A-4678936
Decided by Board December 4, 1952 Approved by Attorney General December 29, 1952 Decided by Board February 6, 1953
Crime involving moral turpitude: Draft evasion in violation of section 11, Selective Training and Service Act of 1940 (50 U.S.C. App. 311) — Place of deportation: Authority to specify country — Hearing officer: Authority to administer oaths — Hearing de novo: Right under Sung v. McGrath, 339 U.S. 83, when no objection made at hearing.
(1) The submission of a false affidavit as to nonliability for service under the Selective Training and Service Act of 1940 for the purpose of evading military service, in violation of section 11 of such act, involves moral turpitude, fraud being involved in the commission of this offense. ( See 1 IN Dec. 619 and 4 IN Dec. 509.)
(2) Draft evasion by departing from the United States with the intention of evading the Selective Training and Service Act of 1940 in violation of another part of section 11 of the act also involves moral turpitude.
(3) Under the regulations effective September 23, 1950, neither the officer conducting the hearing nor the Board of Immigration Appeals has the authority to designate the country to which an alien shall be deported.
(4) The hearing officer is authorized to administer an oath in deportation proceedings.
(5) An objection that an administrative hearing does not meet the requirements of the Administrative Procedure Act must be made in the proceedings before the agency; and the order or other action of the agency may not thereafter be attacked on review on such ground, unless the objection has been so made.
CHARGES:
Warrant: Act of 1917 — Crime within 5 years — Violation of 50 U.S.C. App. 311 (five counts).
Act of 1917 — Sentenced more than once after entry for crimes — Violation of 50 U.S.C. App. 311 (five counts).
BEFORE THE BOARD
(December 4, 1952)
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated February 11, 1952, directing the respondent's deportation.
There is no dispute as to any of the facts in this case, the issues involved being entirely matters of law. Briefly, the pertinent facts are as follows: The respondent is a 44-year-old male, native of Russia and alleged to be last a citizen of Portugal. He was admitted to the United States for permanent residence on April 3, 1938. The respondent testified that he was last absent from the United States in 1939 and reentered this country on April 17, 1939. On April 23, 1947, following the respondent's conviction on five counts of violating 50 U.S.C. App. 311, he was sentenced to a term of imprisonment of 2½ years and fined $10,000 on each count, the sentences of imprisonment to run concurrently. On appeal, the court of appeals reversed the judgment on the first count and affirmed the judgment on the remaining counts. United States v. Rubinstein et al., 166 F. (2) 249 (C.A. 2, 1948), cert. den., 333 U.S. 868. Hence, the first count has no bearing on the question of the respondent's deportability. As stated by the hearing officer and the Assistant Commissioner in their decisions, the second charge stated in the warrant of arrest is not sustained because of the decision in Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).
The pertinent part of the statute, under which the respondent was convicted, is as follows:
* * * any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this act, or rules, regulations, or directions made pursuant thereto, * * * or any person or persons who shall * * * conspire to do so, shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than 5 years or a fine of not more than $10,000, or by both such fine and imprisonment, * * *.
With respect to the specific offenses of which the respondent was convicted, the second count of the indictment charged that on or about February 2, 1943, the respondent and one A---- G---- F---- knowingly made and were parties to the making of false statements as to the respondent's nonliability for service under the Selective Training and Service Act of 1940 by submitting an affidavit that the respondent's functions were of such a character that the successful continuance of the operations of three specified companies depended upon his remaining with those companies and that it would be impossible to replace him without seriously impairing the drilling program and otherwise seriously hampering the activities of these companies, whereas said statements were false and fraudulent.
The third count charged a conspiracy from March 1, 1942, to September 1, 1943, to do the acts set forth in the second count in order to enable the respondent to evade the requirements of the Selective Training and Service Act.
The fourth count alleged that on or about October 12, 1943, the respondent and one J---- C---- H---- knowingly made, and were parties to the making, of false statements as to the nonliability of the respondent for service under the provisions of the act mentioned by submitting to his draft board an affidavit stating that the respondent was executive assistant to the president of Taylorcraft Aviation Corp., had been so employed on August 2, 1943, and was in charge of financial and administrative matters for that corporation, whereas said statements were false and fraudulent.
The fifth count charged a conspiracy from about July 1, 1943, to January 30, 1946, to do the acts set forth in the fourth count in order to enable the respondent to evade the requirements of the Selective Training and Service Act.
