A-2669541
Decided by the Board June 1, 1953
Fair hearing — Administrative Procedure Act; sections 242 (b) and 403 (a) (47) Immigration and Nationality Act — Ex post facto — Deportability under section 241 (a) (11) — Retroactive application — Savings clause, section 405 (a) — Narcotic violation and marihuana conviction not inconsistent charges — Suspension and deportation, section 244 (a) (5) — Good moral character — Eligibility.
(1) Publicity, and a hearing open to the public, do not preclude a fair hearing in deportation proceedings.
(2) Section 242 (b) of the Immigration and Nationality Act lays down the "sole and exclusive" procedure for determining the deportability of an alien, and a hearing held in conformity therewith is within the pattern and meets the standards of the Administrative Procedure Act, even though section 403 (a) of the Immigration and Nationality Act repealed the provision of law exempting the Immigration and Naturalization Service from compliance with sections 5, 7, and 8 of the Administrative Procedure Act.
(3) An alien who committed a narcotic offense in December 1937 is deportable under section 241 (a) (11) of the Immigration and Nationality Act without violating the ex post facto provisions of the Constitution even though when the word "marihuana" was added to the act of February 18, 1931, by section 21 of the Alien Registration Act of 1940, specific provision was made that no alien should be deportable by reason of such amendment for an act committed prior thereto since the inhibition against the passage of ex post facto law applies only to criminal laws. ( Mahler v. Eby, 264 U.S. 32 (1924) and Harisiades v. Shaughnessy, 342 U.S. 580 (1952).)
(4) Section 241 (a) (11) of the Immigration and Nationality Act is retroactive notwithstanding the savings clause contained in section 405 (a) of that act.
(5) The two charges in the warrant of arrest that the alien is deportable under section 241 (a) (11) because (1) he had been convicted of violation of a law relating to illicit traffic in narcotic drugs, and (2) he had been convicted of violation of law governing taxing, etc., of marihuana, are not repugnant and both are sustained.
(6) Section 244 (a) (5) of the Immigration and Nationality Act is construed as requiring that before an application for suspension may be submitted at least 10 years must have elapsed after the ground for deportation arose, and that during the 10 years immediately preceding the application the alien must prove continuous physical presence in the United States and good moral character.
(7) An alien who refused to answer the questions of a congressional committee on the ground that the answers might incriminate him is found not to be a desirable resident of the United States and is, therefore, denied suspension of deportation.
CHARGES:
Warrant: Act of 1952 — Convicted of violation of law relating to illicit traffic in narcotic drugs, section 241 (a) (11).
Act of 1952 — Convicted of violation of law governing taxing, etc., of marihuana, section 241 (a) (11).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer, dated February 20, 1953, directing the respondent's deportation.
The respondent is a 43-year-old male, native of Tunisia and apparently of Italian nationality, who has resided in the United States since October 7, 1910. He last entered during 1936 or 1937 after a visit of a few hours in Mexico. On October 29, 1938, he was sentenced to imprisonment for a term of 1 year and 1 day following his conviction on a plea of guilty to an indictment containing two counts. The first count charged that on or about December 6, 1937, he feloniously transferred to another individual a quantity of marihuana, which transfer was not made pursuant to a written order on the required form, in violation of the act of August 2, 1937 (26 U.S.C. 2591). Count 2 charged a similar unlawful transfer of marihuana on or about December 15, 1937.
By brief and at the oral argument, counsel raised a number of contentions. They assert that the hearing was unfair because of adverse newspaper publicity resulting from a press release of former Attorney General McGranery at the time the immigration warrant of arrest was served and because members of the press were permitted to be present during the hearing before the special inquiry officer. Counsel do not argue that there is any prohibition, either in the statute or in the regulations, against deportation hearings being opened to the public, and we do not believe that either of the factors mentioned resulted in the preclusion of a fair hearing to the respondent. This is particularly so with respect to the issue of deportability in this case since there is no dispute as to the facts.
Another contention of counsel is that the hearing was void because of asserted failure to comply with the Administrative Procedure Act. They rely on section 403 (a) (47) of the Immigration and Nationality Act which repealed the provision of law exempting the Immigration and Naturalization Service from compliance with sections 5, 7, and 8 of the Administrative Procedure Act. We have carefully considered the argument which was advanced and the excerpts from the speeches of Senator McCarran and Congressman Walter to which counsel referred. We believe that the following statement appearing in the conference report is illuminating:
U.S. Code Congressional and Administrative News, 82d Cong., 2d sess., vol. 2, p. 1754.
