0402-15394.
Decided by Board March 24, 1955.
Seaman status under Immigration Act of 1917 — Passport Act of May 22, 1918, effective period — Deportability under Immigration and Nationality Act on grounds barred by statute of limitations under 1917 act — Fair hearing, charges lodged under Immigration and Nationality Act, warrant issued under earlier statute — Section 241 (a) (12), Immigration and Nationality Act, commercialized vice.
(1) An alien who was allegedly employed on vessel bringing him to United States in 1922 cannot be classified as a "seaman" under Immigration Act of 1917 where the evidence shows he was not signed on the ship's articles, he had no passport, his name did not appear on the crew list, and he entered the United States without inspection.
(2) An alien who applied for admission to the United States in 1922 was not admissible unless he presented a passport showing his identity and nationality pursuant to Executive Order 2932 of August 8, 1918, and the Passport Act of May 22, 1918.
(3) Deportability under section 241 (a) (1) and (2) of the Immigration and Nationality Act is established by reason of alien's failure to present a passport and submit to inspection at time of arrival in 1922 even though deportation proceedings under the Immigration Act of 1917 could not have been instituted more than five years after date of entry.
(4) Where the Government failed to institute deportation proceedings within the prescribed five-year period under the Immigration Act of 1917 following an alien's failure to present a passport and submit for inspection, the right of the alien thereafter to remain in the United States is not preserved by section 405 (a) of the Immigration and Nationality Act in view of the provisions of section 241 (a) (1), (2), and (d) directing his deportation.
(5) Although warrant of arrest was issued before December 24, 1952, the Service is empowered thereafter to lodge additional charges based on the provisions of the Immigration and Nationality Act.
(6) The Passport Act of May 22, 1918, remained in force until December 24, 1952 (section 403 (a) (15) of the Immigration and Nationality Act).
(7) Under section 241 (a) (12) of the Immigration and Nationality Act, which relates to aliens who are members of a class described in section 212 (a) (12), a charge of "after entry, engaged in unlawful commercialized vice" cannot be sustained unless the alien was coming to the United States to engage in unlawful commercialized vice.
CHARGES:
Warrant: (1) Act of 1924 — No immigration visa (1928).
Lodged: (2) Section 241 (a) (1), Act of 1952 — Excludable at entry (1922), no passport or other travel document.
(3) Section 241 (a) (2), Act of 1952 — Entered (1922) without inspection. (4) Section 241 (a) (12), Act of 1952 — After entry, engaged in unlawful commercialized vice, to wit: Lottery, operation of lottery, professional gambling, operation of professional gambling, bootlegging.
(5) Section 241 (a) (1), Act of 1952 — Excludable at entry (1931) — No immigration visa.
(6) Section 241 (a) (2), Act of 1952 — Entered (1931) without inspection.
(7) Section 241 (a) (5), Act of 1952 — Failed to furnish annual address report required by section 265.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring the alien's deportation on the second, fourth and fifth charges set forth above. We find only the second and third charges sustained.
Respondent, a 51-year-old married male, a native and citizen of Italy, testified that he entered the United States on the SS. Giulio Cesare on August 23, 1922. No record of the admission can be found. He was not in possession of a passport at the time of entry.
The first issue for consideration is raised by the respondent's claim that he was lawfully admitted as a seaman. The Service, on the other hand, holds that he was not so admitted and is deportable as one who entered without inspection and without the passport required at that time. To determine this issue, we must consider the alien's testimony given on two separate occasions; the effect of laws and regulations relating to the entry of aliens; and the absence of any record of entry. The alien's testimony will be considered as it relates to employment, documents, and inspection.
DID THE ALIEN ENTER AS A SEAMAN
Testimony as to employment on the vessel. — In a sworn statement on February 5, 1952, the alien testified as follows. Some person, whose status on the boat he did not know, took him on board the vessel to give him a job. He was given work shoveling coal. He did not know whether or not he was registered as a seaman on the vessel. He did not sign the ship's articles when he came on board and in fact, "signed nothing." He did not bribe anyone to be brought on board the vessel and was not charged passage. He ate with the rest of the crew members.