A number of points have been raised by the respondent's counsel in their brief and oral argument. Of these points, the most important is, of course, whether the crimes involve moral turpitude since, if they do not, the deportation proceeding must be dismissed and the remaining points would not require discussion. However, before considering this question, we believe it proper to determine the date of the respondent's last entry. This is material only to the extent that if the respondent's last entry occurred on April 3, 1938, then only the crimes stated in the second and third counts of the indictment were committed within 5 years after entry, whereas if the respondent last entered the United States on April 17, 1939, the four offenses of which he was convicted were all committed within 5 years after entry.
The respondent testified that following his entry for permanent residence (April 3, 1938), he made several trips to Europe and that his last absence was during a cruise on the SS. Kungsholm to various Caribbean Islands; that he remained on the boat except for visits to these islands and returned to the United States on April 17, 1939. He was asked what countries and waters he visited on this trip and answered "My recollection was Haiti and Cuba as a last stop." His entry on April 17, 1939, has been verified.
Counsel contend that the respondent did not make an entry into the United States on April 17, 1939, citing Matter of J----, A-6972834, 3 IN Dec. 536 and Matter of O'D----, A-1194276, 3 IN Dec. 632. The facts in these cases bear no similarity to those in the respondent's case and these decisions are not controlling. In Matter of P----, A-4593207, 4 IN Dec. 235, decided January 17, 1951, we gave full consideration to various court decisions relating to the question of what constitutes an entry. We held in that case that, with the exception of cases in which the absence from the United States or the presence in foreign territory may be said to have been involuntary, the rule stated in United States ex rel. Volpe v. Smith, 289 U.S. 422 (1933) is applicable. In that case, the Court stated that the word "entry" in section 19 of the Immigration Act of 1917 includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one. The respondent voluntarily embarked on the Caribbean cruise and we think that it is apparent that he was aware that the vessel would take him to foreign ports. The record indicates that he visited Haiti and Cuba, but even if he had not entered a foreign country, we would hold that his return from the foreign voyage constituted an entry. We conclude, therefore, that the alien's last entry occurred on April 17, 1939.
With respect to the principal issue involved in this case, that is, whether the crimes committed by the respondent involve moral turpitude, it is our considered opinion that the offenses were essentially a fraud perpetrated against the United States by the respondent for the purpose of evading an obligation which he owed to the Government, and that the crimes, therefore, involve moral turpitude.
The foregoing is consistent with our conclusion in Matter of M----, 56133/115, 1 IN Dec. 619, decided December 3, 1943. Similarly in Matter of S----, A-2857305, 4 IN Dec. 509, decided March 7, 1952, we approved the Commissioner's conclusion that the offense of making a false statement in a Selective Service Questionnaire involved moral turpitude. The facts in the respondent's case are analogous to those in the two cases last cited except that in both cases the aliens themselves had made false statements whereas the respondent submitted affidavits containing false statements. We do not believe that this factor requires a different conclusion in the respondent's case. While we might rely merely on our previous decisions as controlling in this case, we believe that a further consideration of the question is warranted.
Counsel contend that when the respondent committed the offenses, he was a neutral alien; that the respondent could have claimed exemption from military service as such, and later did so; that at that time he was under deportation proceedings; and that it is inequitable to say that he should be compelled to serve the Government which was seeking to deport him. These same arguments were advanced before the court of appeals and were rejected ( United States v. Rubinstein et al., supra). We also find that these matters are immaterial to the question of whether the crime involves moral turpitude, and in any event, in determining this question, we cannot go beyond the record of conviction and the indictment to weigh extraneous matters, United States ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933). In addition, it is clear that in determining whether the crimes committed by the respondent involve moral turpitude, we cannot apply one rule to his case because he was under deportation proceedings or because he was a neutral alien, and another rule to a case where those factors were not present. Either the crimes involve moral turpitude or they do not and the question of who committed the crime is entirely immaterial.
On a par with the matters last mentioned, are certain other contentions of counsel which, although they have some relevancy to the issue involved in the respondent's case, would nevertheless serve to lead us far afield in determining the basic question involved of whether the specific crimes committed by the respondent involve moral turpitude. Along this line are Matter of G----, 56056/326, 1 IN Dec. 73, and the provisions of section 241(a)(17) of the Immigration and Nationality Act of 1952 ( 66 Stat. 207). These matters require only brief discussion. Matter of G---- involved the use of a friend's passport in obtaining a Canadian immigration visa and in entering Canada. No false swearing was involved and it was held that the offenses did not involve moral turpitude.
