A-5170719.
Decided by Board August 18, 1955.
Crime involving moral turpitude — Section 241 (a) (4) of Immigration and Nationality Act — Conviction need not occur within five years after entry — Entry.
(1) Section 241 (a) (4) of the Immigration and Nationality Act renders deportable an alien who commits a crime involving moral turpitude within five years after entry whether or not conviction for such crime occurs within the five-year period.
(2) The first or any subsequent entry of an alien can be utilized as a basis for a deportation charge relating to the alien's conviction of a crime committed within five years after "entry." This is so, irrespective of the fact that the entry selected for deportation purposes was an illegal entry which was subsequently followed by a lawful entry with an immigration visa arising out of preexamination proceedings.
CHARGES:
Warrant: (1) Section 241 (a) (4), Act of 1952 — After entry convicted of two crimes involving moral turpitude.
(2) Section 241 (a) (4), Act of 1952 — Convicted of crime involving moral turpitude within five years of entry.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the second of the charges set forth above. The special inquiry officer found the first charge had not been sustained. The appeal will be dismissed.
Respondent is a 52-year-old married male, a native and citizen of Italy, who with exception of brief absences has been a resident of the United States since April 1927, when he was admitted as a visitor. About October 1928, he went to Canada for a brief period and again returned to the United States where he remained until 1931 when he went abroad for six or seven months. From that trip he came to Canada in August 1932 and between August and December 1932 reentered the United States in a manner not shown in the record. The alien, however, does not claim that he was then lawfully admitted for permanent residence. On January 25, 1938, after having undergone preexamination proceedings with the Service, he went to Canada and obtained a visa and on the following day returned being then admitted for permanent residence. He remained in the United States until June 1938, when he left the United States on a short visit. He was then in possession of a reentry permit. He returned on August 15, 1938, and was admitted for permanent residence as a returning resident. This was his last entry.
The convictions which formed the basis for these proceedings follow. On November 6, 1941, he was convicted on an indictment filed on February 2, 1940, for violation of 18 U.S.C. 88, for conspiracy to defraud the United States. On June 1, 1951, he was convicted on a plea of guilty to an indictment filed on October 13, 1946, for violation of a different portion of 18 U.S.C. 88, for conspiracy to violate certain laws of the United States (illegal operation of a still). He was sentenced to imprisonment of over a year and to payment of fine in each case. Sentence to imprisonment on the 1941 conviction was suspended.
The first charge is based upon the Service's belief that the alien had committed two crimes involving moral turpitude after his entry. However, the special inquiry officer found that the conviction in 1951 did not involve moral turpitude because fraud was not charged as an element of the conspiracy and because the substantive crimes did not involve moral turpitude since they were in the nature of violations of licensing regulations and did not involve acts inherently vile. He, therefore, found that there had been a failure to establish the first charge. His action was proper ( United States ex rel Iorio v. Day, 34 F. (2d) 920, C.C.A. 2; Coykendall v. Skrmetta, 22 F. (2d) 120, C.C.A. 5; Bartos v. United States District Court, 19 F. (2d) 722, C.C.A. 8; Matter of P----, 5 IN Dec. 582; Matter of H----, 1 IN Dec. 394; Matter of J----, 2 IN Dec. 99).
The second charge set forth above is based upon that portion of the Immigration and Nationality Act which makes deportable an alien who:
is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, * * * (section 241 (a) (4)).
The element of moral turpitude is clearly present in the respondent's conviction in 1941 ( Jordan v. DeGeorge, 341 U.S. 223). Counsel contends for the sake of the record that the conviction in 1941 was not for a crime involving moral turpitude but admits that upon the basis of Jordan v. DeGeorge, ( supra), and administrative precedents, this Board is bound to hold that the crime involves moral turpitude. The element of sentence to confinement in a prison for a year or more is clearly established by the record. The next question left for determination concerns that portion of the law which requires conviction to be for a crime committed within five years after entry. Counsel contends (1) that the phrase last mentioned requires both the commission of the crime and the conviction to be within five years of the same entry; and (2) that in any event it is error to utilize the entry made by the alien in 1932.
The fact the sentence to imprisonment was suspended is nonmaterial ( Matter of M----, E-113322, Int. Dec. No. 654).