At his hearing, the alien testified as follows. Prior to leaving his native city, he had been employed as long as he could remember as a plasterer. He had never worked as a seaman. He went to Palermo to look for employment which would pay him more than the work he had been doing. At Palermo at a hotel, he met a man who offered him a job on board the SS. Giulio Cesare. Prior to embarking he had never asked for employment on any vessel. The man who had offered him the job was an officer on the vessel; he was the boss of the black gang. Four or five days later, he got on the vessel and was given the job of shoveling coal into the furnace on board the vessel. He worked from ten to twelve hours a day, having no regular shift, being put to work at any hour or any time. He ate and lived with the crew. He could not recall signing anything when he came on board the vessel and does now know whether or not he was a member of the ship's crew. He was never taken before the captain, first mate, second mate or the steward. Just before he got off the ship, he was paid for his services. He left the ship the first day it was in port although it remained three or four days. He never went back to it. He never thereafter took employment on board a vessel.
Testimony as to documents. — In the statement of February 5, 1952, the alien stated he did not have a visa or Italian passport in his possession when he left Italy or when he came to the United States; that he never had an Italian passport. His then counsel, in the presence of the alien, admitted the alien had entered the United States without a passport in 1922.
At the hearing, the alien testified that he had never applied for an Italian passport and never had asked for a book of identity which would allow him to travel from Italy to another country either as a seaman or an immigrant; and that he had not gone to any American consul or official or to any Italian official to secure documents to come to the United States.
Testimony as to inspection. — On February 5, 1952, he stated that he had entered the United States at New York, New York; when he arrived he was not checked by immigration officers. The same man who gave him the job on board the vessel gave him a pass (shore leave).
At his hearing, the alien testified: Before he got on board the vessel, he was examined by a doctor in Italy, but was not examined by a doctor in the United States. When he arrived in the United States, he was not examined by immigration officers. He went down the ladder leading from the ship and exhibited his pass to two officers who were there on the pier. He believed these officers were police officers. He could not recall standing inspection at any time with the rest of the crew and could not recall being examined by any immigration officer when he arrived in the United States.
A Service investigation covering records of arrivals of aliens, both seamen and passengers, on the SS. Giulio Cesare for August 23, 1922, disclosed no record relating to respondent.
The question as to whether respondent was admitted as a seaman cannot be determined without considering the laws and regulations then in effect, for the term "seaman" in the immigration laws is one of art. At the time of the alien's entry, an alien to be a "seaman" was required (1) to be employed in some capacity on board a vessel arriving in the United States from a foreign place; and (2) was required to have signed the ship's articles. Only aliens who met both requirements were to be treated as seamen. The cases of all others were to be handled in accordance with the general requirements of the immigration laws (section 1, Act of February 5, 1917; Rule 10, subdivision 1, Immigration Rules of May 1, 1917, Seventh edition, 1922). While the alien may have been employed in some capacity on board the vessel, it is clear that he was not signed on the ship's articles. This failure to be signed on the ship's articles makes it legally impossible to hold he was a "seaman" ( United States ex rel. Candreva v. Smith, 27 F. (2d) 642, C.C.A. 7).
Furthermore, the complete absence of compliance with other requirements set up by law relating to the admission of seamen to the United States is additional evidence that the alien was not a "seaman" on board the vessel and could not have been admitted as a seaman. The law required that responsible individuals in charge of a vessel deliver to the immigration officer upon arrival "a list containing the names of aliens employed on such vessel." The list had to be visaed by an American consular official (section 36 of the act of 1917; subdivision 3 (a), Rule 10, supra; Executive Order 3629, February 1, 1922, Section II). No record of his entry as a seaman appears. A seaman was required to be in possession of satisfactory evidence of nationality (Executive Order 2932, section 10 (c)). The alien had none. The law required a medical examination of all alien seamen (subdivision 4, Rule 10, supra). The alien testified that no such examination was conducted. Finally, the law provided that all seamen applying for admission shall be regularly inspected by immigrant inspectors (subdivision 6, Rule 10, supra). The alien does not recall any such inspection, and there is no record of such an inspection.