Having extensively considered the problem of judicial review, the conferees are satisfied that procedures provided in the bill, adapted to the necessities of national security and the protection of economic and social welfare of the citizens of this country, remain within the framework and the pattern of the Administrative Procedure Act. The safeguard of judicial procedure is afforded the alien in both exclusion and deportation proceedings.
We think that the foregoing makes it abundantly clear that it was not intended that deportation proceedings should be subject to the specific provisions of the Administrative Procedure Act, but rather that the procedural requirements, laid down in section 242 (b) of the Immigration and Nationality Act, were considered by Congress to be within the pattern of the Administrative Procedure Act and to meet the standards of that act. We doubt that Congress could have expressed this more clearly than it did by the use of the following language in section 242 (b): "The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section." We hold that the procedure which was followed in the respondent's case was entirely in accord with that specified in section 242 (b) of the Immigration and Nationality Act and regulations made pursuant thereto, and that counsel's contention relating to the Administrative Procedure Act must be rejected.
Counsel also contend that the proceeding violates the due process and ex post facto provisions of the Constitution. It is true that the respondent committed the narcotic offense in December 1937 and that, when the word "marihuana" was added to the act of February 18, 1931, by section 21 of the Alien Registration Act of 1940, specific provision was made that no alien should be deportable by reason of such amendment for an act committed prior thereto. However, we consider the situation as being no different from that existing in Mahler v. Eby, 264 U.S. 32 (1924). In that case, the aliens were convicted in 1918 and their deportation was sought under the act of May 10, 1920. It was there contended that the act of May 10, 1920, was an ex post facto law, because the offense had been committed prior to its enactment, and that the proceedings were without due process of law. These contentions were rejected, the Court stating that the inhibition against the passage of an ex post facto law applied only to criminal laws. The same contentions were again rejected in Harisiades v. Shaughnessy, 342 U.S. 580 (1952). Hence, we find this contention of counsel to be without merit.
It is also argued by the respondent's counsel that section 241 (a) (11) of the Immigration and Nationality Act, under which the Service contends the respondent is deportable, cannot be given a retroactive application. We agree that the savings clause contained in section 405 (a) of the Immigration and Nationality Act is very broad. Yet counsel has not cited any specific language in that section on which they desire to place reliance. Our examination of section 405 (a) does not disclose any specific provision particularly applicable to the respondent's case, and we believe that the phrase therein reading, "unless otherwise specifically provided," defeats his claim because section 241 (d) does, in fact, specifically provide as follows:
Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this act.
For the proposition that section 241 (a) (11) cannot be given a retroactive application, counsel also argue that this paragraph distinguishes between narcotic offenses and marihuana offenses; that both charges cannot be sustained; that, if any charge can be sustained, it is the marihuana charge; and that there is no specific provision in the clause dealing with marihuana which would make it retroactive. We have been unable to find, in counsel's briefs or oral argument, any elaboration of their view that both charges cannot be sustained. We find no repugnance in these two charges. Section 241 (a) (11) authorizes the deportation of an alien "* * * who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of any law or regulation governing or controlling the taxing * * * of * * * marihuana, * * *."
The only difference in the two clauses quoted above, insofar as the question of whether they are retroactive is concerned, is that in the first clause appears the words "at any time" and these words do not appear in the second clause. Since the clause relating to narcotic drug addicts, which precedes the clauses quoted above, is prospective in operation, it is possible that the words "at any time" were inserted in the next clause to emphasize that it was retrospective, and that it was not considered necessary to again use this phrase in the last clause. The respondent's one conviction is within the purview of both clauses quoted above, that is, he has been convicted of a violation of a law relating to the illicit traffic in narcotic drugs and he has been convicted of a violation of a law controlling the taxing of marihuana. In view of the foregoing, we conclude that the respondent is deportable on the two charges contained in the warrant of arrest.
Counsel also contend that, before a valid order of deportation can be entered, it is necessary that the place of deportation be designated. We must reject this contention on the basis of our decision in Matter of R----, A-4678936 Int. Dec. 411, decided December 4, 1952, approved by Attorney General December 29, 1952.
The remaining question relates to the respondent's motion to reopen the proceeding to permit the filing of an application for suspension of deportation, which motion was denied by the special inquiry officer. At the oral argument, the Service representative contended that, because of the respondent's incarceration in a federal penitentiary from November 1938 to August 1939, he cannot meet the requirements of section 244 (a) (5) of the Immigration and Nationality Act.
