Matter of Favela

Interim Decision #2707

临时决定第2707号

In Exclusion Proceedings

在驱逐出境程序中

A-13577232

A-13577232

In a decision dated November 17, 1978, an immigration judge found the applicant excludable as charged and ordered him deported. The applicant appeals from this decision. The appeal will be diemseeed. The applicant is a 20-year-old native and citizen of Mexico. He was

在1978年11月17日的决定中，一名移民法官认定申请人如所指控的可驱逐出境，并下令将其递解出境。申请人对该决定提出上诉。上诉将被驳回。 申请人是20岁的墨西哥本地人和公民。他于

admitted into the United States as a lawful permanent resident on February 14, 1963, with his parents and brothers and sisters. He was about four years old at that time. He remained in the United States for approximately- two years, at the end of which time he returned to Mexico with his family, where he attended school. He returned to the United States with his father on several occasions following the family's departure from the United States. In 1975, the applicant returned to the United States and obtained employment in a restaurant in Califor- nia for the net two years. On October 5, 1977, as he was attempting to enter the United States after a trip to Mexico, he was stopped at the port of entry at San Ysidro, and arrested. He subsequently was paroled into the United States to stand trial. On November 14, 1977, he was convicted of a, violation of 18 U.S.C. 542, entry of goods by means of false statements. On January 19, 1978, a Notice to Applicant For Ad- mission Detained For Hearing Before Immigration Judge was issued, informing the applicant that he was detained for an exclusion hearing before an immigration judge because he appeared to the immigration officer to be excludable under sections 212(a)(9) and (20) of the Immigra- tion and Nationality Act, 8 U.S.C. 1182(a)(9) and (20). A further notice was issued on October 13, 1978, informing the applicant of his apparent excludability under section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23), as an illicit trafficker in marihuana. An exclusion hearing was held on February 9, 1078, October 27, 1978, and November 3, 1978. The immi- gration judge found that the applicant was excludable under both sec- tion 212(a)(20) and section 212(a)(23) of the Act. The basis of the first finding was that the applicant's father and Mother had both abandoned their lawful permanent resident status in 1965 or 1966, and that this abandonment was imputed to the applicant. The basis of the second finding was that the applicant had admitted his conscious participation in an attempt to smuggle a kilogram of marihuana into the United States. He also concluded that the 'fact that the applicant had been convicted under the Federal Youth Corrections Act did not foreclose a finding of excludability under section 212(a)(23) of the Act, as it per- tained to traffickers, and that a conviction was not required to sustain a finding of excludability. The applicant on appeal simply contends that the immigration judge's decision was incorrect. After reviewing the record, we have concluded that the immigration judge correctly found that the applicant had abandoned his permanent resident status when he returned to Mexico with his parents. The testimony amply showed that the applicant's father had decided not to live in the United States, and that when he returned to Mexico he bought land there and was employed in Tijuana (Tr_ pp. 12, 13, .80). Matter of Sias, 11 I. & N. Dec. 171 (BIA 1965).

1963年2月14日与父母及兄弟姐妹一起作为合法永久居民获准进入美国。当时他约4岁。他在美国停留了大约两年，之后随家人返回墨西哥，并在那里上学。在全家离开美国后，他曾多次随父亲返回美国。1975年，申请人返回美国，并在加利福尼亚州一家餐馆获得工作，持续了接下来的两年。1977年10月5日，他在一次墨西哥之行后试图进入美国时，在San Ysidro入境口岸被拦截并逮捕。他随后被假释进入美国接受审判。1977年11月14日，他因违反18 U.S.C. 542，以虚假陈述方式进口货物而被定罪。1978年1月19日，签发了一份《关于被拘留申请人在移民法官面前听证的入境通知》，告知申请人其被拘留以在移民法官面前进行驱逐出境听证，因为在移民官员看来，他似乎可依据《移民和国籍法》第212(a)(9)和(20)条、8 U.S.C. 1182(a)(9)和(20)被驱逐出境。1978年10月13日又签发了一份通知，告知申请人其似乎可依据该法第212(a)(23)条、8 U.S.C. 1182(a)(23)作为大麻非法贩运者被驱逐出境。驱逐出境听证于1078年2月9日、1978年10月27日和1978年11月3日举行。移民法官认定申请人可依据该法第212(a)(20)条和第212(a)(23)条被驱逐出境。第一项认定的依据是申请人的父亲和母亲均于1965年或1966年放弃了其合法永久居民身份，且该放弃可归责于申请人。第二项认定的依据是申请人承认其明知地参与了一次将1公斤大麻走私进入美国的企图。他还得出结论，申请人根据《联邦青年矫正法》被定罪这一事实并不妨碍依据该法第212(a)(23)条（涉及贩运者）作出可驱逐出境的认定，且维持可驱逐出境的认定并不需要定罪。 申请人在上诉中仅主张移民法官的决定不正确。 在审查记录后，我们得出结论，移民法官正确认定申请人在随父母返回墨西哥时已放弃其永久居民身份。证词充分表明，申请人的父亲已决定不在美国居住，且当他返回墨西哥时，他在那里购买了土地并在蒂华纳受雇（Tr. 第12、13、80页）。Sias案，11 I. & N. Dec. 171（BIA 1965）。