Counsel's contention that oral proof of nationality would have been sufficient is discussed infra.
These failures to comply with law rule out the possibility that the alien could have been admitted as a seaman. When we consider that in a deportation proceeding the law places upon the alien the burden of establishing the time, place and manner of his entry (section 291 of the act of 1952), it is apparent that there is ample reason to conclude that the alien failed to establish that he entered as a "seaman," and, that it is reasonable to conclude that the omissions exist because the alien concealed himself on board the vessel, did not offer himself for inspection at the time the vessel arrived, and entered surreptitiously.
Counsel claims the alien may have entered as a "workaway." At the time the respondent applied for admission, the fact that an alien was a stowaway or workaway would not have barred him from admission if he were otherwise qualified for admission. Such alien, however, had to be manifested and produced for inspection in the same manner as other aliens and the fact that he was a stowaway had to be indicated on the manifest (Rule 2, subdivision 4, Immigration Rules of 1917; Rule 10, subdivision 3, supra). The admission of the workaway or stowaway had to be ordered by a board of special inquiry (Rule 7, Immigration Rules of 1917; see Stone v. Tillinghast, 32 F. (2d) 447, C.C.A. 1). The alien's name does not appear upon a manifest and there is no evidence that he was given a hearing before a board of special inquiry. The burden of establishing the manner of entry is upon the alien. In view of the factors mentioned, we do not believe he has met that burden.
Counsel argues the presumption of official regularity requires the conclusion that the alien was regularly admitted since he was permitted ashore in 1922. The difficulty with this is that the law provided for the admission of seamen only upon compliance with certain regulations. The record establishes there was a failure to comply with these regulations. It would therefore be improper to assume that the alien was admitted in accordance with the law. On the contrary, the presumption of official regularity would lead to the inference that since the alien was ashore and had not complied with the conditions relating to the admission of seamen, he had entered the United States without submitting himself to the inspection of the proper officials.
We conclude that the record fails to establish that the alien was lawfully admitted to the United States in any capacity. The alien testified that he did not present himself for inspection and that he was not inspected with the crew. His name does not appear on the records of the vessel on which he came; there is no record of his entry or record of his inspection. We believe it is established that he did not present himself for inspection when he made his way into the United States. The third charge (that he entered without inspection in 1922) will, therefore, be sustained.
We come now to the charge that the respondent entered in 1922 without a passport. The charge is sustained. In 1922, a passport was required of aliens who sought entry into the United States (Title 7, section 31, Executive Order 2932, August 8, 1918). "Passport" was defined as a document "in the nature of a passport issued by the United States or by a foreign government, which shows the identity and nationality of the individual for whose use it was issued and bears his signed and certified photograph" (Title 1, section 5, Executive Order 2932, August 8, 1918). The passport had to be visaed (Title 7, section 31, Executive Order 2932, supra). It is clear that the alien was not in possession of a passport or document in the nature of a passport and had he applied for admission in the regular manner, this would have been the basis for refusing him permission to enter. He was excludable at the time of entry under the laws then existing. The 1952 act makes deportable any alien who was excludable under the law existing at the time of entry regardless of when the entry took place (sections 241 (a) (1) and (d)). The charge based on his failure to possess a passport in 1922 should be sustained. This is so, even if the respondent had applied for entry as a seaman. He then too would have been required to be in possession of evidence of nationality (See National Surety Corp. v. United States, 143 F. (2d) 831, C.C.A. 5). He had none, and counsel's contention that such evidence of nationality could be supplied by the oral testimony of other seamen is not supported by authority. Even an affidavit could not take the place of the proper evidence of nationality ( Takeyo Koyama v. Burnett, 8 F. (2d) 940, C.C.A. 9 (1925)).