With respect to section 241(a)(17) of the Immigration and Nationality Act, that section provides for the deportation of aliens who have been or may hereafter be convicted of violating certain statutory provisions, including the Selective Training and Service Act of 1940, upon a finding by the Attorney General that such person is an undesirable resident of the United States. We do not agree with counsel that Congress has thus indicated that it does not consider violations of the Selective Training and Service Act as coming under section 241(a)(4) relating to convictions of crimes involving moral turpitude. We previously said in Matter of M---- ( supra) that it may be that some violations of the Selective Training and Service Act, particularly those of a negative nature, do not involve moral turpitude. The only conclusion that can be drawn from the two sections of the Immigration and Nationality Act is that if the particular violation of the Selective Training and Service Act involves moral turpitude and the other conditions mentioned in section 241(a)(4) exist, the alien may be deported under that provision, and that if the particular violation does not involve moral turpitude, the alien may be deported under section 241(a)(17) if the Attorney General finds the individual to be an undesirable resident.
Counsel for the respondent have cited Matter of S----, A-5702971, 2 IN Dec. 353 and Matter of C----, 56048/346, 1 IN Dec. 14, decided by Attorney General January 16, 1941. These cases are not applicable since they related to false statements under a different statute (Alien Registration Act of 1940) and there is no indication that fraud was involved.
Counsel have also cited our decision in Matter of S---- B----, A-5496423, 4 IN Dec. 682, decided July 21, 1952 in which we held that desertion from the armed forces of the United States in time of war is not an offense involving moral turpitude. While this crime may be punished by death, the fact that a severe penalty may be imposed for this crime and a relatively minor penalty may be imposed for some other crime is no criterion in determining whether moral turpitude is involved. In the case mentioned, the alien's offense was his absence without leave with the intention not to return. The military offense of desertion has frequently been applied to cases which involved little more than absence without official leave. Many such cases involved no premeditated intention of deserting and arose only by impulsive acts. The crime of desertion involves no element of fraud. In view of the extremely broad scope of the 58th Article of War, (10 U.S.C. 1530) under which the alien in the cited case was convicted, we concluded that it could not be said in every instance that the elements of the offense were such that the commission thereof would be commonly regarded as a manifestation of personal depravity or baseness. In any event, we do not believe our decision in that case is of any assistance to the respondent since we are concerned here with an entirely different section of law.
The Service representatives in their brief cited In re Pontarelli, 66 N.E.2d 83, 393 Ill. 310 (Sup.Ct. Ill., 1936) and In re Hofstede, 173 Pac. 1087, 31 Idaho 448 (Sup.Ct.Idaho 1918). In both cases, attorneys were disbarred on the ground that the offense, of which each had been convicted, involved moral turpitude. Pontarelli had been convicted of failure to report for induction in violation of 50 U.S.C. App. 311. The Hofstede case involved a conviction for counseling men not to register for military service in violation of the draft legislation of World War I (act of May 18, 1917, 40 Stat. 76). The respondent's counsel argue that these cases should not be followed because an attorney owes greater respect for the law and that, while for him, the offense may involve moral turpitude, the situation for an alien must be otherwise. We believe this argument is palpably untenable because either a crime involves moral turpitude or it does not, and if it does, then no matter who commits that particular crime — whether it be an attorney, a judge, a citizen or an alien — neither adds to, nor detracts in any manner from the obliquity of the crime. We agree with the respondent's counsel, however, that these decisions are not controlling since the crimes which resulted in the disbarment of these two attorneys are not identical with the crimes of which the respondent was convicted. Nevertheless, we believe that these judicial pronouncements cannot be ignored in determining the question before us. As a matter of fact, it might be said that if the mere failure to report for induction is a crime involving moral turpitude, then the respondent's attempt to secure deferment by means of fraudulent statements should, a fortiori, be considered such a crime.
Counsel argue that the essence of the crimes for which the respondent was convicted was draft evasion and that it was held in Matter of G----, A-6459196 (unreported) (B.I.A., March 11, 1947), that draft evasion does not involve moral turpitude. We are inclined to agree that what is commonly referred to by the generic term of "draft evasion" may well be applied to the offenses committed by the respondent, and this is borne out by the fact that 50 U.S.C. App. 311, immediately following the specific clause relating to false statements concerning nonliability for service, contains the statement "or who otherwise evades registration or service in the land or naval forces or any of the requirements of this act."
In the G---- case, the central office held that the crime committed by the alien did not involve moral turpitude and ordered his deportation on other grounds. The discussion as to whether the crime involved moral turpitude was limited to a statement that the crime was not in the nature of an offense which, to the extralegal moral sense, evidences an act of baseness, vileness or depravity, and to the conclusion that the essence of the crime does not involve moral turpitude. There was no attempt to distinguish the case from our previous decision in Matter of M----, 1 IN Dec. 619, ( supra). We affirmed the Commissioner's decision on May 18, 1947, without specific comment. While we were in agreement with that decision, that is with the order of deportation, it does not follow that we approved the Commissioner's opinion in toto.
