56124/495
Decided by the Board February 23, 1944.
Prostitution — Practice thereof — Employment at resort habitually frequented by prostitutes or where prostitutes gather — Evidence.
1. A single immoral act for gain under circumstances showing prostitution is not pursued as a business or vocation by a person, who relies on her employment as a waitress for a living, will not sustain a deportation charge that she has been found practicing prostitution after entry into the United States, in violation of section 19 of the Immigration Act of 1917.
2. An affirmative answer by an alien to the question of whether certain places where she was employed for a time were houses of ill repute where prostitutes gather to ply their trade of illicit relations with men, is a conclusion of both law and fact, and when not supported by any facts, has no probative value.
CHARGES:
Warrant: Act of 1917 — Found practicing prostitution after entry; Act of 1917 — Found employed at resort habitually frequented by prostitutes, or where prostitutes gather.
BEFORE THE BOARD
Discussion: After a hearing the Presiding Inspector found the respondent deportable on the second charge stated above and recommended her deportation. The Central Office of the Immigration and Naturalization Service feels that neither charge has been sustained and recommends that the warrant of arrest be cancelled.
The respondent is a 38-year old native and citizen of Mexico who last entered the United States at Laredo, Tex. on April 4, 1913. The evidence, which both the Presiding Inspector and the Central Office of the Immigration and Naturalization Service feel does not sustain the charge that the respondent has been found practicing prostitution subsequent to entry, consists of her admissions that on three occasions in 1942 she had had intercourse with three different men. These incidents took place over a period of not longer than 2 weeks and occurred while she was employed at about $5 weekly as a waitress in a cafe in Laredo, Tex. She admits that she had relations with the first man only after he had promised to pay her $3. The other two men paid her a total of $5.50, but not as consideration for her favors. She made no demands upon these two men for remuneration and in fact one of them wished to marry and to support her and her four native-born illegitimate children. This money was given to her as a gift.
The respondent was married in 1920 and lived with her husband until 1929. As issue of this marriage she has three native born children. Her husband's present whereabouts is unknown to her. From 1930 until 1940 she lived with one A---- G---- and has four native-born minor children as the issue of this relationship. Since he deserted her in 1940, she has had to support herself and the latter four children. Until the beginning of 1942 she received some aid from the State relief authorities. Apparently she has always worked as a waitress. The record further shows that at various times she has had venereal diseases.
"Practicing prostitution" within the meaning of the act of February 5, 1917, means "to pursue as a business or occupation the sale of one's body for carnal intercourse. * * * Unchastity is not proof of prostitution; and a single instance, even of sale, may or may not be evidence of `practicing' prostitution. If by a street walker, it probably would be; but here the surrounding circumstances repel the pursuit of a business, or of `practicing' which the statute requires." U.S. ex rel. Mittler v. Curran, 8 F. (2d) 355. The respondent has on only one occasion, insofar as this record shows, sold her body for carnal intercourse. The surrounding circumstances in this case do not reveal that she has pursued prostitution as a business or vocation. That she has led what might be considered an immoral life is obvious. Whatever the cause therefor, it does not follow that the stigma of a practicer of prostitution is to be for this reason attached to her. The pursuit of a waitress' occupation, even if in a cafe of low repute and at low wages, is somewhat inconsistent with the practice of prostitution as a business, unless, of course, the facts should show that the former occupation was a mere front. Here, however, the facts indicate that the respondent worked at her vocation as a waitress in good faith and that that was the major, if not the only, source of her income. The first charge will not be sustained.
To sustain the other charge, the evidence must establish that the resort, or resorts, wherein the respondent was employed were habitually frequented by prostitutes or were places where prostitutes gathered, and that she had knowledge thereof. Vee Look v. Burnett, 65 F. (2d) 594; Lindsey v. Dobra, 62 F. (2d) 116. The evidence upon which the Presiding Inspector based his conclusion that the last charge stated above was sustained, was supplied by the respondent's testimony and that of a police matron. The latter's testimony indicated that the neighborhood in which the several cafes where the respondent was employed were located in what was commonly known as the red light district. The duties of the female employees of these resorts, this witness testified, were to dance with men and to get them to buy drinks. These girls were allegedly free to and did make dates with the male patrons of these places.
In evaluating the relevancy and the weight to be given to the testimony of the police matron, it must be noted that she did not connect the activities that allegedly went on at these resorts from the point of view of time with the respondent's employment therein. And what is more important, and perhaps somewhat inconsistent with her other testimony, is her negative answer to the question whether these resorts were brothels, houses of ill fame, or places where prostitutes frequently gathered. This witness further indicated that it was a violation of Texas law for solicitation, either of drinks or of prostitution, to go on at these resorts, and that, if discovered, they would be padlocked by the appropriate authorities.
Apparently none of the resorts wherein the respondent was employed was ever charged with violating the law and they were never padlocked.
It appears that the police authorities were satisfied that a legitimate business was being conducted in those places.
The respondent's own testimony on this issue is equally inconclusive. She admitted working for a total period of 16 days at three cafes in this so-called red light district. She further admitted that there were a large number of women present in these places as patrons, both chaperoned and unchaperoned. The Presiding Inspector then asked the following question to which the respondent replied in the affirmative:-"But is it not also true that all three of the above-named places are houses of ill repute where prostitutes gather to ply their trade of illicit relations with men?" This question calls for a conclusion both of law and fact. Since it is unsupported by any facts, it has no probative value. No other evidence was adduced from the respondent. Because we do not feel that the record justifies a finding that the resorts in which the respondent was employed were places where prostitutes habitually frequented or gathered, we need not comment on whether the short period of the respondent's employment in those places has any bearing on the validity of the charge. As recommended by the Central Office of the Immigration and Naturalization Service, the warrant of arrest will be cancelled.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States at Laredo, Tex., in April 1913;
(3) That the respondent has not been found practicing prostitution subsequent to entry;
(4) That the respondent has not been shown to be employed in a music or dance hall, or other place of amusement habitually frequented by prostitutes or where prostitutes gather.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that she has been found practicing prostitution after her entry;
(2) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that she has been found employed by, in, or in connection with a music or dance hall, or other place of amusement or resort habitually frequented by prostitutes or where prostitutes gather.Order: It is ordered that the warrant of arrest be cancelled and the proceedings dismissed.