Counsel argues that the charges concerning failure to possess a passport and entry without inspection cannot be sustained because of the protection contained in the Immigration Act of 1917. He argues: The 1917 act provided that proceedings on the charges in question had to be commenced within five years after entry; proceedings were not so commenced; the alien, therefore, had the "right to permanent residence" as it existed prior to the act of 1952. This "right," he believes, is preserved by the savings clause of the act of 1952 (section 405 (a)). We do not agree. We have previously held that an alien who was not deportable prior to the act of 1952 because proceedings were barred by the statute of limitations was nevertheless deportable under the act of 1952. We stated the savings clause in the act of 1952 did not continue the bar to the alien's deportation caused by the statute of limitations because the savings clause provided it would not preserve rights where provision to the contrary was made and that both the language of the new charges and that of section 241 (d) were such provisions to the contrary ( Matter of C----, E-076976, 5, I. N. Dec. 630; Matter of A----, E-081282, Int. Dec. No. 636; see Matter of M----, A-2669541, 5 IN Dec. 261; Matter of P----, E-1356, 5 IN Dec. 392; and Matter of R----, E-080924, 5 IN Dec. 612). This view was upheld in unreported decision Carson v. Kershner, U.S.D.C., N.D. Ohio E.D., April 1954, Civil Action No. 30800, appeal pending.
Counsel, however, feels that we would be in error in continuing to hold that the bar to deportation created by the statute of limitations contained in the 1917 act no longer applies although the alien once had such protection. In support of his view he cites United States ex rel. De Luca v. O'Rourke, 213 F. (2d) 759, C.A. 8; and Bertoldi v. McGrath, 178 F. (2d) 977, C.A.D.C. We believe our position is correct and that the cases cited by counsel do not require a change.
Let us first consider what protection the alien had prior to the Immigration and Nationality Act of 1952. He entered illegally in 1922. Even though he may then have been eligible to enter lawfully, his illegal entry gave him no right to remain in the United States ( Marty v. Nagle, 44 F. (2d) 695, C.C.A. 9), appeal dismissed 283 U.S. 868; see Bukta v. Zurbrick, 50 F. (2d) 593, C.C.A. 6). The mere lapse of time did not convert his illegal entry into a lawful admission or his unlawful stay into legal residence ( United States v. Anastasio, 120 F. Supp. 435, 439, N.J.). While he could not be deported because proceedings had not been timely brought, he had no "right" to remain in the United States. We do not feel the "right" to illegal residence is meant to be covered by the general language contained in a section such as the savings clause.
Now, assuming arguendo, that he did have a "right" to remain in the United States, there can be no doubt that Congress had the power to take it away from him. In the Immigration and Nationality Act of 1952, Congress took away the right to residence of aliens who had been lawfully admitted and had not theretofore been deportable ( United States ex rel. Barile v. Murff, 116 F. Supp. 163, D.C. Md.). It is clear, therefore, that they could take away the "right" of one who had no lawful status in this country ( United States ex rel. De Luca v. O'Rourke, supra, p. 763; Harisiades v. Shaughnessy, 342 U.S. 580; Carlson v. Landon, 342 U.S. 524, 534).
Congress had the power to provide for the removal of aliens who had previously been protected by the statute of limitations. We believe that the act of 1952 was passed with the intent of accomplishing this end. The report of the Subcommittee whose basic findings and recommendations resulted in the Immigration and Nationality Act contains a discussion concerning the five-year limitation under the 1917 act on the deportation of aliens who entered illegally. The committee stated, "It is the recommendation of the subcommittee that the time limitation on their deportation after entry should be eliminated. If the cause of exclusion existed at the time of entry, it is believed that such aliens are just as undesirable at any subsequent time as they are within the five years after entry" (Senate Report 1515, 81st Congress, 2d session, p. 389). In the House when the bill which became the 1952 act was being considered, an amendment to provide for a five year statute of limitations on aliens who entered without inspection or without certain documents whether the entry occurred before or after the effective date of the proposed legislation was defeated. In opposition to the amendment, Mr. Walter, who introduced the bill which became the 1952 act, stated "this amendment affects only those people who are in the United States illegally — illegal entrants * * *. It seems to me that the United States should have the authority to deport at any time an alien who is illegally in the United States" (Congressional Record, Vol. 98, April 25, 1952, pp. 4433-4434). The 1952 act was expressly designed to facilitate deportation of undesirable aliens who could not previously be deported (See Senate Report 1137, 82d Congress, 2d session, p. 22).