G---- received a notice directing him to report for induction on September 22, 1942, and a few days prior thereto he departed to Mexico where he remained until November 1945. He was convicted of a violation of 50 U.S.C. App. 311 in that he unlawfully, willfully, knowingly and feloniously departed from the United States with the intention of evading the Selective Training and Service Act of 1940. It is obvious that the charge in the indictment was laid under that portion of section 311 which is quoted above and which relates to otherwise evading service, and that he had committed a different crime from that committed by the respondent. Hence, this case is not controlling with respect to the respondent. However, for the reasons hereinafter stated, we believe that draft evasion involves moral turpitude and the contrary holding in the G---- case is hereby overruled.
We turn now to the contention of respondent's counsel that the crimes do not involve fraud. With respect to counsel's statement that in order to constitute fraud, the fraudulent representation must be acted upon by the party deceived to his damage and that there is no claim that the Government was actually deceived, we note from the opinion of the Court in United States v. Rubinstein et al. ( supra) that as the result of the hearing on February 2, 1943 before the respondent's draft board, at which time he submitted the false affidavit referred to in count two of the indictment, he was granted an occupational deferment and reclassified II-B by the local board. Hence, it is obvious that reliance was placed on the false affidavit which was submitted at that time.
The case of Cahill v. Curtiss-Wright Corp., 57 F.Supp. 614 (W.D.Ky., 1944) does not sustain the argument of the respondent's counsel that mere deceit even in dealing with the Government does not constitute fraud, since in that case the plaintiff did not even allege that any claim, fraudulent or otherwise, had as yet been presented to the Government. Likewise, United States v. Cohn, 270 U.S. 339 (1926) is of no assistance to the respondent since the Court held that the section of law, under which the defendant was indicted, related solely to a claim against the Government for money or property based upon the Government's own liability to the claimant, whereas the defendant had not made a "claim" against the Government within the meaning of the statute.
Nor can we agree with counsel's argument that the respondent's offense was based upon an opinion as to future facts and not upon existing facts. That the court of appeals did not so regard the offense is shown by the following excerpt from United States v. Rubinstein et al. ( supra):
It is also contended that the statements made in support of his requests for occupational deferment were not false within the statutory meaning because they were, and of necessity had to be, but expressions of opinion as to the need of his employers for his services and as to their inability to replace him without disrupting the war work in which they were engaged. The statements, however, seem to have related to his employment and his employers' need for his services as of the time they were made and thus appear to be statements of present facts so far as those facts were definitely ascertainable. But we are not content to rest our decision here. Even if these statements were but expressions of opinion, pertaining to future matters only, the making of them implied that the makers believed them to be true. If this belief were not honestly entertained, therefore, the statements contained a misrepresentation of present fact. [Emphasis supplied.]
It is well settled that the offenses enumerated in 50 U.S.C. App. 311 require a criminal intent. In United States v. Hoffman, 137 F.(2d) 416 (C.A.A. 2, 1943), involving failure to report for induction, the court held that the phrase "knowingly fail or neglect to perform" requires more than mere failure and that there must be the usual criminal intent. To the same effect is Ex parte Stewart, 47 F.Supp. 415 (S.D.Calif., 1942) in which the Court said:
However, because the statute uses the word "knowingly" (50 U.S.C.A.App. 311), which implies willful knowledge and a specific intent, we have allowed defendants in Selective Service cases to give their reasons for failure to obey, as going to intent. [Emphasis supplied.]
With respect to the clause of 50 U.S.C. App. 311 which is the basis for counts 2 and 4 of the indictment and particularly the words reading "knowingly make, or be a party to the making of, any false statement * * *," we note that in United States v. Achtner, 144 F.(2d) 49 (C.C.A. 2, 1944), the Court held that the word "falsely," particularly in a criminal statute, suggests something more than a mere untruth and includes, "perfidiously" or "treacherously" or "with intent to defraud." The Achtner case involved a prosecution under 8 U.S.C. 746(a)(18) which made it a felony for a person "knowingly to falsely represent himself to be a citizen of the United States without having been naturalized or admitted to citizenship, or without otherwise being a citizen of the United States."
