A-5885722
Decided by Board February 25, 1948
Filipino — Entry into United States before May 1, 1934, as a "national" — Deportability as "alien" after May 1, 1934 — Sentenced more than once on conviction of crimes committed on and after May 1, 1934.
Where a Filipino last entered the United States before May 1, 1934, as a "national," he is subject to deportation like any other alien on the ground he was sentenced more than once on conviction of crimes involving moral turpitude committed on and after May 1, 1934, inasmuch as the date of his entry is not a necessary element in the deportation process and on and after May 1, 1934, he was placed in the category of an alien for immigration purposes.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once — Grand theft from the person; Burglary second degree.
BEFORE THE BOARD
Discussion: This case presents a motion by the Acting Commissioner dated December 4, 1947, that these proceedings be canceled in view of the holding in Del Guercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9th, 1947).
The record establishes that respondent herein, who is an inmate of San Quentin Prison, San Quentin, Calif., was ordered deported to the Philippine Islands, November 7, 1946, on the ground that subsequent to May 1, 1917, he had been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude committed after entry, to wit: Grand theft from the person; and burglary, second degree.
The respondent is 36 years old and a native and citizen of the Philippine Islands. He last entered the United States at the port of Seattle, Wash., May 6, 1927, for permanent residence.
On May 24, 1934, respondent was convicted in California, on his plea of guilty, of the crime of grand theft from the person committed May 12, 1934, and was sentenced to the State prison at San Quentin to be confined according to law. He served 4 years' imprisonment on this offense.
On April 26, 1946, respondent was again convicted in California of the crime of burglary, second degree, committed February 23, 1946, receiving a sentence of 1 to 15 years.
The foregoing action was affirmed by this Board, November 19, 1946.
In his motion the Acting Commissioner refers to the recent ruling in the Gabot case, supra. He points out that in that case the court held that a Filipino who entered the United States prior to May 14, 1935, entered as a national of the United States and not as an alien; and that on the basis of such entry prior to May 14, 1935, the Filipino could not be considered an alien at the time of his entry so as to bring the "turpitude" statute into play.
In the present case, the Acting Commissioner continues, the respondent, a native of the Philippine Islands, last entered the United States on May 26, 1927, and at the time of his last entry he was thus a national of the United States. After citing section 19, Immigration Act of 1917, the Acting Commissioner concluded:
This section reads pertinent hereto:
* * * any alien who is hereafter sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude, committed within 5 years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. [Italics supplied.]
The reasoning of the court in the Gabot case to the effect that the word "entry" as used in the foregoing section of law must be understood as though it read "entry as an alien" appears equally applicable to both deportation charges set forth in the quoted portion of the statute ( supra). It therefore must be concluded that the deportation charge in the instant case must likewise fall inasmuch as it is based upon a like provision of the "turpitude" status alluded to by the court in its opinion in the Gabot case.
We cannot accept the broad interpretation given the Gabot case by the Service.
Gabot, a native of the Philippine Islands, legally entered Hawaii on September 9, 1927. He last entered from Mexico, March 20, 1934. On October 11, 1934, he killed a man and was convicted of murder in the second degree.
Thus it will be seen that the court was dealing with the ground of deportation in section 19, Immigration Act of 1917, which has reference to its perpetration within five years of last entry; and not to that portion of the statute dealing with an alien sentenced more than once to imprisonment for a year or more for crimes involving moral turpitude ( Matter of C----, 55894/7, February 1948). In such cases, we hold, the date of entry is not necessarily the controlling factor, although it is imperative that the causes of deportation occurred subsequent to May 1, 1934.
In the Gabot case the court stated the Philippine Independence Act (48 U.S.C.A. 1281), although it became a law of the United States in March 1934, was by its terms not to be effective until the Philippine people accepted it. Formal acceptance became effective May 14, 1935. It appears, on the contrary, that the Philippine Independence Act, in accordance with section 17 of the act, became effective May 1, 1934, upon acceptance by concurrent resolution of the Philippine Legislation. See sections 1238, 1247, title 48, U.S.C.A. See also Hackworth, Digest of International Law, volume 1, page 496. By section 8 of the act, with exceptions not pertinent here, it is provided that this section and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands, who are not citizens of the United States, shall be considered as if they were aliens.
We may repeat some of the court's reasoning in the Gabot case:
* * * The Director's construction of the statute containing the phrase "shall be considered as if they were aliens" is that from its effective date whenever any Philippine not a citizen of the United States stands before the immigration officials under a charge that he should be deported, his case must be considered as though he had been an alien during his entire stay in the United States. The trial judge thought differently. He reasoned that any change in the Philipino's status was effective from the effective date of the statute, and that it was not intended to be effective retroactively, and that when Gabot came across the line in March 1934, he was not an alien, and, therefore, the "turpitude" statute was not applicable.
We agree with the trial judge. * * * Of course, the issue here is not concerned with the subject of ex post facto law, yet it approaches it in principle, for if the Director is right, the appellee is to be forceably deported only by the retrospective application of a law which has constituted a perfectly legal act, when done, a necessary element for the deportation.
* * * In summation we hold, as did the trial judge, that Gabot was not an alien when he crossed the international line in March 1934, and that legally he could not be considered an alien at that time so as to bring the "turpitude" statute into play. * * *
Thus it will be seen that the crimes upon which the present respondent's deportation has been decreed occurred subsequent to the effective date of the Philippine Independence Act, namely May 1, 1934 (see footnote 2), on and after which date, of course C---- was placed in the category of an alien for immigration purposes. His entry prior to that date is not a necessary element for deportation on the particular charge set forth above. Therein this case is clearly distinguishable from the Gabot case and, as we already indicated, the court did not, in our opinion, intend the broad interpretation to it by the Acting Commissioner.
Order: The motion is denied.