The matters we have set forth reveal that it was the intent of Congress to make undesirable aliens deportable no matter how long they have been in the United States. However, we might also point out further that the act of 1952 succeeded in making aliens deportable who had lawfully entered the United States and had not been deportable prior to the 1952 act. Thus, an alien lawfully admitted to the United States who prior to the act of 1952 had been convicted of two crimes involving moral turpitude, but had not been sentenced more than once to a term of a year or more, could not be deported. Under the act of 1952, such an alien can be deported despite long legal residence in the United States, and even though the crimes had been committed as far back as the year in which the respondent herein entered the United States. We do not believe that it was the intent of Congress that an alien who was illegally in the United States because of the manner of his entry and who could not be deported because of the statute of limitations, should be in a better position than an alien who had entered the United States lawfully and had committed an act which was not a deportable offense at the time it was done.
Finally, we think the intent of Congress to deport aliens illegally in the United States despite their previous protection under the statute of limitations is clear from the language of the act itself. For example, subsection 1 of section 241 (a) provides for the deportation of aliens who at the time of entry were excludable under laws then in existence. This is so comprehensive that it would seem to apply to those who had entered prior to the date of the act, no matter when they entered, and no matter what protection they had previously by reason of a statute of limitations. What then was the necessity for inserting an additional clause (section 241 (d)) stating that aliens were to be deportable regardless of the date of their entry, if not to remove all doubt and emphasize that Congress meant exactly what was said in subsection 1, supra?
We do not believe the cases cited by counsel are authority for the view that the act of 1952 retained the protection of the statute of limitations which prevented the deportation of aliens who had entered the United States illegally. In Bertoldi, supra, the issue was whether a naturalization proceeding in process was saved by a savings clause. The court held that "rights in process of acquisition" were saved. No naturalization proceedings or right in process of acquisition is involved herein. De Luca, supra, did not involve a ground of deportation covered by the statute of limitations; neither section 241 (a) (1) nor 241 (d) with which we are concerned in the instant case was involved in De Luca. That case concerned the effect to be given to a judicial recommendation against deportation made prior to the 1952 act and which had been considered sufficient to prevent the deportation of De Luca although he had been convicted of narcotic violations which would otherwise have made him deportable (see also Ex parte Robles-Rubio, 119 F. Supp. 610, Calif.). The Service brought proceedings under the 1952 act on the theory that Congress intended to nullify the effect of the judicial recommendation against deportation because the clause in the 1952 act under which proceedings had been brought, no longer made reference as did its counterpart in the previous law, to the section permitting recommendations against deportation — the section which although dealing with convictions for crimes involving moral turpitude (a different deportable offense) had been interpreted to permit effective recommendations in narcotic convictions. This failure in the new act to refer to the section dealing with recommendations against deportation, a section which was continued as to crimes involving moral turpitude, and the fact that the Congress did not expressly provide for recommendations in narcotic cases were the bases of the Service inference. As we read De Luca, the court in refusing to draw the same inference stated: Nowhere does it appear that in narcotic cases Congress had the intent of nullifying previous recommendations against deportation or taking away the power of the court in narcotic proceedings to make recommendations against deportation. Nowhere in the law is it said that such things should be done. The power to make recommendations if convictions are for crimes involving moral turpitude, is continued — De Luca's convictions involve moral turpitude. Under all these circumstances there is doubt that Congress intended to deprive aliens like De Luca of the protection they previously had. This doubt would be resolved in their favor by applying the language of the savings clause which preserved "documents," "acts" and "status." The recommendation made by the court in his case had been an act in the form of a document and created a status for De Luca.
The conclusion in De Luca that a recommendation in a narcotic case is preserved is followed by this Board ( Matter of C---- M----, A-1776931, February 3, 1955, Int. Dec. No. 683).