We shall consider the first objection which is based on the premise that conviction within five years after entry is required. The law is quite clearly worded to require that only the commission of the crime be within five years after entry. There is no similar requirement as to conviction; that can be at any time after entry. The language of section 241 (a) (4) of the Immigration and Nationality Act gives no reason to believe that Congress desired that conviction also must occur within five years after entry. Despite the clarity of the language, counsel asks us to refer to congressional proceedings to determine the actual intent of Congress in enacting section 241 (a) (4). It is not customary to resort to congressional proceedings to determine Congressional intent of the law which is clear on its face but we would not ignore any matter which we can properly consider to clarify legislative intention. Congressional committee reports and debates are proper subjects of official notice and we will therefore consider these matters ( Stasiukevich v. Nicolls, 168 F. (2d) 474, C.C.A. 1). Counsel directs our attention to Senate Report No. 1515, 81 st Congress, 2d session, pages 391 to 392; Senate Report No. 1137, 82d Congress, 2d session, page 21; and House Report No. 1365, 82d Congress, 2d session, page 60. This material reveals that the drafters of the bills which later became the Immigration and Nationality Act intended that conviction of a crime involving moral turpitude must occur within five years after entry to be a ground of deportation. Both the House and Senate bills for which the reports of the 82d Congress set forth above were prepared make this clear. Section 241 (a) (4) of both bills originally provided for the deportation of an alien who:
within five years after entry is convicted of a crime involving moral turpitude * * * (S. 2550, 82d Cong., 2d sess., p. 109; H.R. 5678, 82d Cong., 2d sess., p. 58).
Were this all, counsel's point would appear to be well taken. However, research reveals that when the Senate bill was debated in the Senate (98 Cong. Rec. 5758), section 241 (a) (4) as it stood in the original version was struck and in lieu of it there was inserted the section which is today section 241 (a) (4) of the Immigration and Nationality Act and which, as we have shown above, provides for the deportation of an alien who:
is convicted of a crime involving moral turpitude committed within five years after entry * * *.
The changed language is very similar to the language used in the law in effect prior to the Immigration and Nationality Act (section 19 (a), act of 1917). The 1917 act was interpreted to require the commission of the crime to be within five years of entry but conviction could be at any time after entry ( Matter of D----, 1 IN Dec. 190; United States ex rel. Millard v. Tuttle, 46 F. (2d) 342).
Section 19 (a) of the 1917 act provided in pertinent part for the deportation of an alien sentenced because "of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States."
The Congressional Record does not offer an explanation for the change from the language of the original bill. The fact that there was a change is important. The fact that the change was to language with a settled meaning — a meaning the words carry on their face — is decisive. We hold that Congress wished the deportation of certain convicted criminal aliens who had committed certain crimes within five years after their entry no matter how many years after the entry conviction occurred. This construction gives effect to the clear meaning of the words used and is a sensible one. For, it is no more than a matter of common sense that if an alien who has committed a crime within five years after his entry is undesirable, he is no less so because conviction occurred more than five years after entry instead of within five years of entry.
We now come to counsel's contention that we are without power to select the alien's entry in 1932 as the basis for deportation. This contention requires us to consider again that phrase of section 241 (a) (4) which requires that the alien be convicted of a crime "committed within five years after entry." The acts of the conspiracy for which the alien was convicted occurred from day to day between January 1, 1934, and January 1, 1937. We have previously pointed out that among the alien's entries was one late in 1932; and that he was admitted for permanent residence on January 25, 1938, and last entered in August 1938, when he was admitted for permanent residence as a returning resident. The special inquiry officer selected the 1932 entry as the one on which to sustain the charge that the alien had committed a crime within five years after entry for which he had been convicted and sentenced to imprisonment for a term of a year or more.
We believe that action of the special inquiry officer is proper. It is settled that for the purposes of the immigration laws that any (voluntary) coming from foreign is an "entry" whether it is the first coming or a subsequent one ( United States ex rel. Volpe v. Smith, 289 U.S. 422) and that in immigration proceedings the Government is not restricted to the first entry made by the alien ( United States ex rel. Volpe v. Smith, supra), nor the last ( United States ex rel. Circella v. Neelly, 115 F. Supp. 615, N.D. Ill., affirmed sub nomine; United States ex rel. Circella v. Sahli, 216 F. (2d) 33, C.A. 7; United States ex rel. Belfrage v. Kenton, 131 F. Supp. 576, S.D.N.Y., June 1, 1955, 23 L.W. 2633, affirmed United States ex rel. Belfrage v. Kenton, 224 F. (2d) 803, C.A. 2, July 12, 1955; Matter of C----, 5 IN Dec. 370).
Counsel apparently accepts the existence of the rule that any voluntary coming from foreign is an entry — at least so far as it concerns aliens who have always made lawful entries or aliens who have made nothing but unlawful entries. However, he denies the validity of applying the rule to an alien who had made illegal entries which were subsequently followed by a lawful entry. He arrives at this distinction not by reason of any law or precedent to such effect but because he cannot find administrative or court cases where deportation was predicated upon an unlawful entry which had been followed by a lawful entry. However, he cites no case, either administrative or judicial, which states it cannot be done.
Counsel urges that as a matter of logic it is improper to consider an unlawful entry as the basis for deportation where it has been followed by a lawful entry because such action would place in jeopardy the lawful status acquired by aliens who were illegally in the United States and thereafter adjusted their status to that of permanent residents in proceedings such as suspension of deportation, etc.
