The Supreme Court in the recent case of Rosenberg v. Fleuti, 374 

U.S. 449, 10 L. ed. 2d 1000 (June 17, 1963), considered the definition 

of the term "entry" as set out in section 101(a) (13) of the Immigration and Nationality Act in connection with the case of a resident 

alien who returned to the United States after a brief visit in Mexico 

and who it was contended was excludable as an alien afflicted with 

psychopathic personality under section 212(a) (4) by reason of the 

fact that he was a homosexual. As defined in section 101(a) (13) of 

the Immigration and Nationality Act, 8 U.S.C. 1101{a) (13), "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; * * *" 

The court reviewed the history of the judicial definition of the 

term "entry" as expressed most restrictively in U.S. ex rel. Volpe v. 

Smith, 289 U.S. 422, and as relaxed by the holdings in Di Pasquale v. 

Karma, 158 F. 2d 878 (New York) and DeZgadillo v. Carmichael, 

333 U.S. 338;1and referred to the House and Senate Committee Reports preceding enactment of the bill containing the definition . 2The 

court quoted the decisions in Di Pasquale v. Earnuth., and D again° v. 

*Followed in Yukio Mud v. Bonham, 165 P. 2d 207 (9th Cir. 1947) and Carmichael v. Delaney,170 P. 2d 239 (9th Cir. MS). 

'ECM. No. 1385, 82nd Cong., 2d Sens. 32,1952; S.R. No. 1137, 82nd Cong., 2d Sess. 

4 (1952). 

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Interim Decision #1295 

Carmichael, supra in which it was recognized that the "interests at 

stake" for the resident alien are "momentous" and that "the stakes 

are indeed high and momentous for the alien. who has acquired a 

residence here." Combining these statements with the more general 

observation appearing in Delgadillo that "deportation can be the 

equivalent of banishment or exile" it was held that the congressional 

protection of returning resident aliens in seetion. 101(a) (13) was not 

to be woodenly construed. The court therefore concluded that it effectuates congressional purpose to construe the intent exception to 

section 101(a) (13) as meaning an intent to depart in a manner which 

can be regarded as meaningfully interruptive of the alien's permanent 

residence. It enumerated the major factors to whether such intent 

can be inferred as the length of time the alien is absent; the purpose 

of visit, as for example to accomplish some object which itself is contrary to some policy reflected by the immigration laws; and whether 

the alien has to secure any travel documents in order to make his trip. 

The court reached the conclusion 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 the consequences of an 

"entry" into the country on his return. 

In the instant case, the respondent, a permanent resident alien, made 

an innocent, casual and brief excursion to Mexico for a few hours. 

On the occasion of each absence he was going to visit relatives in 

Mexico. On its face, we cannot distinguish the present case from 

the holding in Rosenberg v. Fleuti.3 We conclude that the respondent 

did not "intend" to depart in the sense contemplated by section 101 

(a) (13) and the deportation order cannot stand. The order of the 

special inquiry officer terminating the proceedings will be affirmed. 

ORDER: It is ordered that the order of the special inquiry officer 

dated June 28, 1963 terminating the proceedings be and the same is 

hereby affirmed. 

374 U.S. 449,10 L. ed. 24 1000. 

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