The situation before us, while still not analagous, would be more like that in De Luca if the 1952 act merely provided for the deportation of aliens who entered illegally and had no period of limitations. But that is not the case. In providing for the deportation of aliens who had entered illegally, Congress did not merely reenact the "old" law and drop the reference to a period of limitations, leaving the intent to take away the ripened protection as a matter to be inferred from that action and silence. Here Congress spoke clearly to accomplish its purpose. In the 1952 act, Congress said nothing about a period of limitations and made the alien deportable if he had entered illegally under the law existing at the time of his entry. The command that an alien was to be deported regardless of the date of his entry was reiterated in section 241 (d), act of 1952. We have previously pointed out that it was the intent of Congress to accomplish this result. Our conclusion that Congress intended to remove the protection of the statute of limitations which was formerly applicable is not dependent upon statutory rearrangement and silence. There is no room for reasonable doubt on the point.
The results that would follow from counsel's contention reveal its unsoundness. De Luca does not prevent the application of section 241 (d) to a narcotic violator who had not received a recommendation against deportation. Such person would be deportable no matter when he entered and no matter when he was convicted. If counsel's view were followed, deportation of one who entered without a passport could be ordered on that ground only if the alien entered after December 23, 1947. This is because only such a person would not have been protected by the five-year period of limitation before the 1952 act went into effect. In view of the language of the act and the expressed intent of Congress, we do not believe De Luca can be authority for limiting the broad provisions of section 241 (d) in the manner suggested by counsel.
We note these further significant differences between the instant case and De Luca. (1) De Luca concerned something clearly in the savings clause — a document executed by the court (the recommendation against deportation). No such document is involved herein. (2) In De Luca the court's recommendation against deportation permitted the alien to retain his right to lawful permanent residence; the alien herein never had lawful permanent residence. (3) Furthermore, in De Luca, the court considered the narcotic convictions as involving moral turpitude, and pointed out that where convictions for crimes involving moral turpitude were concerned, a recommendation against deportation was still effective. This view would have resulted in a situation where the court could recommend against deportation if it viewed the crime from the aspect of moral turpitude, but could not make recommendation if it considered it solely as a violation of narcotic laws. No such inconsistency is involved as the result of our ruling which makes all aliens who entered illegally deportable whether the entry was prior to or after the act of 1952.
Counsel contends that since the warrant was issued prior to the 1952 act, the charges must be determined under the law in existence prior to 1952 and that it was therefore improper to consider charges placed under the 1952 act. We do not agree with counsel. An alien must be afforded due process, but otherwise, has no right to be deported in any particular manner as long as the provisions of law are followed. The function of the warrant is merely to bring the alien under the jurisdiction of the Immigration Service. It does not confine the Government to any particular type of charge as long as deportation is ordered upon a charge which the alien has been given full opportunity to meet ( Guiney v. Bonham, 261 Fed. 582, C.C.A. 9; United States ex rel. Catalano v. Shaughnessy, 197 F. (2d) 65, C.A. 2). There is nothing in the law which prevents the use of charges under the 1952 act where the warrant was served previous to that act ( United States ex rel. Circella v. Neelly, 115 F. Supp. 615, 624, N.D. Illinois, affd. 216 F. (2d) 33, C.A. 7; see United States ex rel. Boric v. Marshall, 4 F. Supp. 965). In none of the four cases cited by counsel on his point do we find in issue the question as to the propriety of ordering deportation of an alien under a charge placed under a law which became effective after the warrant of arrest was issued.
Counsel argues that since the unqualified expiration or termination of a statute without a savings clause destroys all rights and liabilities depending upon the statute, and since the laws which made the alien's entry in 1922 unlawful have expired, without provision having been made to save the ground of deportability, the alien cannot now be deported. Subsequently, we shall state our difference in opinion with counsel on the question as to the expiration of the laws in question. At this point, we will discuss our disagreement with the implication that the right of the Government to deport an alien who entered the United States prior to the date of the act of 1952 is dependent upon the existence of a law which made an alien's stay unlawful up to the very date of the passage of the act of 1952. This contention of counsel begs the issue, which is not whether the alien was previously deportable, but whether he is deportable under the act of 1952. The act of 1952 made aliens deportable who previous to it had been in the United States in violation of no immigration law ( United States v. Murff, supra; Matter of P----, E-1356, 5 IN Dec. 392; Matter of H----, A-6244791, December 15, 1954, Int. Dec. No. 668). Our power to order an alien's deportation is therefore not based upon the fact that the alien was in a deportable status prior to the act of 1952. It follows that if the act of 1952 requires his deportation, we cannot say it is not so because the alien could not be deported prior to the act of 1952. The charge against the alien under the act of 1952 is that at the time of entry, he was within one or more of the classes of aliens excludable by the law existing at the time of such entry. We have found he was excludable at the time of entry because he was not in possession of the documents required by law. Therefore, the charge should be sustained without regard to whether or not the law which was in effect at the time of his entry terminated prior to the enactment of the act of 1952. Cases cited by counsel on this point do not appear applicable.
