E-064405.
Decided by Board September 27, 1954.
Deportability — Section 241 (a) (13) of Immigration and Nationality Act — Valid ground of deportation exists thereunder even though acts occurred prior to effective date of the act.
An alien who, on September 17, 1952, encouraged aliens to enter the United States for the purpose of working for him selling pictures on a commission basis at a profit to him of $2 to $3 per picture sold, knowing that the aliens in question had only non-resident alien border-crossing identification cards not valid for the purpose of working in the United States, is deportable under section 241 (a) (13) of the Immigration and Nationality Act. Since respondent had realized a profit on past sales by these aliens (part of the present scheme) and planned to secure further financial remuneration from their future selling activities, he is deportable as an alien who, prior to his own last entry, knowingly and for gain assisted aliens to enter this country in violation of the immigration laws. Even though the conduct which forms the basis for the deportation charge occurred prior to the effective date of the Immigration and Nationality Act, a charge under section 241 (a) (13) of that act is proper.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (13) — Prior to entry, knowingly and for gain encouraged aliens to enter the United States in violation of law.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the special inquiry officer dated September 10, 1953, directing deportation on the charge stated above. Respondent, a 28-year-old native and citizen of Mexico, last entered the United States on January 29, 1953, at El Paso, Texas, upon presentation of a resident alien's border-crossing identification card. His first entry occurred on September 29, 1942, when he came to live permanently with his mother and stepfather. He made another entry in 1944, after spending several months in Mexico.
The instance upon which the warrant charge is founded occurred on September 17, 1952, when respondent allegedly induced aliens A---- N---- M---- and J---- M---- H---- to enter the United States illegally to work for him selling religious pictures on a commission basis. Respondent's reported purpose was to make a profit of $2 or $3 per picture sold by each alien. The aliens in question had local crossing cards, not valid for work here, which fact was allegedly known to respondent.
On September 18, 1952, A---- N---- M---- stated that about two months before, respondent had suggested that he come to the United States to work for the latter; that the respondent supplied the car for the sales activities, although A---- paid his own expenses in general; that the religious pictures retailed for $8.95, $2.00 of which A---- was permitted to keep, while turning over the remainder to respondent; that he had been selling these religious pictures in El Paso, Texas, and Carlsbad, New Mexico, for about two months prior to his apprehension by immigration officers; and that respondent knew that A---- had only a nonresident alien's border-crossing identification card, not good for work in this country; and that A---- concealed his true purpose in coming to the United States, when he made his various entries for selling purposes. J---- M---- H---- made a similar statement on the same date, although he stated that he had worked only about six weeks for respondent selling religious pictures.
On September 18, 1952, respondent testified that he worked for the El Paso Hotel Supply Company at $45 per week, but that he had been selling religious pictures on the side for about 7 or 8 months. Respondent admitted that the aliens in question had been working for him selling religious pictures for two or three months on a commission basis; that he arranged for the entry of these aliens, by supplying them with the car; that after entry, he gave the aliens the pictures to be sold in Carlsbad, New Mexico; that respondent expected the aliens to sell the pictures as his agents and anticipated profits of $2 or $3 per picture sold; and that he knew that the aliens in question had only non-resident alien's border-crossing identification cards, not valid for purposes of working in the United States.
At the warrant hearing, respondent stated that he had car trouble and that one of the aliens had suggested a mechanic in Juarez to whom he took the car for repairs. Respondent said that the following day the aliens went to the garage voluntarily and brought the car back to him in El Paso at his place of business. Respondent testified that upon arrival at his place of employment, the aliens asked if they could use the car for the day and he agreed, although he did not know the purpose or destination they had in mind. Respondent also said that the aliens approached him in El Paso about working for him in this country but denied knowing the status of the aliens in regard to entry or the right to work here.
While respondent originally admitted encouraging A---- and J---- in their illegal entry, in an effort to make a profit on the sale of religious pictures, respondent recently attempted to contradict this testimony. Since the statements of the aliens involved coincide with respondent's original version of this episode, we will accept the respondent's admission of complicity in the enterprise, made September 18, 1952, as reflecting more accurately the true facts in the case.
Section 241 (a) provides as follows:
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — * * *
(13) prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
Under the identically phrased predecessor statute, the Board determined that the word "gain" meant the act of securing monetary advantage or the bringing into this country of aliens for venal or mercenary reasons, resulting from commercial transactions ( Matter of R---- D----, A-2786530, 2 IN Dec. 758, 765 (Atty. Gen., 1947)).
In the present case, respondent obtained certain religious pictures through an importer in Mexico for about $1.25 each. He encouraged the two aliens in question to enter the United States illegally to sell these pictures for him as his agents at a commission of $2 per picture. Hence, since respondent had realized a profit on past sales by these aliens (part of the present scheme) and planned to secure further financial remuneration from their future sales activities, respondent had, prior to his own last entry, knowingly assisted aliens to enter this country, contrary to the immigration laws.
Counsel contends that because the conduct alleged as the basis of deportation occurred on September 17, 1952, or prior to the effective date of the Immigration and Nationality Act of 1952, that section 241 (a) (13) is not applicable to respondent as a ground of deportation existing at the time the acts were committed. However, it is well established that legislation affecting aliens, and especially in deportation, is not invalid if retrospective in operation ( United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950); Mahler v. Eby, 264 U.S. 32 (1924); United States ex rel. Barile v. Murff, 116 F. Supp. 163 (D.C. Md., 1953); Galvan v. Press, 347 U.S. 522 (1954); De Luca v. O'Rourke, 213 F. (2d) 759 (C.A. 8, 1954); Matter of C----, E-076976, 5 IN Dec. 630 (B.I.A., 1954). Cf. Fong Yue Ting v. United States, 149 U.S. 698 (1893); United States ex rel. Kaloudis v. Shaughnessy, 180 F. (2d) 489 (C.A. 2, 1950)).
Furthermore, since the statutory predecessor of section 241 (a) (13) contains identical phraseology, respondent would be in no better condition should the savings clause (section 405 (a)) be relied upon, as counsel suggested. Since respondent was represented by counsel at the warrant hearing and was given full opportunity to present his side of the case, there was no denial of due process, lack of fair hearings, or denial of justice ( United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923); Morgan v. United States, 304 U.S. 1; United States ex rel. Matranga v. Mackey, 115 F. Supp. 45 (S.D.N.Y., 1953)).
The predecessor statute was section 19 (b) (1) of the act of 1917.
Counsel also poses certain objections in regard to the conduct of the hearing. Counsel asserts that the hearing transcript is not an exact one. Since the case involves a language problem, we feel that translations may understandably vary somewhat. But, unless this variance is either marked, or prejudicial (and there is no basis for the latter conclusion), it does not render the proceeding unfair.
Counsel attempts to challenge the knowledge of the Spanish language of an immigration officer who interrogated respondent and the other aliens upon their apprehension. However, the testimony of this immigration officer served to substantiate his claim that his knowledge of the Spanish language was "better than average." In addition, the doctrine of official regularity serves to overcome counsel's objection, unless clear evidence is produced to the contrary. (Cf., Zacharias v. McGrath, 105 F. Supp. 421 (D.C., D. of C., 1952).)
Therefore, it is concluded that the deportation charge under section 241 (a) (13) of the act of 1952 is sustained. The appeal is accordingly dismissed.
It is noted in passing that in Barrios-Macias v. Minton, 114 F. Supp. 470 (W.D. Tex., 1953), cited by counsel, the facts giving rise to the legal conclusion that a smuggling operation existed are not set out.
Order: It is hereby ordered that the appeal be dismissed.