The record also shows that the applicant's mother abandoned her permanent resident status. The testimony established that although she had returned with her husband to Mexico, she made no attempt to return to the United States even after the husband had abandoned the family. This occurred in 1970, although the husband had been living with someone else in Tijuana for five years_ She testified that she could not return without documents, but apparently made no attempt to find the ones the family had, or obtain any, although she was in a border town (Tr. pp. 36-47). The immigration judge found her testimony to be implausible and not worthy of belief. As the trier of fact, his judgment in this regard cannot lightly be set aside. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5 Cir. 1977). We are satisfied that given both the mother's version of events and the immigration judge's evaluation of her testimony, that she did in fact abandon her permanent resident status. Since the parents' abandoment occurred when the applicant was about six years of age, and under their control and custody, this abandonment can be imputed to the applicant in turn. Matter of Winkerts, Interim Decision 2429 (BIA 1975). His testimony that he, when he was so young, intended to return and work in the United States is not credible. The second finding of excludability is grounded on a violation of section 212(a)(23) of the Act. The immigration judge concluded that the applicant was a trafficker in marihuana. We agree with , the immigration judge that the applicant was a conscious participant in an attempt to smuggle a kilogram of marihuana into the United Sties (Tr. pp. 53-57). The quantity was sufficient to find that the applicant was a trafficker, although he appears to have made a single attempt to smuggle marihuana into the United States. Matter of Rico, Interim Decision 2576 (BIA 1977); Matter of P—, 5 I. & N. Dec. 190 (BIA 1953). We also do not agree with the applicant that this finding subverts the Congressional intent behind the Federal Youth Corrections Act. The theory behind the applicant's contention is basically that when a person is brought within this Act, not only the conviction but the underly- ing acts are incorporated into any possible expungement under 18 U.S.C. 5021(b) and that such expungement destroys the conviction as a basis for deportation or exclusion. He contends that since this is the ease, the exclusion proceedings should have been deferred under Opera- tions Instruction 242.1(a)(26) while the possibility of expungement still existed (Tr. pp. 49-50). This Operations Instruction states in part: When the district director determines that there is a probability that an expungement certification will be issued under the Federal Youth Corrections Act .... he shall, for the period during which the expungement certificate may be issued, defer institution of deportation proceedings based on the conviction for which expungement is being sought in Anticipation that the certification will issue.

记录还显示，申请人的母亲放弃了其永久居民身份。证词证明，尽管她随丈夫返回墨西哥，但即使在丈夫抛弃家庭之后，她也未尝试返回美国。此事发生于1970年，尽管丈夫已在蒂华纳与他人同居五年。她作证称没有证件她无法返回，但显然未尝试寻找家庭所持有的证件或获取任何证件，尽管她身处边境城镇（Tr. 第36-47页）。移民法官认定其证词不可信，不值得采信。作为事实认定者，其在此方面的判断不能轻易被推翻。Vasquez-Mondragon诉INS案，560 F.2d 1225, 1226（第5巡回法院1977年）。我们确信，鉴于母亲的陈述和移民法官对其证词的评价，她事实上确实放弃了其永久居民身份。由于父母的放弃发生在申请人约6岁且处于其控制和监护之下时，该放弃又可归责于申请人。Winkerts案，临时决定2429（BIA 1975）。他关于自己年幼时打算返回美国工作的证词不可信。 第二项可驱逐出境的认定基于违反该法第212(a)(23)条。移民法官认定申请人是大麻贩运者。我们同意移民法官的意见，即申请人是明知地参与了一次将1公斤大麻走私进入美国的企图（Tr. 第53-57页）。该数量足以认定申请人为贩运者，尽管他似乎仅实施了一次将大麻走私进入美国的企图。Rico案，临时决定2576（BIA 1977）；P—案，5 I. & N. Dec. 190（BIA 1953）。 我们也不同意申请人所称该认定颠覆了《联邦青年矫正法》背后的国会意图。申请人主张的理论基本上是，当某人被纳入该法时，不仅定罪而且基础行为都被纳入18 U.S.C. 5021(b)下任何可能的撤销定罪之中，且此种撤销定罪破坏了定罪作为递解出境或驱逐出境依据的基础。他主张，既然情况如此，驱逐出境程序本应根据行动指令242.1(a)(26)推迟，同时撤销定罪的可能性仍然存在（Tr. 第49-50页）。该行动指令部分规定： 当地区主任确定有可能根据《联邦青年矫正法》签发撤销定罪证明时……他应在可签发撤销定罪证明的期间内，推迟基于正在寻求撤销定罪的定罪而提起的递解出境程序，以预期该证明将签发。