Furthermore, we do not agree with counsel that the act of 1918, as amended by the act of 1921, was not continued in existence up to the time the act of 1952 went into effect. Despite an indication in Johnson v. Keating, 17 F. (2d) 50, C.C.A. 1, and 39 Op. Atty. Gen. 509, that the 1918 act, as amended, had been repealed insofar as immigrants were concerned (it is to be noted that counsel does not claim that respondent was an immigrant), the Chief Executive of the United States recited the 1918 act as extended by the 1921 act as authority for the promulgation of Executive Order 8430, issued on June 5, 1940, which sets forth the documents required of both immigrants and nonimmigrants for entry into the United States; the Congress of the United States in 1941 considered the 1918 act, as amended, a valid and existing law by amending it on June 21, 1941 ( 55 Stat. 252; 22 U.S.C. 223-226) and in 1952 further indicated its belief that the 1918 act, as amended, was in existence by making specific provision for the repeal of the 1918 act, as amended (section 403 (a) (15), act of 1952; see also National Surety Corp. v. United States, supra; and Flora v. Rustad, 8 F. (2d) 335, C.C.A. 8).
Decision overruled in United States ex rel. Polymeris V. Trudell, 284 U.S. 279, 76 L. Ed. 291, without discussion of the issue now under consideration.
Finally on this point, it was not the 1918 act which made the respondent deportable. The 1918 act merely created a condition of admission; it was the Immigration Act of 1917 which made the alien deportable as one excludable at time of entry ( United States ex rel. Vajta v. Watkins, 88 F. Supp. 51, S.D.N.Y., affd. 179 F. (2d) 137, C.A. 2). The 1917 act remained in full force and effect until repealed by the act of 1952 (section 403 (a) (13), act of 1952).
The preceding several pages may now be summarized as follows. At the time of the alien's entry, he was required to be in possession of a passport and to be inspected. He was not inspected and he did not have the passport. He therefore entered illegally and if proceedings had been brought within five years after his entry, he could have been deported. Such proceedings were not brought. The inability of the Government to deport him and his continued residence in the United States did not convert his illegal presence into legal presence. The 1952 act made him deportable despite the previous statute of limitations. The savings clause of the 1952 act did not protect the alien's right to remain in the United States illegally and furthermore was not applicable because of the specific provisions of section 241 (d) and the language involved in the charge itself. It was, therefore, proper to order the alien's deportation under section 241 (a) (1) and (2) of the act of 1952.
Counsel argues that section 34 of the 1917 act must be followed. This section related solely to "seamen." We have pointed out that the alien was not a "seaman" in the eyes of the immigration laws. The section therefore had no application to the alien, who entered without inspection. Furthermore, even if he were a seaman, the 1952 act specifically makes an alien deportable who entered without inspection and it does not differentiate the procedure which must be followed in giving him a hearing on the charge (See United States v. Vanbiervliet, 284 U.S. 590; Phillippides v. Day, 283 U.S. 48).
We come now to the fourth charge relating to the alien's participation in commercialized vice. The evidence establishes that from 1929 to 1931 and from 1939 to 1950, the alien earned his livelihood in illegal activities relating to the sale of liquor, the taking of numbers, and other gambling activities. His income from the operation of his illegal enterprises, in the later years, ran about $25,000 a year. He was convicted on several occasions for violation of lottery laws and on one occasion for violation of bootlegging laws. He is charged with being deportable under section 241 (a) (12) of the act of 1952 which makes deportable certain aliens who engaged in "unlawful commercialized vice, whether or not related to prostitution." The charge cannot be sustained.
