Kiyemba Voluntariness Doctrine

8/6/2019 Kiyemba Voluntariness Doctrine

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Kiyemba voluntariness doctrine

There must be an element of voluntariness or purposefulness in the

non-citizen's failure to depart. In most instances, as in this case, thismeans in practical terms that the government must show that the

non-citizen has had a reasonable opportunity to depart, which he

has voluntarily rejected. Upon such a showing, the defendant will be

convicted unless he ran show some justification for rejecting the

opportunity.

Federated States of Micronesia v Jorg

[1983] FMSC 13; 1 FSM Intrm. 378 (Pon.

1983) (9 December 1983)

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as FSM v. Jorg, 1 FSM Intrm. 378 (Pon. 1983)

TRIAL DIVISION-STATE OF PONAPE

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

PETER JORG,

Defendant.

CRIMINAL ACTION NO. 1983-543

OPINION

Before Edward C. King

Chief Justice

Ponape, Caroline Islands 96941

December 9, 1983


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APPEARANCES:

For the Plaintiff: Carl Ullman

Assistant Attorney General

Federated States of Micronesia


For the Defendant: Loretta Faymonville

Public Defender

P.O. Box 238


[1 FSM Intrm. 378]

Defendant Peter Jorg, a citizen of Austria, has remained in the

Federated States of Micronesia some seven months after expiration

of his entry authorization. The question is whether be is "willfully"

failing to depart so that his continued presence here constitutes

criminal conduct under 50 F.S.M.C. 112.

Factual Background

Jorg and his fiancee, Heidemarie Eggersmeier, a citizen of West

Germany, arrived in Ponape on a February 16, 1983 Air Nauru flight

from Manila. Their plan was to rendezvous with a friend from the

Marshall Islands, who was to have come here by sailboat. They were

all to sail from Ponape to Majuro on the sailboat. Jorg and

Eggersmeier were then intending eventually to fly from Majuro tothe United States, with the that they might obtain employment

there.

The plan immediately went awry. Upon arrival at the Ponape

Airport, Jorg and Eggersmeier were advised by FSM Immigration

Officer Lucio Remoket that arriving visitors must have with them

tickets for their departure from the Federated States of Micronesia.


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Since they intended to depart from the Federated states of

Micronesia by private sailboat, the couple had no public transport

tickets for their departure. This problem was resolved by an

agreement that the couple would immediately acquire airtransportation tickets for passage from the Federated States of

Micronesia.

They fulfilled this requirement the next day by purchasing two

Air Nauru tickets for flights from Ponape to Nauru. They were

granted authorization to remain within the Federated States of

Micronesia until

[1 FSM Intrm. 379]

March 15, 1983. There is no evidence that this authorization was

ever extended.

Unfortunately, the former friend from the Marshall Islands never

appeared with the sailboat in Ponape. Jorg and Eggersmeier were

forced to seek alternate means of departure from the Federated

States of Micronesia. A couple from Sweden happened to be on

Ponape at the time. Jorg repaired their boat's motor and it was

agreed that Jorg and Eggersmeier could sail with the couple to

Majuro for $800 per person. Early in March, Jorg and Eggersmeier

cashed in their Air Nauru tickets, paid $1,600 to the Swedish couple,

and they all cast off for Majuro.

This is not the end of their story however. Shortly after departure

from Ponape, the boat's motor again began malfunctioning. Thisforced them to divert their boat to Kosrae for repairs.

Sometime after their arrival in Kosrae and while they were still

awaiting parts and repairs the next crucial incident occurred. For

reasons unexplained in the testimony, the Swedish woman became

angered one evening, threw overboard the belongings of Jorg and

Eggersmeier, and decreed that Jorg and his fiancee would not be

permitted to travel farther in the boat. The Swedish couple also

refused to refund the $1,600 on the grounds that the money had


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already been spent on new engine parts. The boat left shortly

thereafter, abandoning Jorg and Eggersmeier on Kosrae.

For several months they remained on Kosrae, without money to

buy a ticket to leave. They relied principally on the generosity of

individual Kosraeans for their food and housing.

[1 FSM Intrm. 380]

Finally, a man who befriended them purchased plane tickets for

their travel back to Ponape.