It might be argued that the words "assumption of a status" in sec. 244 (a) (5) should be construed, in the respondent's case, to mean the date when he assumed the status of a deportable alien, that is, on December 24, 1952, when the immigration and Nationality Act became effective, and that he cannot prove physical presence and good moral character for ten years thereafter. The Service has not urged this interpretation, and we deem it unnecessary to discuss such an obviously strained construction.
The pertinent portion of section 244 (a) (5) is as follows:
SEC. 244. (a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation * * * in the case of an alien who — * * * (5) is deportable under paragraph * * * (11) * * * of section 241 (a) for an act committed or status acquired subsequent to such entry into the United States * * * has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; * * *. [Emphasis supplied.]
The Service, relying primarily on the word "immediately," contends that the emphasized portion means that an applicant for suspension of deportation under paragraph (5) must establish physical presence and good moral character during a period of 10 years immediately following the commission of an act or the assumption of a status constituting a ground for deportation. Applying this contention to the respondent's case, it is claimed that, by the use of the word "immediately," the 10-year period during which the requirements mentioned must be established commenced on December 6 or 15, 1937 (the dates when the offenses were committed) if we depend on the words "commission of an act," or on October 29, 1938 (the date of conviction), if we rely on the phrase "assumption of a status." Since it was not the commission of the offense, but the conviction, which constitutes a ground for deportation, we may disregard the dates December 6 or 15, 1937. The Service is contending that the respondent must establish good moral character from October 1938 to October 1948 and that, since he was in prison from November 1938 to August 1939, he is precluded from meeting this requirement because of the provision contained in section 101 (f) (7) which is to the effect that no person shall be regarded as of good moral character if he has been confined to a penal institution for 180 days or more during the period for which good moral character is required.
Taking into consideration the phrase in section 244 (a) (5) reading, "during all of such period he has been and is a person of good moral character," we find that, if we were to adopt the construction urged by the Service, it would be tantamount to saying that the respondent must establish that he is now a person of good moral character and that he was a person of good moral character from 1938 to 1948 but that it is immaterial whether he was physically present in the United States or of good moral character from 1949 to 1952. In the case of an alien who became deportable in 1925, it would mean that he would have to prove physical presence and good moral character from 1925 to 1935 and that he need not prove such requirements from 1935 to 1952. Since there is an obvious ambiguity concerning the period during which such an applicant must establish physical presence and good moral character, we must construe the statute to give effect to the intention of Congress.
It is well settled that a case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning, and that a statute should be construed so as to carry out the intent of the legislature, although such construction may seem contrary to the letter of the statute. In addition, section 244 (a) (5) was specifically made applicable to persons deportable on criminal grounds by the inclusion of paragraph (4) of section 241 (a), which paragraph relates solely to aliens convicted of crimes involving moral turpitude. Hence, Congress must have intended that reformed criminals should be in a position to apply for suspension of deportation. Yet, since almost all aliens of this class would probably be confined for over 180 days after becoming deportable, the effect of adopting the construction urged by the Service would be to virtually eliminate the possibility that a reformed criminal could ever apply for suspension under paragraph (5), regardless of whether 20 or 30 years had elapsed since he was released from prison and regardless of his complete rehabilitation since that time. Other rules of statutory construction, which are pertinent to our consideration, are that a law will not be strictly read if such reading would result "in the emasculation or deletion of a provision which a less literal reading would preserve" and that a remedial statute should be construed liberally to carry out the purposes of its enactment.
Stewart v. Kahn, 78 U.S. 493, 504 (1870).
Wilkinson v. Leland, 27 U.S. 627, 662 (1829); Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); Ozawa v. United States, 260 U.S. 178, 194 (1922).
Markham et al. v. Cabell, 326 U.S. 404, 409 (1945).
Stewart v. Kahn, 78 U.S. 493, 504 (1870).
In determining the construction which should be placed on the statutory provision under consideration, we note that paragraph (1) of section 244 (a) requires physical presence and good moral character for "not less than 7 years immediately preceding the date of such application"; paragraph (2), "not less than 5 years immediately preceding his application"; paragraph (3), "not less than 5 years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation"; and paragraph (4), "not less than 10 years after such entry and immediately preceding his application." In each of these paragraphs, as well as in paragraph (5), the world "immediately" was used in denoting the period during which physical presence and good moral character were to be proved. In paragraphs (1), (2), and (4), where the period is that preceding the application, the word "immediately" was appropriate and necessary to prevent any claim that proof of physical presence and good moral character during some earlier period would be a compliance with the statute. It is readily understandable that the framers of the legislation, having found it incumbent to employ the word "immediately" in three paragraphs, may have inadvertently inserted it in paragraphs (3) and (5) without recognizing that it might result in a construction contrary to the intended scope of this provision.