In Matter of B----, A-5164327, Int. Dec. No. 601, we held that an alien who has engaged in unlawful commercialized vice after entry is not deportable under section 241 (a) (12) of the act as a member of a class specified in section 212 (a) (12) unless he was coming to the United States to engage in unlawful commercialized vice. The record does not establish that the alien herein was coming to the United States to engage in commercialized vice in 1922 and while there is some indication in connection with the alleged entry in 1931 that he reentered to pursue illegal activity in bootlegging narcotics, or counterfeiting, it is not substantial evidence and the fact of entry is not established. The fourth charge will not be sustained.
The fifth and sixth charges relate to an entry the Government claims as made by the alien in 1931. The sole evidence as to the occurrence of this entry consists of testimony of Government witness N---- who testified that about January or February 1931, he drove the alien to Mexico in an automobile borrowed from one O---- B---- in Pennsylvania. There is considerable doubt as to whether the trip could have occurred as alleged because of evidence introduced by counsel revealing that B---- was a resident of California at the time the trip was alleged to have occurred and was not in Pennsylvania at the time of the trip. The Government has failed to bear the burden of proof of establishing the alien's deportability on the fifth and sixth charges. They will not be sustained.
The first and seventh charges were not sustained by the special inquiry officer. We agree with his conclusion. Various objections as to the deprivation of due process have been considered and found to be without merit (See United States ex rel. Marcello v. Ahrens, 212 F. (2d) 830, C.A. 5, certiorari granted 348 U.S. 805). The alien received a fair and impartial hearing. It is argued by counsel that the alien's name appears upon a proscribed list. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), is quoted and we, therefore, assume by this that counsel refers to the action of the Attorney General in directing that action be taken by an agency to determine the deportability of certain "criminal or subversive" aliens. Whether or not the alien's name appears upon such a list, we do not know. Counsel's unsubstantiated charge is, of course, no proof that the name does so appear and we will not assume that it is so. We will add, however, that even if evidence of such a fact had been presented, it could not and would not have influenced the decision of this Board which is charged by law with making a decision as to deportability "only upon" the record presented to it (section 242 (b), act of 1952; 8 C.F.R. 242.54); and furthermore, has been charged by the Attorney General with the necessity of acting with complete freedom at arriving at a decision in any matter before it regardless of the interest of any other unit of the Department of Justice in the outcome of the case. Finally, our findings are not based upon the testimony of one witness in preference to another, but upon the alien's own testimony and matters of records created by law. It is charged the Government was a conscious militant participant in trial by newspapers. This grave charge is entirely unsubstantiated. Constitutional objections are not considered by this Board.
Order No. 45-54, April 23, 1954, from the Office of the Attorney General, states:
(1) Wherever the regulations confer upon any officer or the Board of Immigration Appeals a power to hear and decide, this power is to be exercised fully and faithfully. It is expected that such officers and the Board will exercise their independent judgment and such independent discretion as the regulations confer upon them.
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(3) It has for some time been the policy of this Department, publicly announced, to proceed with vigor against aliens who are in the United States illegally and whose criminal or subversive activities make their prompt deportation desirable in the national interest. This program will continue. However, neither the selection nor the identification of cases believed to be within the scope of this program is any responsibility of those exercising adjudicatory functions in deportation proceedings. Effectuation of the program has been, and continues to be, the responsibility of those charged with prosecuting duties. Accordingly, it is not intended that there be any departure from the regulations in the hearing and decision of any individual case, whether or not it is thought to fall within the policy of deporting criminal or subversive aliens. Those charged with the duty of hearing and deciding must give each alien a fair and impartial trial, without prejudgment on the basis of assertions by any official having the function of prosecuting these cases.
Order: It is ordered that the appeal be dismissed and the alien be deported from the United States, pursuant to law, on the charges numbered two and three in the caption of this order.