They arrived here on August 16, still dependent on others for the

necessities of life. Most of the help has been provided by the

Federated States of Micronesia which has furnished housing and

food for the impecunious travelers. The Federated States of

Micronesia is billing Jorg for these provisions and he acknowledges

that his indebtedness to the Federated States of Micronesia now

exceeds $1,000. He promises to pay eventually but is unable to do

so now.

Throughout recent months Federated States of Micronesia

immigration officials have been working with the nations of

citizenship of Jorg and Eggersmeier, Austria and West Germany,

respectively. Eggersmeier eventually received a loan from the West

German government enabling her to purchase a plane ticket. She

has departed from the Federated States of Micronesia.

The Republic of Austria is tendering funds to Jorg for his return

travel to Austria. Before issuing an airline ticket to him, however,

the Austrian Embassy demands that he sign a promissory note

agreeing to repay within 30 days the $1,226 price of the ticket to

Vienna.

Jorg insists that it would be impossible for him to repay the

$1,226 loan within 30 days and he refuses to sign the note.

Meanwhile he has made arrangements with yet another boat owner,

this one from West Germany, whose boat is awaiting repair. The


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captain of that boat confirms their agreement that Jorg will sail with

that boat to Manila after repairs are completed within a month or so.

The Federated States of Micronesia, unwilling to wait longer, presses

forward with its charge

[1 FSM Intrm. 381]

that, by refusing to obtain the Austrian funds, Jorg is "willfully and

unlawfully" remaining after expiration of his entry authorization in

violation of 50 F.S.M.C. 112.

Meaning of "Willfully"

Under 50 F.S.M.C. 112, a noncitizen of the Federated States of

Micronesia who "remains willfully and unlawfully after expiration or

revocation of his entry authorization" may be subjected to two years

of imprisonment, fined up to $10,000 and deported.

A. Federated States of Micronesia Sources

There are few clues within the law here as to the meaning of

"willfully." The Immigration Act offers no definition. The word

"willfully" was not discussed in any committee report or floor

discussion reflected in the Congress Journal. A comparison of 112

with the former Trust Territory immigration law reveals that the

penalty clause was drawn in great part from that earlier Trust

Territory provision, 53 TTC 62. While this suggests the Congress

was adopting "willfully" with the meaning ascribed to it under TrustTerritory law, we have found no Trust Territory High Court

interpretation of the word. Finally, this Court has not previously had

occasion to consider the meaning of the word "willfully."

B. Other Sources


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In the absence of clear guidance from sources within the

Federated States of Micronesia, we may look elsewhere for

assistance in determining the meaning of willfully.

I have reviewed United States court decisions under statutes

mandating certain actions and imposing criminal liability for willful

[1 FSM Intrm. 382]

failure to comply. These include cases Involving the Immigration and

Nationality Act, 8 U.S.C.S. 1252(e)1 (willful failure of alien under

deportation order to depart within six months or to make timelyapplication for documents necessary to departure); the Internal

Revenue Code, e.g., 26 U.S.C.S. 7203 (willful failure to file return

or pay tax) and 7204 (willful failure to furnish statement)2; and the

Interstate Commerce Act, 49 U.S.C.S. 322(a) (willfully failing to

comply with statutory or regulatory mandates).3

However, none of these authorities are sufficiently persuasive,

either for uniform results or as to mode of analysis, to warrant

outright adoption or extended discussion here.

The imprecision of analysis and lack of uniformity in results in

cases concerning "willful" failures to act is well illustrated in the tax

cases most closely parallel to Jorg's current circumstance. Where

taxpayers who could have borrowed funds to pay taxes, but did not,

are prosecuted for willful failure to pay taxes, there is a split of

authority. Compare United States v. Goodman, 190 F. Supp. 847, 856

(N.D. I11. 1961) ("I think it is obvious that there is no requirementthat a person must borrow money or agree to an assignment of his

fees in order to pay his income tax liabilities"), with United States v.

Tucker, 686

[1 FSM Intrm. [1967] USCADC 336; 383]

F.2d 230, 233 (5th Cir. 1982) ("This argument borders on the

ridiculous.... A taxpayer is obligated to conduct his financial affairs
http://www.paclii.org/cgi-bin/LawCite?cit=%5B1967%5D%20USCADC%20336?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=383%20F2d%20230?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=383%20F2d%20230?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=383%20F2d%20230?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=383%20F2d%20230?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=383%20F2d%20230?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1967%5D%20USCADC%20336?query=noncitizen%20nationality


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in such a way that be has cash available to satisfy his tax

obligation").