We can think of no reason in law or logic which should require us to treat differently the alien who first entered illegally and later entered legally than we would treat an alien who entered legally on all occasions. We can utilize the first or any subsequent entry all of which were legal to deport an alien who made many entries. We should not refuse to utilize a prior entry of an alien because it was illegal. To do otherwise would place the alien who had violated immigration laws in making prior entries in a more favorable status than those who had always entered legally. Moreover, to limit the Service in its choice of entries could also work to an alien's disadvantage ( Matter of P----, 5, I. N. Dec. 651).
The law makes no distinction between a legal entry and an illegal entry as far as criminal grounds of deportation are concerned.
Since concededly a legal reentry following a legal entry or an illegal reentry following an illegal entry does not bar us from using any entry made by the alien as a basis for deportation, let us see what there is in the nature of a legal reentry following an illegal entry which should, as counsel urges, cause a different result.
A legal reentry requires that there be compliance with certain documentary requirements unless a waiver exists. The issuance of a visa or other compliance with the documentary requirements permits the entry of the alien if he is otherwise admissible under the law, but in no manner assures him freedom from deportation on grounds which existed at the time of his entry and in no manner guarantees the alien that he will not be deported if future events bring him within the deportable class. Therefore, it cannot be the mere fact of entry with appropriate documents which should cause a distinction to be made between a reentry following a lawful entry and one following an illegal entry. In law the effects are the same.
Certain exemptions are made on behalf of lawfully admitted aliens who seek reentry. They are not pertinent here.
The alien's reentry in January 1938 differed from the reentry of one who had originally made a lawful entry in one respect. The alien's entry was preceded by the process of preexamination — a procedure which would not normally accompany the reentry of one who had originally entered legally. Counsel believes that because preexamination was given to the respondent before he was admitted in January 1938, his reentry then should be regarded differently than a reentry following a legal entry. We cannot find it to have such an effect. An examination of what is involved in the process of preexamination clearly reveals that an admission for permanent residence following preexamination does not in any way differ from an admission which was not preceded by preexamination.
Preexamination is an administrative device to facilitate the issuance of immigration visas. In was extended to certain aliens illegally in the United States for a temporary period or in a limited status, who desire to become lawful permanent residents of the United States. In January 1938, the only manner other than by a private law enacted on his behalf, by which an alien could have become a permanent resident of the United States, was to be admitted with an immigration visa. These visas could only be obtained from a United States consul and United States consuls are stationed only on foreign soil. This meant that the alien had to proceed to foreign soil, normally to the place of his nativity or last residence, to obtain a visa and then return to the United States where he would make application for admission to enter for permanent residence. Canada, which was ordinarily the closest foreign land available to an alien in the United States, would not permit the alien to enter to apply for a visa because of the fear that for some reason or other he might fail to obtain his immigration visa and would not be permitted to reenter the United States. To enable the alien to make application with the minimum expense and effort, the Service in 1935 began to issue preexamination cards to certain aliens stating that the alien would be accepted back into the United States if he went to Canada to get a visa and failed to obtain it. To prevent the making of a useless journey, aliens who could not be granted visas under the law were weeded out primarily on the basis of information supplied by them. A person ineligible for entry into the United States was not entitled to preexamination. The preexamination card was issued after a determination was made that the alien would be admissible to the United States if he applied for admission in possession of an immigration visa. The process of being considered for and obtaining such a card was called preexamination. This process did not cure grounds of inadmissibility which might exist and did not contain a guarantee that the person admitted would be free from liability to deportation if he at any time became a member of the deportable classes (Circular letter February 8, 1935, File 55819/402, pertinent portions now contained in 8 C.F.R. 485). Respondent was issued a preexamination card. He went to Canada and obtained an immigration visa; he applied for admission at the border and was admitted for permanent residence.
Our review of the procedure of preexamination makes it clear that an admissible alien who underwent preexamination had no greater and no lesser right or liability than an admissible alien who reentered with a visa obtained without having undergone the preexamination process. Therefore, just as the reentry made upon the issuance of a visa after a lawful entry did not prevent the use of either entry in deportation proceedings, so the fact that a visa was issued after preexamination proceedings to an alien who originally entered illegally, should not prevent the use of either entry.
In summary, a lawful entry with a visa, whether preexamination was or was not present, does not change the fact that a previous "entry" existed even though the previous entry was illegal. It is proper to use this previous illegal entry in immigration proceedings.
Our answer to counsel's fear that our position will jeopardize the status of aliens who adjusted an illegal status in the United States is that the alien's entry in January 1938 with a visa was no different than the entry of any alien with a visa. (It was not an adjustment of status such as suspension of deportation.)
Furthermore, we are not seeking to deport the alien because he entered illegally in 1932. The manner of his entry in 1932 has no bearing on our decision. We would have found him deportable on the charge in question if he had been lawfully admitted in 1932 and had lawfully reentered in 1938. Finally, the event which made him deportable, i.e., conviction in 1941, did not occur until after his entry in 1938.
The special inquiry officer properly found the alien became deportable in 1941 by reason of the fact that he had been convicted of a crime involving moral turpitude committed within five years after his entry in 1932 and that he had been sentenced to imprisonment for a term of a year or more. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.