We have also observed that in both paragraphs (3) and (5), which are the two paragraphs relating to deportability on grounds arising subsequent to entry, the language used was identical with the exception that paragraph (3) specifies 5 years rather than 10 years. In commenting on paragraphs (3) and (5), the following appears in House Report 1365:
The third category * * * provides for the adjustment of status * * * upon a showing of 5 years' continuous physical presence immediately following the commission of an act or the assumption of a status constituting a ground for deportation, good moral character during that period * * *.
The fifth category * * * provides for the adjustment of status * * * upon a showing of 10 years' continuous physical presence after the commission of an act, or the assumption of a status constituting a ground for deportation, good moral character during that period * * *.
The language quoted above is found in identical form at page 25 in Senate Report 1137 relating to S. 2550. That Congress did not attach any particular significance to the word "immediately" in paragraphs (3) and (5) is shown by the fact that in both the Senate and House reports the word "immediately" was used in the comment on paragraph (3), and in both reports it was omitted with reference to paragraph (5), the specific provision with which we are here concerned.
While it might be argued that Congress was endeavoring to place certain added restrictions on the granting of suspension to persons of the criminal class, we do not think such an argument would be tenable. This would ignore the fact that precisely the same language is used in paragraph (3) which, by its terms, does not apply to persons of the criminal class. Furthermore, if we were to adopt the construction urged by the Service, we would have to apply the same rule under paragraph (3) which would mean that such an alien would be forever precluded from applying for suspension if, during the first 5 years after becoming deportable, he committed some act which militated against the establishment of good moral character, but that he would not be barred if the same act or a more serious offense were committed after the expiration of 5 years.
In analyzing the provisions of paragraphs (2) to (5) inclusive of section 244 (a), we find that paragraphs (2) and (4) require a specified period of physical presence and good moral character immediately preceding the application, and that paragraphs (3) and (5) require such a period following the date that an alien became deportable. Paragraphs (2) and (4) relate to aliens excludable at the time of entry and such an alien would, therefore, be subject to deportation immediately following entry. Hence, the requirement in paragraph (2) of 5 years' physical presence after the last entry would also constitute a requirement that 5 years must have elapsed after the date the alien became deportable. The same situation exists with respect to paragraph (4) in which there is a specific statement relating to "10 years after such entry." It is clear from the language of paragraphs (3) and (5) that a period of 5 or 10 years must elapse after the date the alien became deportable. However, this requirement could not have been incorporated in paragraphs (3) and (5) merely by requiring proof of physical presence and good moral character for either 5 or 10 years prior to the application, for in that case a person who had been physically present in the United States for 5 or 10 years and who then became deportable could immediately apply for suspension of deportation, assuming that he was also able to establish good moral character.
After carefully reviewing the legislative history and section 244 (a) in its entirety, we believe that in paragraphs (2) to (5) Congress was concerned with two requirements: (a) That physical presence and good moral character must be proved for 5 or 10 years preceding the application, and (b) that 5 or 10 years must elapse after the alien became deportable and before he might apply for suspension. It is our considered opinion, therefore, that paragraph (5) must be construed as requiring that, before an application for suspension may be submitted, at least 10 years must have elapsed after the grounds for deportation arose, and that during the 10 years immediately preceding the application, the alien must prove continuous physical presence in the United States and good moral character. In view of the foregoing, we conclude that the respondent is not barred from applying for suspension of deportation merely because he was confined in a penal institution during the period from November 1938 to August 1939.
As previously indicated, the respondent's motion to reopen the proceedings in order to permit the filing of an application for suspension of deportation was denied by the special inquiry officer. The latter's order indicates that he took this action because he had informed counsel at the hearing that applications for suspension of deportation or voluntary departure might be submitted and counsel declined to apply for either of these forms of relief. Because of the failure to make timely application for suspension of deportation, the record is not as complete as might be desirable. At the oral argument, the respondent's counsel stated that he believed that the hearing should be reopened unless the Service was prepared to permit the application for suspension to be considered by us notwithstanding the fact that no formal application had been made at the hearing. Under the circumstances, we will proceed to a consideration of whether suspension of deportation should be granted in this case.
