A-6093609
Decided by Board December 9, 1949 Decided by Board June 27, 1950
Previous arrest and deportation — Permission to reapply thereafter — Act of March 4, 1929, as amended — Whether original deportation was had "in pursuance of law" — Right to a hearing de novo on the basis of Sung v. McGrath ( 339 U.S. 33).
1. Under the circumstances in this case, the finding is justified that the alien's original deportation was had "in pursuance of law" as of the time of her deportation, and subsequent laws or interpretation of laws cannot be pleaded to vitiate a former order. (See 3 IN Dec. 83, 605.)
2. Where the warrant of arrest was served years before the Administrative Procedure Act of 1946 was enacted, the mere fact the proceedings were reopened (and reopened hearings were conducted during 1947) does not entitle the alien to a hearing de novo on the basis of the decision of the Supreme Court in Wong Yang Sung v. J. Howard McGrath (Feb. 20, and Mar. 13, 1950, 339 U.S. 33, 908).
CHARGES:
Warrant: (1) Act of 1917 — Entered by false and misleading statements.
(2) Act of 1929 — Arrested and deported — No permission to reapply before March 4, 1929.
(3) Act of 1917 — Reentered after arrest and deportation as prostitute.
(4) Act of 1917 — Prostitute at the time of entry.
(5) Act of 1924 — No immigration visa.
Lodged: (6) Act of 1917 — Found managing a house of prostitution.
(7) Act of 1917 — Inmate of a house of prostitution.
BEFORE THE BOARD
(December 9, 1949)
Discussion: This case is before us on appeal from an order entered by the Assistant Commissioner on May 17, 1949, directing the respondent's deportation to Canada, if practicable, otherwise to Cuba, at Government expense, on charges (2), (3), and (5) enumerated above. Counsel on appeal urges that respondent's deportation was not in pursuance of law and that, a fortiori, subsequent orders of deportation predicated thereon are nullities since the respondent's original entry was lawful.
The respondent, a native of Canada, female, 40 years of age, divorced, was legally admitted to the United States for permanent residence during September of 1926. She was originally deported to Canada on April 26, 1929, having departed voluntarily while there was outstanding a valid warrant of deportation charging that she had been found to be an inmate of a house of prostitution. She reentered the United States on or about May 8, 1929, and was next deported on August 29, 1931, on the charges of entering after deportation, by false and misleading statements, and that she returned to the United States after having been arrested and deported as a prostitute or a person connected with prostitution. She was again found subject to deportation on April 5, 1932, on the warrant charges stated above. The case was ordered filed on April 14, 1933, as Canadian authorities would not consent to her readmission as a deportee because there was an indication of loss of Canadian nationality by her marriage to an alleged Cuban.
This Board on June 7, 1946, affirmed the Commissioner's order of May 27, 1946, withdrawing the outstanding order and warrant of deportation dated April 5, 1932, and granting the alien's motion to reopen the hearing to permit the introduction of additional and material evidence.
Pursuant to the foregoing, hearings were had at Chicago, Ill., June through November 1947. During these hearings there were lodged two additional charges laid under the 1917 act to wit: That the respondent had been found managing a house of prostitution and was an inmate of a house of prostitution. The Assistant Commissioner has found the respondent subject to deportation solely on the charges numbered (2), (3), and (5) in the caption above. After careful consideration of the evidence of record, we are disposed to affirm the findings of the Assistant Commissioner.
Counsel in his argument before this Board takes the position that the original deportation proceeding lacks the requirements of a fair hearing in that the only substantial evidence bearing upon the respondent's deportability was secured under conditions other than voluntary and, therefore, should not be accepted as wholly reliable. We have carefully reviewed the original deportation hearing accorded the respondent on March 12 and 22, 1929. We note that she was represented by counsel who made no objection to the introduction of the statement taken from her February 27, 1929. There was evidence to support the finding that the respondent was an inmate of a house of prostitution at the time of her apprehension. This being true, we will not now reevaluate the evidence in the first hearing.
Respondent's original deportation was had "in the pursuance of the law" and she was so deported. "The law of a case is determined or fixed as it was at the time of the deportation. Subsequent laws or interpretation of laws cannot be pleaded to vitiate a former order" ( Matter of R----, 3844720 (Apr. 29, 1949)). As was said in U.S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C.C.A. 2, 1932), "* * * it is now too late to attack that deportation as one not in pursuance of law."
