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Lozano-Giron v. Immigration and Naturalization Service

decided: December 4, 1974.

ULDARICO LOZANO-GIRON, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Petition for Review of Order of Deportation.

Castle, Senior Circuit Judge, Stevens and Sprecher, Circuit Judges.

Author: Sprecher

SPRECHER, Circuit Judge.

The primary issue is whether a permanent resident alien's return to the United States from a 27-day trip to Colombia constituted an "entry" within the meaning of section 101(a)(13) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a)(13).*fn1

I

The petitioner is a 31 year old single male alien, a native and citizen of Colombia, who was admitted to the United States for permanent residence at Miami, Florida, on October 25, 1963. He lived in the United States continuously since his entry in 1963 except for three visits to see his parents in Colombia: the first in April, 1970, for three months; the second in November, 1971, for three months; and the third from June 30, 1972 to July 27, 1972, when he returned to Miami as a returning resident. His purpose in going to Colombia for the third time was in order to get married, but his girl friend changed her mind and declined to marry him. He had with him on this trip in excess of $2,100 in currency.

The petitioner testified that inasmuch as he could not take Colombian currency out of that country, except for a nominal amount, and inasmuch as Colombian banks would not exchange Colombian currency for United States money, he had asked a friend to send him anyone who would exchange currencies with him. While he was in a dimly lit bar, a man approached him and agreed to take petitioner's 42,000 Colombian pesos (worth $2,100) plus petitioner's wrist watch, ring and a radio, in exchange for $2,400 in United States currency. The exchange was made and petitioner placed the $2,400 in a briefcase, which his mother put away in her home.

On July 27, 1972, petitioner took the briefcase with the money on the airplane with him as he departed for Miami, Florida. While on the plane, he decided to have a drink and was about to pay for it with a ten dollar bill from the briefcase when he noticed that it looked "kind of funny." Becoming nervous he went to the washroom and after satisfying himself that the entire $2,400 was counterfeit, he hid the money in his trouser pocket, shirt pocket and inside his belt. He testified that his intention at that time was to go to the Colombian consul when he reached Miami and seek his advice.

When petitioner reached Miami and went through customs, he was asked by a customs officer to pay a duty on a bottle of liquor. He asked permission to go to an international bank in the terminal in order to exchange his remaining 180 Colombian pesos into dollars. As he was about to leave, another customs officer stopped him, examined him and found the $2,400 in counterfeit money.

Petitioner was arrested and indicted. Upon his plea of guilty he was convicted in the United States District Court for the Southern District of Florida on November 6, 1972 of possessing, with intent to defraud, 204 counterfeit obligations of the United States in violation of 18 U.S.C. § 472. He was sentenced to 18 months' imprisonment and he served his sentence.

On May 8, 1973, petitioner was served with an order to show cause why he should not be deported from the United States. After holding a hearing where petitioner was represented by counsel of his choice, the Immigration Judge on July 12, 1973, ordered petitioner deported from the United States to Colombia, pursuant to section 241(a)(4) of the Immigration and Nationality Act in that he had been convicted of a crime involving moral turpitude committed within five years after entry and had been sentenced to confinement for a year or more. 8 U.S.C. § 1251(a)(4).*fn2

On January 31, 1974, the Board of Immigration Appeals dismissed the petitioner's appeal. The case comes here on petition for review.

II

Petitioner's first argument was that he was not convicted of "a crime involving moral turpitude."

He was indicted for possessing counterfeit obligations of the United States "with intent to defraud" in violation of 18 U.S.C. § 472.*fn3 Upon his plea of guilty, he was convicted of "possession of counterfeit obligations of the United States, knowing same to be counterfeit in ...


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