Counsel is aware that 8 C.F.R. 244.3 permits the consideration of confidential information, under certain circumstances, in connection with the question of whether voluntary departure or suspension of deportation should be granted. However, in the respondent's case, we have no knowledge as to whether the Service has a confidential file and we will consider only the record, consisting of the hearing and exhibits, in reaching a decision.
In the motion to reopen, it was asserted that the respondent first entered the United States at the age of 10 months; that he has been a person of good moral charatcer during the last 10 years; and that his deportation would result in exceptional and extremely unusual hardship to the alien, his citizen wife and four minor citizen children. At the hearing, the respondent testified that he is in the real estate business and the coin-operated music box business. Counsel did not set forth, in his motion, any facts which would indicate that the respondent's deportation would, in fact, result in exceptional and extremely unusual hardship to the alien or to his wife or his children. We must take cognizance of the fact that both committees, in their reports to Congress on their respective bills (S. 2550 and H.R. 5678), stressed the restrictive purpose of the phrase "exceptional and extremely unusual hardship." The following appears at page 25 in Senate Report 1137 on S. 2550, 82d Cong., 2d sess., and, with the exception of the last three sentences, is contained in almost identical form in the House report:
H. Rept. 1365 in U.S. Code Congressional and Administrative News, 82d Cong., 2d sess., vol. 2, p. 1718.
The term "exceptional and extremely unusual hardship" requires some explanation. The committee is aware that in almost all cases of deportation, hardship and frequently unusual hardship is experienced by the alien or the members of his family who may be separated from the alien. The committee is aware, too, of the progressively increasing number of cases in which aliens are deliberately flouting our immigration laws by the processes of gaining admission into the United States illegally or ostensibly as nonimmigrants but with the intention of establishing themselves in a situation in which they may subsequently have access to some administrative remedy to adjust their status to that of permanent residents. This practice is grossly unfair to aliens who await their turn on the quota waiting lists and who are deprived of their quota numbers in favor of aliens who indulge in the practice. This practice is threatening our entire immigration system and the incentive for the practice must be removed. Accordingly, under the bill, to justify the suspension of deportation, the hardship must not only be unusual but must also be exceptionally and extremely unusual. The bill accordingly establishes a policy that the administrative remedy should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable. Hardship or even unusual hardship to the alien or to his spouse, parent, or child is not sufficient to justify suspension of deportation. To continue in the pattern existing under the present law is to make a mockery of our immigration system.
While we doubt that the alien could establish that his is an "exceptional and extremely unusual hardship" case and while there may well be some question whether he could establish good moral character, we will assume, for the purpose of this decision, that he would be able to establish all the requirements specified in section 244 (a) (5) of the Immigration and Nationality Act. As against any evidence he might present, there are the record of his conviction in 1938 for two transfers of bulk marihuana totaling 380 ounces; a Federal Bureau of Investigation Report which shows that he was arrested on several occasions, that most of the charges were dismissed but that in 1930 he was sentenced to 9 to 14 years for assault and robbery for which offenses he was pardoned on July 25, 1935; clippings from newspapers published in New Orleans, La., which the respondent's own counsel submitted and which refer to the respondent as a racketeer, "number one mobster in Louisiana," etc.; and his refusal to testify before the Kefauver committee.
With respect to the latter matter, the respondent was found guilty in the District Court for the Eastern District of Louisiana on six counts of an indictment charging contempt of the United States Senate for refusing to answer certain questions before a Senate subcommittee. He had refused to answer 166 questions on the ground that the answers would tend to incriminate him, but at the trial he was found not guilty on all but six counts relating to six questions. On appeal, his conviction was reversed and a judgment of acquittal was rendered. In Mahler v. Eby, Supra, at page 42, the Supreme Court, in discussing the question of what evidence would warrant the finding that an alien was an undesirable resident, clearly indicated that the refusal of an alien to answer questions was an attitude from which it might well be inferred that what would be revealed by the answers would not add to the alien's desirability as a resident. Similarly, we believe that in the respondent's case, although he was acquitted by the appellate court, his refusal to answer questions on the ground that the answers might incriminate him does not indicate that he is a desirable resident. Section 244 (a) specifically provides that "the Attorney General may, in his discretion, suspend deportation * * *." It is our considered opinion that the respondent's case is not one which merits the discretionary relief of suspension of deportation and that the order of deportation entered by the special inquiry officer should be approved. We will, therefore, dismiss the appeal.
Marcello v. United States, 196 F. (2d) 437 (C.A. 5, 1952).
Order: It is ordered that the appeal be and the same is hereby dismissed.