A-6044646
Decided by Central Office September 30, 1948 Decided by Board December 8, 1948
Canadian Indian — Deportability from the United States in expulsion proceedings on grounds other than those arising after entry; to wit: (a) entry within 1 year after previous arrest and deportation, and (b) conviction and commission of crimes involving moral turpitude prior to entry.
(1) An alien, a full-blooded North American Indian born in Canada (a tribal member of a Canadian Indian Band other than by adoption), who is not enfranchised, is not subject to the immigration laws when crossing the border. (See ethnological or "blood" rule laid down in U.S. ex rel. Goodwin v. Karnuth, 74 F. Supp. 660.)
(2) Such an alien is not subject to expulsion from the United States in warrant proceedings on the grounds (a) that he entered the United States in 1946 within 1 year after previous arrest and deportation or (b) that he was convicted of and committed crimes involving moral turpitude (grand larceny, New York, 2 offenses, 1940, 1942) prior to his last entry, since he was not subject to exclusion by virtue of his above designated "Indian" status on either ground when he last entered.
CHARGES:
Warrant: Act of 1917 — Convicted and admits commission of crime prior to entry (grand larceny, 2 offenses).
Act of 1929, as amended — Entered within 1 year after arrest and deportation.
BEFORE THE CENTRAL OFFICE
(September 30, 1948)
Discussion: The respondent in this case is a North American Indian who was born in Dalhousie, New Brunswick, Canada, on April 8, 1920. He is a member of the Eel River Band of Micmac Indians and is so recognized by the Director of Indian Affairs Branch of the Canadian Government. He last entered the United States in May or June 1946, at the port of Detroit, Mich. The respondent was deported to Canada on December 12, 1945, through the port of Niagara Falls, N.Y.
On December 20, 1940, in the county court, Monroe County, N.Y., upon his plea of guilty, the respondent was convicted of grand larceny, first degree, committed on or about November 14, 1940. On October 23, 1942, in the Supreme Court of Steuben County, N.Y. upon his plea of guilty, the respondent was convicted of grand larceny committed on or about June 14, 1942. Larceny is a crime which involves moral turpitude. U.S. ex rel. Chartrand v. Karnuth, 31 F. Supp. 799. D.C.N.Y. 1940.
It will be noted, however, that both of these offenses took place prior to the respondent's last entry. In the case of U.S. ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, the United States District Court for the Western District of New York held that a Canadian-born American Indian is not subject to the excluding provisions of any of the immigration laws. The charge that he is deportable as one who entered within 1 year after arrest and deportation, therefore, is found not to be sustained as the respondent is entitled to cross and recross the border without impediment. However, after his entry into the United States because of these convictions in 1940 and 1942 upon his plea of guilty, the respondent is subject to deportation as one who has been convicted of and admits the commission prior to entry of crimes involving moral turpitude, to wit: Grand larceny (two offenses). Matter of B----, A-5882390, March 25, 1948. Deportation in such a case might appear to be a useless gesture. This may not always follow, however, as these Indians are wards of the Canadian Government and that Government's administration of its Indian laws may be looked to in preventing the burdening of this country with Indians who are deemed unworthy residents of the United States. Matter of A----, 56131/608 (1943).
Findings of Fact: Upon the basis of all the evidence presented it is found:
(1) That the respondent is an alien, a native of Canada, and a North American Indian, a member of the Eel River Band of Micmac Indians.
(2) That the respondent last entered the United States in May or June 1946 at Detroit, Mich.
(3) That the respondent was deported from the United States through the port of Niagara Falls, N.Y. on December 12, 1945, following his arrest in deportation proceedings.
(4) That on December 20, 1940, upon his plea of guilty the respondent was convicted of grand larceny.
(5) That on October 23, 1942, upon his plea of guilty the respondent was convicted of grand larceny.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he has been convicted of and admits the commission prior to entry of a crime involving moral turpitude: Grand larcency (two offenses).
(2) That under section 19 of the Immigration Act of 1917 and section 1 (a) of the act approved 1929, as amended, the respondent is not subject to deportation on the ground that at the time of entry he was a member of a class excluded by law: i.e., an alien who had been arrested and deported in pursuance of law and who reentered the United States before the expiration of one year after the date of his deportation.
(3) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Canada at Government expense.
Because of his criminal record, discretionary relief in the case of this alien would not be justified. He is now serving a sentence of imprisonment in Auburn Prison, Auburn, N.Y. Execution of the warrant of deportation should be deferred until he is released.
Recommendation: It is recommended that the alien be deported to Canada at Government expense on the following charge in the warrant of arrest:
Immigration act of 1917 in that he has been convicted of and admits the commission prior to entry of crimes involving moral turpitude: Grand larceny (two offenses).It is further recommended that execution of the warrant of deportation be deferred until the alien is released from imprisonment.
So ordered.
Discussion: This case presents an appeal from the order of the Service dated September 30, 1948, directing the alien's deportation to Canada on the ground that he has been convicted of and admits the commission prior to entry of crimes involving moral turpitude, to wit, grand larceny and grand larceny.
Appellant is a North American Indian. He was born in Canada on April 8, 1920, and is a member of the Eel River Band of Micmac Indians and is so recognized by the Director of Indian Affairs Branch of the Canadian Government.
In holding that this North American Indian is deportable on said ground, the Service points to the fact that both offenses occurred prior to appellant's last entry and in distinguishing the holding in U.S. ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, stated that the holding in that case was to the effect that a Canadian-born American Indian is not subject to the excluding provisions of any of the immigration laws whereas, in the instant case the action is a result of appellant now being in the United States.
Thus, the issue narrows to whether the appellant is deportable because he is presently in the United States and the evidence establishes that prior to his entry he was convicted of and admitted the commission of the offenses set forth above. As pointed out, appellant last entered the United States in May or June 1946. It must be conceded therefore, that if he were now attempting to enter the United States, he would not be inadmissible as charged. The fact is that the ground upon which appellant's deportation is now sought is the same which existed at the time of his last entry. Thus, we hold that in these North American Canadian Indian cases, a ground of inadmissibility existing at the time of entry does not constitute a cause for deportation.
Such is the situation presented by the case now before us. While there is dictum in the Matter of B----, A-5882390 (Mar. 25, 1948) indicating that a Canadian North American Indian may be deported from the United States for causes arising after entry, even though such action will not have the effect of preventing such a person from recrossing into the United States. ( U.S. ex rel. Goodwin v. Karnuth, 74 Fed. Supp. 660 (D.C.W.D., N.Y., Nov. 28, 1947)), that case involved an appeal from the excluding decision of a Board of Special Inquiry and the appeal was sustained and the alien's entry authorized. Actually then, the present case is nothing more than a belated exclusion process. Accordingly, the appeal will be sustained and proceedings canceled.
Order: It is ordered that the appeal be sustained and that the outstanding order and warrant of deportation be canceled and proceedings closed.