The Assistant Commissioner under section 20 of the 1917 act concludes that the respondent is deportable to Cuba as well as Canada. With this we do not agree. There is no substantial evidence of record that the respondent acquired Cuban nationality at the time of her marriage on October 9, 1931, or that her husband was, in fact, a citizen of Cuba at that time. The respondent was born in Canada. She has never resided in Cuba. Counsel informs this Board that the respondent is now divorced from her husband.
Under the circumstances, the respondent's appeal will be dismissed and the Commissioner's order amended to provide for deportation solely to Canada on the stated charges.
Order: It is directed that the appeal be and the same is hereby dismissed; the order entered by the Commissioner May 17, 1949, is hereby amended to provide for the alien's deportation solely to Canada at Government expense.
Discussion: This case is before us on motion of counsel dated May 24, 1950, requesting that our order of December 9, 1949, be set aside and the hearing reopened for the purpose of affording the respondent an opportunity to apply for suspension of deportation or, in the alternative, that the case be remanded for a hearing de novo in view of the decision of the United States Supreme Court in Sung v. McGrath.
The record discloses that the warrant for the respondent's arrest was issued and served on her on December 24, 1931. Thereafter on April 5, 1932, an order was entered directing that she be deported to Canada. On April 14, 1933, the case was ordered filed in view of the fact that the Canadian authorities would not consent to her readmission as a deportee because there was an indication that she lost her Canadian nationality by virture of her marriage to an alleged Cuban. This Board on June 7, 1946, affirmed an order entered by the Commissioner on May 27, 1946, which directed that the outstanding order and warrant of deportation dated April 5, 1932, be withdrawn and granted the respondent's motion for a reopening of the hearing for inclusion therein of additional and material evidence. The record further discloses that the reopened hearings were conducted during 1947 and subsequent thereto on May 17, 1949, the Assistant Commissioner entered an order and warrant directing the respondent's deportation to Canada, if practicable, otherwise to Cuba. The respondent was found deportable under the act of 1917 and the act of March 4, 1929, as amended by the act of June 24, 1929, in that at the time of entry she was a member of one or more of the classes excluded by law, to wit: Section 1 (a) of the act approved March 4, 1929, as amended, being an alien who had been arrested and deported in pursuance of law in whose case prior to March 4, 1929, the Secretary of Labor had not granted permission to reapply for admission; under the act of 1917 in that she returned to and entered the United States after having been excluded and deported or arrested and deported as a prostitute, or as a procurer, or as having been connected with the business of prostitution or importation for prostitution or other immoral purposes; and under the act of 1924 (no immigration visa). On December 9, 1949, this Board dismissed the appeal from the aforementioned order of the Assistant Commissioner. The remaining facts presented in this case have been adequately discussed in numerous prior decisions and it is not deemed necessary to further elaborate on them at this time.
Counsel's contention that the respondent should be permitted to obtain the discretionary relief provided in section 19 (c) (2) of the act of 1917, as amended (suspension of deportation) in view of the fact that the record indicates that she has been a person of good moral character for the preceding 5 years (since 1939) and because of her continuous residence in the United States since 1932 is without merit. The respondent is one of the classes of persons enumerated in section 19 (d) of the act of 1917, as amended, to whom the discretionary relief provided in section 19 (c) of that act shall not be applicable.
In view of a recent decision of the United States District Court, Southern District of New York, on April 4, 1950, in the case of Harisiades, we must deny counsel's alternate request that the case be remanded for a hearing de novo on the basis of the Supreme Court decision in Sung v. McGrath. In the Harisiades case ( supra) the court ruled that deportation proceedings were initiated on the date the warrant of arrest was issued (April 12, 1930) or on the date on which it was served (May 2, 1946). Both of these dates were before the Administrative Procedure Act became law by Presidential approval on June 11, 1946. In the above-cited case, hearings were conducted on October 15, 1946, January 30, and January 31, 1947, and thereafter on August 5, 1947, the Assistant Commissioner entered an order directing that the hearing be reopened for the reception of additional evidence * * * and additional charges. It was the determination of the court that there was no merit to counsel's contention that the deportation proceeding was not instituted until October 15, 1946; further, that there was only one deportation proceeding brought against the alien Harisiades regardless of the fact that the hearing was reopened in February 1948, a date subsequent to June 11, 1946, the effective date of the Administrative Procedure Act.
The facts in the instant case show that the issuance and service of the warrant of arrest occurred many years prior to June 11, 1946, the effective date of the Administrative Procedure Act and that the reopened hearing was conducted subsequent to the effective date of the above act. For the reasons stated above, the motion will be denied.
Order: It is ordered that the motion be denied.