Interim Decision_ #2707

临时决定第2707号

deportability, proceedings may be deferred. In this instance, the con- viction, which was for violation of 18 U.S.C. 542, entry of goods by means of false statements, did not constitute the basis for the charge under section 212(a)(23) of the Act. This section classifies as excludable a person convicted of narcotics violations or ". . . any alien who the consu- lar officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs." It was under this latter provision that the applicant was found excludable. This provision by its clear terms is entirely distinct from the provision requiring conviction for deportability to be established. While the applicant has expressed the view that the enactment of the Federal Youth Corrections Act showed Congressional interest in not branding youthful offenders for life, it is equally apparent that Congress has shown a strong intent to combat marihuana and narcotics traffic and has imposed harsh sanctions in the immigration law against aliens convicted for, or believed to have been engaged in, this activity. Sections 212(a)(23), (a)(11), 241(b), 244(a) and 244(e) of the Act. While this policy has been attacked as unduly harsh, it has been upheld in the deportation context as not without rational justification_ Guan Chow Tok v. INS, 538 F.2d 36, 38 (2 Cir. 1976). Given the apparent purpose behind these provisions—which nowhere include provisions for different treatment depending on the age of the alien—this Board has held that even where a criminal complaint has subsequently been dismissed, an alien could be excluded under section 212(a)(23) of the Act as a trafficker when the immigration officer had reason to believe that the alien was a trafficker. Matter of Rico, supra. As we pointed out there, the criminal action against the applicant was a separate judicial matter and the administra- tive decision in an exclusion proceeding is predicated upon a review of the evidence of record and the application of the appropriate immigra- tion law. We do not find the present situation substantially distinguishable. In Rico, supra, prosecution was dropped. In this case prosecution and conviction were had for an offense not necessarily including a finding of illicit trafficking in marihuana, but simply entering goods by false state- ments. We found that the lack of a conviction in Rico did not foreclose a finding that the alien was a trafficker, in keeping with the purpose of the immigration law sections dealing with the control of narcotics and marilipana. In this case, the conviction was for an offense not related to marihuana per se. To require the Service to forego proceedings because the conviction exists would be inconsistent with the purpose of the trafficking provision. We find that the trafficking provision of section 212(a)(23) was meant to forestall any such result through its ploin language, although the consequences are severe. See Jay v. Boyd, 051 U.S. 345, 357 (1956).

可驱逐性，程序可以延期。在本案中，该定罪系因违反18 U.S.C. 542，即以虚假陈述方式进口货物，并不构成该法第212(a)(23)条所指指控的依据。该条将因麻醉品违规而被定罪的人，或“. . . 任何领事官员或移民官员知道或有理由相信其是或曾经是上述任何药物非法贩运者之外国人”归类为可排除。申请人正是依据后一规定被认定可排除。该规定按其明确措辞，与要求确立可驱逐性须经定罪的规定完全不同。 虽然申请人表达了这样的观点，即《联邦青年矫正法》的颁布表明国会有意不使青少年罪犯终身蒙受污名，但同样明显的是，国会已表现出打击大麻和麻醉品贩运的强烈意图，并在移民法中对因该活动被定罪或被认为曾从事该活动的外国人施加了严厉制裁。该法第212(a)(23)、(a)(11)、241(b)、244(a)和244(e)条。虽然这一政策被抨击为过于严厉，但在驱逐出境语境中已被维持为并非没有合理依据_Guan Chow Tok v. INS, 538 F.2d 36, 38 (2 Cir. 1976)。鉴于这些规定背后的明显目的——其中没有任何地方包含根据外国人年龄给予不同待遇的规定——本委员会已裁定，即使刑事控告随后被驳回，当移民官员有理由相信该外国人是贩运者时，该外国人仍可依据该法第212(a)(23)条作为贩运者被排除。Matter of Rico, supra。正如我们在那里指出的，对申请人的刑事诉讼是独立的司法事项，而排除程序中的行政决定是以审查记录中的证据和适用适当的移民法为依据的。 我们认为本案情况与上述情况并无实质区别。在Rico, supra中，起诉被撤销。在本案中，起诉和定罪是针对一项未必包含认定非法贩运大麻、而仅仅是虚假陈述进口货物的罪行。我们认定，Rico案中缺乏定罪并不妨碍认定该外国人是贩运者，这符合涉及麻醉品和大麻管制的移民法条款的目的。在本案中，定罪是针对一项本身与大麻无关的罪行。要求移民局因存在定罪而放弃程序，将与贩运条款的目的不一致。我们认定，第212(a)(23)条的贩运条款通过其明确措辞意在防止任何此类结果，尽管后果严重。See Jay v. Boyd, 051 U.S. 345, 357 (1956)。

Interim Decision #2707

临时决定#2707

We consequently conclude that the applicant is excludable under section 212(a)(23) of the Act on the evidence presented in the record, as the immigration officer could reasonably believe that the applicant was an illicit trafficker in marihuana. Hamid v. INS, 538 F.2d 1389, 1391 (9 Cir. 1976). The appeal will accordingly be dismiSsed. ORDER: The appeal is dismissed.

因此，我们根据记录中提交的证据认定，申请人依据该法第212(a)(23)条可被排除，因为移民官员可以合理地相信申请人是大麻非法贩运者。Hamid v. INS, 538 F.2d 1389, 1391 (9 Cir. 1976)。上诉 accordingly 将被驳回。 命令：上诉被驳回。