C. Application

Having completed review of the various guides available, we are

still left to find our own way. I therefore return to the Act itself to

form an analysis.

The Immigration Act commands the alien to depart the

Federated States of Micronesia upon expiration of his entry

authorization. He whose conduct is defined as criminal, is one who

"willfully" fails to do so. By using the word "willfully," Congressdemonstrated that it did not intend that a person, by reason of a

bona fide misunderstanding of his obligations, physical or mental

incapacity, or other factors beyond his control, should become a

criminal by mere failure to measure up to the prescribed standard of

conduct.

Thus, it is not enough for the government to show only

knowledge of the requirement to depart and failure to depart. There

must be an element of voluntariness or purposefulness in the non-

citizen's failure to depart. In most instances, as in this case, this

means in practical terms that the government must show that the

non-citizen has had a reasonable opportunity to depart, which he

has voluntarily rejected. Upon such a showing, the defendant will be

convicted unless he ran show some justification for rejecting the

opportunity.

Applying these standards to this case, I find that, until theAustrian government tendered funds to him, Jorg had not voluntarily

[1 FSM Intrm. 384]

rejected or forgone any reasonable opportunity to depart. He had

taken no steps or omitted any actions with knowledge that such

steps or omissions would prevent compliance with the statutory

mandate.


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The government, however has shown that since late September

or early October, funds have been available to Jorg from the

Austrian government. Acceptance of those funds would provide the

opportunity to depart.

The remaining and central question then is whether Jorg is

justified in refusing to sign the promissory note tendered by his own

nation as a condition to the provision of funds which would enable

him to leave.

A hard look at the realities points toward the answer. The present

situation borders on the absurd. An itinerant Austrian citizen is

accepting food and housing from the Federated States ofMicronesia, a small, new, relatively poor nation, while

simultaneously refusing to accept travel funds from his own nation

because he does not like the terms of his nation's loan offer. Jorg

asks that we accept his reluctance to accept the demands of the

Republic of Austria as valid justification for his continued failure to

depart. In effect, he is asking that this Court and the Federated

States of Micronesia intervene in his dealings with has own country

by reviewing in detail Jorg's personal circumstances and the loanterms demanded by the Austrian government.

This Court and the Federated States of Micronesia must not be

lured into the role of mediator between visitors and their nations of

citizenship. Only in the rarest of circumstances, if ever, would the

[1 FSM Intrm. 385]

Court second-guess and scrutinize the conditions which other

nations place upon offers of funds to their own citizens.

Even if I were willing to engage in this line of inquiry, the

evidence would not justify a finding that the Austrian government is

placing Jorg in an unfair or untenable position.

Except for Jorg's brief, conclusory testimony that be has no

money or property, that he cannot receive assistance from his


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brother in Austria, and that the job market is bad in Austria, there as

no evidence of Jorg's personal or family circumstances or of the

Austrian economy. Consequently, we have no precise information as

to when, if ever, the Austrian government might reasonably expectto receive repayment from Jorg and what terms that government

might reasonably impose upon him in exchange for its loan of funds.

These are matters more within the competence of the Austrian

government to decide. It would be unworkable and improper for this

Court to try to determine whether the Austrian government is taking

a "reasonable" position under the circumstances and whether it is

treating its own citizen properly. In any event, it does not seem

unreasonable for that government, in loaning money to its citizen

marooned on a Pacific Island, to insist that he agree to repay the

money promptly upon his return to Vienna.

Jorg points out that under Austrian law debtors may be

imprisoned for non-payment. The implication is that he may be

imprisoned soon after his return to Austria if he signs the note. Yet,

there is no evidence indicating the circumstances under which

debtors are imprisoned, nor the frequency with which that occurs.

Rather than assume that the Austrian government will insist that itsdesperate

[1 FSM Intrm. 386]

citizen sign a 30 day note, which he candidly says he cannot pay,

and then promptly use that note as a basis for throwing him into the

jail soon after his return, I see as more likely the possibility that the

Austrian government is requiring the signing of a 30 day note simply

to assure that it will be repaid promptly, if funds are available. If Jorg

subsequently establishes that he in fact has no resources for

repayment of the note within 30 days, the Republic of Austria, one

hopes and trusts, will surely renegotiate the terms of payment.

