A-1981924
Decided by Board April 4, 1949
Place of deportation — "Country" (Poland) — Section 20 of the Immigration Act of 1917 — Pardon — Legislative grant — Deportation bar — Section 19 of the Immigration Act of 1917 — Effect of repeal of State "pardon" statute (Pennsylvania) after alien's conviction, but while still serving sentence — "Sentenced more than once" — Meaning thereof, as contemplaced by Section 19 of the Immigration Act of 1917. "Res judicata" — Administrative decisions of Executive department — De novo proceedings.
1. An alien born in that portion of Austria — Hungary which became a part of Poland after World War I is deportable under section 20 of the Immigration Act of 1917 to Poland, and as to the assertion that his birthplace is now under the "control" of the U.S.S.R., there is no showing that the United States has recognized this division of Poland following World War II.
2. The Pennsylvania Pardon Act which was repealed on September 1, 1939, applies only to those cases where the punishment had been completely endured by September 1, 1939.
3. Though "more than one sentence" was imposed in 1935 by the court for two separate offenses committed on different occasions, these "two" sentences do not constitute being "sentenced more than once" as contemplated in section 19 of the Immigration Act of 1917, under the rule enunciated in Fong Haw Tan v. Phelan, 333 U.S. 6.
4. "Res judicata," in the technical sense, does not apply to administrative decisions of the Executive department, and deportation proceedings will be instituted de novo against an habitual criminal alien, especially where the very nature of the evil sought to be remedied is manifest by the commission of another crime after the alien has been given a chance to rehabilitate by reason of the termination of the prior proceedings.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once after entry for crimes — Solicitation to commit sodomy; solicitation to commit sodomy; larceny and receiving stolen goods.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the Assistant Commissioner, November 5, 1948, directing his deportation to Poland on the above-stated charge.
The respondent, now 66 years of age, has resided in the United States for approximately 40 years. He testified that he was born in that portion of Austria — Hungary which became a part of Poland after World War I, but that the place of his birth is now under the control of the Union of Soviet Socialist Republics. The Assistant Commissioner finds the respondent to be a national of Poland although he has never resided in that country since it acquired independence.
We are in accord with this finding by the Assistant Commissioner. Article 4 of the treaty signed by the principal allied powers at Versailles June 28, 1919, restoring Poland as an independent nation, reads as follows:
"Poland admits and declares to be Polish nationals ipso facto, and without the requirement of any formality, persons of German, Austrian, Hungarian, or Russian nationality who were born in the said territory of parents habitually resident and even if at the date of the coming into force of the present treaty they are not themselves habitually resident there (66th Cong. 1st sess., S. Doc. 65, pp. 7, 16).
The question of whether an alien born in territory which subsequently became the independent nation of Poland is deportable under section 20 of the 1917 act to that recreated country has been decided in the affirmative by the Supreme Court of the United States. The Supreme Court said, "The term `country' is used in section 20 (1917 act) to designate, in general terms, the state which, at the time of deportation includes the place from which the alien came. Deportation to Poland is now legal." ( U.S. ex rel. Nicolai Mensevich v. Tod, 264 U.S. 134, 136-137 (Feb. 18, 1924). Although the respondent asserts that his birthplace is now under the control of the Union of Soviet Socialist Republics, there is no showing that the United States has recognized this division of Poland following World War II.
Deportation proceedings predicated upon the respondent's conviction on the two indictments charging solicitation to commit sodomy and sentence on October 23, 1935, to terms of not less than 2 years or more than 4 years, to run consecutively, were instituted under a warrant of arrest issued February 19, 1936. This Board on July 10, 1945, terminated the proceedings instituted under the 1936 warrant of arrest on the ground that section 181 of the act of March 31, 1860, P.L. Pa. 382 (title 19, Purdon's Penn. Stats., 893) provided the respondent with a "legislative" pardon although the statute above quoted was repealed subsequent to the respondent's conviction but while still serving sentence (following Matter of R----, 56011/812, Oct. 8, 1942).
Subsequently, on May 20, 1946, we reversed our holding in the R---- case and concluded that the Pennsylvania Pardon Act applied only to those cases where the punishment had been completely endured by September 1, 1939, the date of the repeal of the pardon statute ( Matter of S----, 55845/168). This position has been upheld by the Circuit Court of Appeals, Third Circuit, in U.S. ex rel. Forino v. Garfinkel, 166 F. (2d) 887, 1947.
The instant proceeding is had under a warrant of arrest issued October 27, 1947, charging the respondent as being a two-time criminal and using as one of the crimes his conviction in 1935 of solicitation to commit sodomy, together with more recent crimes committed March 11, 1947, to wit, larceny and receiving stolen goods, for which he received a sentence of not less than 6 months or more than 3 years.
Although there were two indictments charging the commission of the same crime on two separate occasions and there was a sentence to consecutive terms of more than 1 year on each indictment, the respondent was sentenced for each of the offenses in the same court before the same judge and on the same day. Under the rule enunciated by the Supreme Court in the case of Fong Haw Tan v. Phelan, 92 L. Ed. Adv. 331, October term, 1947 ( 333 U.S. 6), the two sentences imposed in 1935 do not constitute a sentence more than once as contemplated in section 19 of the 1917 act. For the same reason, the crimes of larcency and receiving stolen goods of which the respondent was convicted March 27, 1947, and which offenses were likewise committed at the same time do not by themselves constitute a sentence more than once within the meaning of section 19 under the Supreme Court's ruling.
The evidence before us adequately establishes that the respondent committed the crimes referred to above and has been sentenced to a year or more on two separate occasions, having been released after serving sentence for the crimes committed in 1935, then sentenced again for crimes committed in 1947. He is therefore subject to deportation provided the crimes committed in 1935 are not considered res judicata because of our decision renedered July 10, 1945. The sole issue, therefore, is whether new deportation proceedings may be instituted under the pertinent provisions found in section 19 of the 1917 act (sentenced more than once after entry) based upon a crime administratively acted upon and settled by a previous order.
The question before us in the earlier case concerned whether or not the respondent was at the time of the institution of the proceedings subject to deportation as an alien who at any time after entry had been sentenced more than once to imprisonment for terms of a year or more because of conviction in this country of crimes involving moral turpitude. We found administratively that he was not because of the then accepted interpretation of the Pennsylvania Pardon Statute ( supra).
The authority of Congress to impose continuing conditions relative to an alien's residence in the United States is not open to doubt (cf. Pearson v. Williams, 202 U.S. 281, 284, May 14, 1906). By reason of a changed interpretation of the pertinent statutes together with an additional affirmative act on the part of the respondent (the 1947 criminal conviction) he now comes within the continuing conditions imposed by Congress. While it is well established that administrative decisions of the Executive department of the Government cannot constitute res judicata in the technical sense ( Pearson v. Williams, supra, p. 285, and cases cited therein), it is conceded that in administrative actions as well as in judicial proceedings it is both expedient and necessary that there should be an end to litigation.
Here we are concerned with a provision of the immigration laws designed by Congress to remove from our midst aliens who, regardless of how long they have resided among us, have proven unworthy of the haven afforded them because of their continued criminal record. By reason of this mandate from Congress we deem it both expedient and necessary to institute deportation proceedings de novo against a habitual criminal alien, using as one of the elements on the charge a crime which served as the basis for a prior deportation proceeding. Especially is this so because the very nature of the evil we seek to remedy is manifest by the commission of another crime after the alien has been given a chance to rehabilitate by reason of the termination of the prior procedings. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed.