United States of America, Plaintiff-appellee, v. Wong Kim Bo, A/k/a Yee Kuk Ho, Etc., Defendant-appellant, 466 F.2d 1298 (5th Cir. 1972)

Wong Kim Bo, a many named person,¹  appeals from his conviction and consequent one year sentence for being found unlawfully in this country after having once been arrested and deported in violation of 8 U.S.C.A. Sec. 1326.²  We are of the view that the Government failed to prove an essential element of the criminal offense-namely, that the defendant was "arrested" as that term is contemplated by the statute-and accordingly we reverse the conviction.

The Facts-Coming and Going and Coming

Desirous of leaving his native Hong Kong, China, in 1959 defendant purchased a Canadian father for the sum of $2200, or more accurately, he acquired certain papers indicating, fraudulently, that he had such a Canadian father and was therefore a Citizen of Canada. On the basis of that Canadian Naturalization Certificate, he entered Canada and obtained a Canadian passport. Subsequently, in 1963, he entered the United States at Portal, North Dakota, as a visitor, but remained in this country substantially beyond the 6 months allowed a non-immigrant visitor.

In September 1968 the defendant went to the Tampa, Florida, office of the Immigration and Naturalization Service to inquire about the detention of his employer, a fellow countryman, and to attempt to secure his release. During that interview, defendant presented his Certificate of Canadian Citizenship and Canadian passport, which due to certain discrepancies³  led the Border Patrol Agent to arrest the defendant for being illegally in the United States.⁴  Although no criminal prosecution was ever brought or contemplated, a Show Cause Order was issued directing the defendant to demonstrate why he was not a deportable alien "in that, after admission as a non-immigrant under Section 101(a) (15) of said Act⁵  you have remained in the United States for a longer time than permitted."

Thereafter, a hearing was held before a Special Inquiry Officer during which the defendant, represented by counsel, admitted his deportability but requested to be granted the privilege of voluntary departure from this country in lieu of deportation.⁶  The Special Inquiry Officer granted that discretionary relief and on January 15, 1969, entered his formal decision ordering that "in lieu of an order of deportation the respondent be granted voluntary departure without expense to the Government on or before February 14, 1969, or any extension beyond such date as may be granted by the district director, and under such conditions as the district director shall direct." The decision further ordered that "if the respondent fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order⁷  shall thereupon become immediately effective: the respondent shall be deported from the United States to Canada on the charge(s) contained in the Order to Show Cause." Importantly, no warrant of deportation (Form I-205) was issued at this or any other point in these proceedings. The effect of the order of January 15 was, therefore, an automatic, self-executing order of deportation if the defendant remained in the country beyond February 14, 1969, without having obtained an extension from the District Director of INS.⁸ 

Foolishly procrastinating until the proverbial last-minute and despite a warning by the INS, the defendant made no effort to secure arrangements for his departure until the last day - February 14, 1969. To his unhappy surprise, if not consternation, when he presented himself at an airport seeking passage out of the country on that day, he was informed that international space was unavailable due primarily to the midseason rush of weekend "jet-setters" seeking refuge from the bitter ravages of the eastern winter in the travel posterpromised sun-kissed Xanadus of distant lands. Recognizing the awkwardness of the predicament, the defendant telephoned his attorney in Miami. The attorney, like the flight space, was not available, so the defendant discussed his problem with the attorney's chief assistant, an interpreter, translator, general clerk and modern day paralegal who had been employed by the law firm for over 16 years specializing in immigration matters such as supervising filing of forms, talking with clients, and consulting with INS officials. This clerk immediately telephoned one of the INS officials in the deportation division⁹  with whom he had had numerous dealings over the years in such matters. According to the Clerk the INS official said, exactly, "It's all right if he leaves on Monday [February 17]." The fact of this reprieve was relayed to the defendant and as suggested by the telephone communication, defendant left the country destined for Nassau on February 17.

The Nassau junket was brief and on February 19 the defendant returned to this country on a non-immigrant visitor's visa (obtained by the use of the purchased Canadian papers of which the INS had carelessly neglected to relieve him) but without obtaining permission from the Attorney General. He was subsequently found in this country, whereupon a criminal investigation was commenced, culminating in the present conviction, sentence and appeal.