Finally, there is no indication that Jorg himself has taken steps to

obtain funds under any better terms fran the Austrian government

or from any other source. For all that appears, he has merely


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rejected his own government's offer and continued to receive the

housing and food being furnished him by the Federated States of

Micronesia government.

For all of these reasons, I conclude that Jorg does have a

reasonable opportunity to depart from the Federated States of

Micronesia and that the conditions imposed by the Austrian

government upon their loan offer do not justify his refusal to accept

the funds.

Jorg's reluctance to accept the funds from the Republic of Austria

under the terms offered is understandable, as is his preference to

depart by boat to Manila rather fly to Vienna. Those are merepersonal preferences however. They do not rise to the level of

justifications for failure to comply with the statutory mandate to

depart. Jorg's focus on his own personal preferences rather than the

statutory mandate amounts to a willful violation of the Act. He now

remains in the Federated States of Micronesia willfully and

unlawfully after expiration of his entry authorization in violation of

50 F.S.M.C. 112.

[1 FSM Intrm. 387]

Conclusion

The defendant here knows about the statutory mandate to

depart. He has the opportunity to depart by accepting funds from

his nation. He refuses to accept those funds because he does not

want to become entangled with the Austrian government. Insteadhe prefers to await the anticipated departure of a boat in a month or

two, knowing that the Federated States of Micronesia feels

responsible to assure that food and housing will be available to him.

Jorg's personal preference is this situation is understandable,

even reasonable. The law, however, requires that he respond to the

statutory mandate to depart now, not to his personal preferences to

linger awhile longer and depart by a more attractive means to a


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more preferred destination. His refusal to respond to the statutory

mandate can only be seen as willful.

I therefore conclude that he is guilty of violating 50 F.S.M.C. 112.

Sentencing will be on December 14 at 1:30 p.m.

So ordered the 9th day of December 1983.

/s/ Edward C. King

Chief Justice

Supreme Court of the Federated

States of Micronesia

Entered this 12th day of December 1983.

/s/ Emiliana J. Kihleng

Chief Clerk of Court

[1 FSM Intrm. 388]

1. Heikkinen v. United States, [1958] USSC 1; 355 U.S. 273, 78 S. Ct.

299, 2 L. Ed. 2d 264 (1958).

2. United States v. Murdock, [1933] USSC 167; 290 U.S. 389, 54 S.

Ct. 223, 78 L. Ed. 381 (1933); Spies v. United States,[1943] USSC

16; 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418 (1943); Annot., 22

A.L.R. 3d 1173 (1968).

3. United States v. Illinois Central R.R., [1938] USSC 63; 303 U.S.

239, 58 S. Ct. 533, 82 L. Ed. 773 (1938).
http://www.paclii.org/cgi-bin/LawCite?cit=%5B1958%5D%20USSC%201http://www.paclii.org/cgi-bin/LawCite?cit=355%20US%20273?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1933%5D%20USSC%20167http://www.paclii.org/cgi-bin/LawCite?cit=290%20US%20389?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1943%5D%20USSC%2016http://www.paclii.org/cgi-bin/LawCite?cit=%5B1943%5D%20USSC%2016http://www.paclii.org/cgi-bin/LawCite?cit=317%20US%20492?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1938%5D%20USSC%2063http://www.paclii.org/cgi-bin/LawCite?cit=303%20US%20239?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=303%20US%20239?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1958%5D%20USSC%201http://www.paclii.org/cgi-bin/LawCite?cit=355%20US%20273?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1933%5D%20USSC%20167http://www.paclii.org/cgi-bin/LawCite?cit=290%20US%20389?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1943%5D%20USSC%2016http://www.paclii.org/cgi-bin/LawCite?cit=%5B1943%5D%20USSC%2016http://www.paclii.org/cgi-bin/LawCite?cit=317%20US%20492?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=%5B1938%5D%20USSC%2063http://www.paclii.org/cgi-bin/LawCite?cit=303%20US%20239?query=noncitizen%20nationalityhttp://www.paclii.org/cgi-bin/LawCite?cit=303%20US%20239?query=noncitizen%20nationality

Kiyemba Voluntariness Doctrine

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