The Offense Charged-Return After Arrest and Deportation

Contrary to the advice of the District Director who recommended that the case be dismissed or nolle prossed, the United States Attorney sought to prosecute the defendant under 8 U.S.C. A. Sec. 1326.¹⁰  Carving from the statute the five particular elements ( [i] through [v]) applicable to the facts of this case, the indictment charged that, "on or about September 5, 1969, [defendant], an [i] alien who had theretofore been [ii] arrested and [iii] deported from the United States of America on or about February 17, 1969, [v] without having the Attorney General's express consent to re-apply for admission to the United States, was [iv] found unlawfully in the United States, in the Middle District of Florida; in violation of Section 1326, Title 8, United States Code.¹¹ 

It is readily apparent that there are at least five elements to the particular offense charged which the government must prove in order to obtain a conviction: [i] that defendant was an alien, [ii] and [iii] that he was "arrested" and "deported" as those terms are contemplated by the statute, [iv] that he was subsequently found within this country, and [v] that he did not have consent from the Attorney General to reapply for admission. Elements (i), (iv), and (v) are not in dispute and the gravamen of defendant's argument is that he was neither "arrested" nor "deported" within the meaning of the statute.¹²  Since we determine that he must prevail on the "arrest" issue we need not determine the question of whether or not he was in fact deported or whether his exodus from the country was under the aegis of voluntary departure.

Arrest-Statutory Interpretation in a Vacuum

The statute, at least that part of it involved here, imposes criminal sanctions for re-entry without the Attorney General's permission only when the alien has previously been " [ii] arrested and [iii] deported". The problem is, what kind of "arrest" is contemplated by this statute? That inquiry turns on reasoning why Congress would require both "arrest and deportation" instead of mere deportation alone to trigger the criminal sanctions. A preliminary understanding of INS procedures is necessary at this point.

"Every proceeding to determine the deportability of an alien in the United States is commenced by the issuance and service of an order to show cause by the services." 8 CFR Sec. 242.1. At the time of the issuance of the show cause order, or at any time thereafter, the district director may issue a warrant for the arrest of the alien. "However, such warrant may be issued by no one other than a district director, acting district director, or deputy district director, and then only whenever, in his discretion, it appears that the arrest of the respondent is necessary or desirable." 8 C.F.R. Sec. 242.2¹³  and 8 U.S.C.A. Sec. 1252(a). If the hearing on the show cause order before the Special Inquiry Officer results in a determination of deportability and a denial of discretionary voluntary departure in lieu of deportation and after exhaustion, waiver or expiration of time for appellate review, an order of deportation issued by the Special Inquiry Officer or the Board of Immigration Appeals becomes final. 8 C.F.R. Sec. 243.1. Thereafter, but only if voluntary departure is denied or the deportation aspect of the Special Inquiry Officer's order becomes otherwise operable, as for example, by failure to voluntarily depart as arranged,¹⁴  a Warrant of Deportation of the alien (INS Form I-205) is issued directing any officer or employee of the INS to "take into custody and deport the said alien pursuant to law * * *." (Emphasis added). The issuance of a Warrant of Deportation is mandatory under 8 C.F.R. Sec. 243.2¹⁵  unless the alien has been granted the privilege of voluntary departure, in which case he is not "deported" at all. At this point the alien is served either personally or by certified mail with Form I-294 (Appendix A) informing him in his native tongue of the penalties which can be imposed should he return to this country after deportation without obtaining permission from the Attorney General. Normally the custody of the alien is secured by sending him a notice to surrender for deportation (Form I-166-Appendix B) and voluntary surrender at the time and place described, rather than by a traditional, formal "arrest".

It is therefore apparent that INS procedures provide for two kinds of arrests-(i) the Sec. 242.2 pre-hearing discretionary arrest or (ii) the Sec. 243.2 mandatory arrest directed by the Warrant of Deportation. Our question is, to which of these "arrests" does the criminal statute refer? We are of the view that the statute contemplates the latter situation.

Initially we observe that were the fact of deportation alone intended by Congress to satisfy the statute, the term "arrest and" would be surplusage. Obviously Congress intended that some further showing must be made before criminal sanctions attach to reentry into this country without the approval of the Attorney General after deportation.

Why should Congress require more? Certainly once a determination is made that an alien should not remain in or enter this country, Congress intends that the alien should not reenter without permission of the Attorney General. Clearly, criminal sanctions are appropriate to effectuate this policy. On the other hand, Congress might understandably hesitate to impose criminal sanctions for reentry where the alien does not know or realize that he has been officially ordered deported. The arrest of an alien after an order of deportation has become final provides great assurance that the alien understands that he is being officially deported. Although there is no legislative history relating to the "arrest and deportation" language here in issue, the extensive House Report on the Immigration and Nationality Act of 1952 clearly indicates a Congressional preoccupation with procedural fairness in deportation and exclusion situations. See 1952 U.S. Code Cong. & Adm. News, pp. 1710-1713. The procedural safeguards embodied in the 1952 legislation and the legislative history explaining them leads us to conclude that Congress affirmatively intended that aliens be afforded all notice reasonably possible relating to their status.

Interpreting the term "arrest" in Sec. 1326 to refer to the Sec. 243.2 arrest furthers this Congressional purpose. The Warrant of Deportation notifies the alien that he has been finally and officially ordered deported. As a matter of administrative furtherance of this objective, the Warrant of Deportation is accompanied by INS Form I-294, which specifically informs the alien of the criminal penalties to which he may be subjected should he thereafter reenter the country without prior consent of the Attorney General.

On the other hand, the Sec. 242.2 discretionary arrest has nothing to do in any way with a subsequent reentry after deportation. Its sole function is a security device to assure that the alien does not evaporate. Since it is a pre-hearing procedure, it does not advise the alien that he has been finally determined to be deportable (indeed, at that point he has not). Nor does it put the alien on notice that if he is thereafter deported criminal sanctions will attach to any reentry without permission. Moreover, to read the statute as permitting a Sec. 242.2 arrest to make reentry criminally punishable, is to emasculate the statute and render its purpose obscure. There is simply no reason why Congress should impose criminal sanctions on illegal reentry after deportation only if the District Director had, in his discretion, seen fit to arrest the alien before the deportation hearing, but not where the District Director had determined that a pre-hearing arrest was neither necessary nor desirable. There is simply no logical nexus between a pre-hearing arrest and the criminality of a subsequent illegal reentry. Therefore, we cannot attribute to Congress such a senseless effort.

Such a result is not only justified, but indeed compelled, by the facts of the present case. It is undisputed that when the defendant left the country on February 17 he believed that he was doing so pursuant to the privilege of voluntary departure. Therefore, when he reentered the country on February 19 without obtaining permission of the Attorney General he did not realize that he had previously been deported and that permission of the Attorney General was consequently required. If a Warrant of Deportation (INS Form I-205) and the accompanying INS Form I-294 had been issued, there could be no doubt that the defendant had been fully informed as to the legal effect of his departure and the consequences of his reentry. Even if the alien had been "deported" by operation of 8 U.S.C.A. Sec. 1101(g)¹⁶  the issuance of a Warrant of Deportation, service of which constitutes an "arrest" as we understand that term,¹⁷  would provide the requisite notice to trigger criminal sanctions for illegal reentry thereafter.

Apparently this interpretation of the term "arrest" is the one embraced by the INS, too. The two INS officials who testified at defendant's trial both opined that defendant was not "arrested" within the meaning of the statute.¹⁸  The District Director of the INS twice expressed the view in letters to the United States Attorney that the defendant had not been arrested within the contemplation of the statute.¹⁹  We agree. Although this is most unusual in the sense that the administrative interpretation of the law is expressed by low echelon persons they nevertheless merit consideration under the general principle that accords substantial significance to agency interpretation of its own regulations. See Udall v. Tallman, 1965, 380 U.S. 1, 16-17, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616; Allen M. Campbell Co. v. Lloyd Wood Construction Co., 5 Cir., 1971, 446 F.2d 261, 265; Crowley v. Pierce, 5 Cir., 1972, 461 F.2d 614, 617 (Brown, C. J., concurring specially) [1972].

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Accordingly, since there is no evidence that a warrant of arrest for deportation was issued or served, the Government failed to prove an element of the criminal offense. Defendant's motion for acquittal should have been granted.

Reversed.

APPENDIX A

UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service Please Refer To This File No.

Dear

This is a warning. Please read carefully.

It has been ordered that you be deported to _. You will be informed when departure arrangements are complete. If needful, we will assist you as much as possible in arranging your personal affairs for departure.

Should you wish to return to the United States you must write this office or the American Consular Office nearest your residence abroad as to how to obtain permission to return after deportation. By law (Title 8 of United States Code, Section 1326) any deported person who returns without permission is guilty of a felony. If convicted he may be punished by imprisonment of not more than two years and/or a fine of not more than $1,000.00.

Please keep this letter and refer to the above file number when writing to this office.

Very truly yours,

Form I-294

(Rev. 6-1-70)N

See Appendix on next page.

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE

File No.

Date:

As you know, following a hearing in your case you were found deportable and the hearing officer has entered an order of deportation. A review of your file indicates there is no administrative relief which may be extended to you, and it is now incumbent upon this Service to enforce your departure from the United States.

Arrangements have beken made for your departure to (country) on (date) from (port of departure) on the (name of vessel, airline, or other transportation)

You should report to a United States Immigration Officer at Room (No.) (address) at (hour and date) completely ready for deportation. At the time of your departure from (place of surrender) you will be limited to ______ pounds of baggage. Should you have personal effects in excess of this amount you must immediately contact (name of officer) at (phone no. and ext.), or call in person at the address noted above, and appropriate disposition of your excess baggage will be discussed with you.

Very truly yours,

Form I-166

(Rev. 4-1-69)