Although the statute, under which the respondent was convicted, does not in specific terms require that the false statement must be made for a fraudulent purpose, this does not mean that the crime is not essentially one of fraud. For example, in United States ex rel. Popoff v. Reimer, 79 F.(2d) 513, 515 (C.C.A. 2, 1935) the question of whether a violation of 8 U.S.C. 414 involved moral turpitude was under consideration. In that case, the alien had been convicted of knowingly aiding a person not entitled thereto to apply for or secure naturalization or to file preliminary papers. The Court held that the crime committed by the alien necessarily involved aiding the applicant to commit a fraud upon the Government and that the crime involved moral turpitude.
As we previously indicated, we agree with the statement of the respondent's counsel that the offense committed by the respondent may properly be characterized as draft evasion. In this connection, the discussion in Keegan v. United States, 325 U.S. 478 (1945) is pertinent. Justice Roberts announced the judgment of the Court and delivered an opinion in which Justices Frankfurter and Murphy concurred. He stated (pp. 486 and 487), in analyzing 50 U.S.C. App. 311, that the clauses in that section relating to (1) knowingly making or being a party to making any false registration and (2) knowingly making or being a party to making any false statements as to his or another's fitness or liability for service were "two sorts of evasion" and then referred to evasion as "a species of fraudulent conduct." In the same case, the following, from the dissenting opinion of Chief Justice Stone, in which Justices Reed, Douglas, and Jackson concurred (pp. 502, 503), is also significant:
Here the statute shows on its face that the word "evade" is used in section 11 as meaning avoidance of or escape from military service either by the failure or the refusal to perform a duty which would otherwise result in the performance of the service, or by means of fraud, craft, or artifice, in meeting the requirements of the Selective Service Act. Section 11 imposes criminal penalties upon any person "charged * * * with the duty of carrying out any of the provisions of this act * * * who shall knowingly fail or neglect to perform such duty." But it also imposes penalties upon any such person "who shall knowingly make, or be a party to the making, of any false, improper, or incorrect registration, classification, * * * and any person who shall knowingly make, or be a party to the making of, any false statement or certificate * * *." It then provides for a like application of the act to any person "who otherwise evades registration or service in the land or naval forces * * *."
The implication from the use of the phrase "otherwise evades" is plain that the acts of omission or refusal to perform the prescribed duty and acts of ostensible performance by false statements and the like are equally recognized by the statute as modes of evasion of military service or of other requirements of the act. It is thus clear that the phrase "otherwise evades" was intended to include both types of evasion whether effected by breaches of duty or by false, fraudulent, and deceptive acts, either of which if successful, would result in avoidance of or escape from military service. [Emphasis supplied.]
From the foregoing, it is clear that the specific offenses which the respondent committed were characterized in Justice Roberts' opinion as involving fraudulent conduct and similarly in the dissenting opinion as evading service by means of fraud, craft, or artifice and as false, fraudulent, and deceptive acts.
In United States v. Grayson, 166 F.(2d) 863, 866 (C.C.A. 2, 1948), the Court in considering another crime, made the following reference to the Rubinstein case:
As we understand it, Grayson's objection is not that the prosecution failed to prove what it set out to prove, but that opinions, promises, or representations as to the future, will not support a charge of fraud. We have repeatedly held the opposite. Indeed, it has been the law ever since 1896, that to promise what one does not mean to perform, or to declare an opinion as to future events which one does not hold, is a fraud. It is true that in Chaplin v. United States, 157 F.(2d) 697, the Court of Appeals for the District of Columbia by a divided court felt bound to hold otherwise in a prosecution for obtaining money under false pretenses. We have recently refused to follow this ruling in a prosecution for evading the Selective Service Act, 50 U.S.C.A.App. § 301 et seq. ( United States v. Rubinstein, 166 F.(2d) 249); * * *.
We believe it obvious, from the statement made by the same Court in the Grayson case, that it regarded the offenses which the respondent committed as being essentially crimes involving fraud.
The respondent's conviction on counts 2 and 4 of the indictment establishes that the statements submitted by him to his draft board were false; that he was a party to the making of the false statements; and that he knew the statements were false as otherwise he could not have been convicted. We have previously shown that the offenses committed by the respondent required the usual criminal intent and this particular offense has been termed by the Supreme Court a species of fraudulent conduct. In Matter of M----, 56133/115, 1 IN Dec. 619 ( supra), we said that the same offense for which the respondent stands convicted was essentially akin to fraud, that is, it was an endeavor to alter rights by deception. The respondent attempted to deceive the Government through false representations for the purpose of obtaining an occupational deferment to which he was not entitled, and on one occasion, his local board granted his request for an occupational deferment as the result of the fraudulent representation. In view of the statements made by the Supreme Court in Keegan v. United States ( supra), we believe that the crimes committed by the respondent are not only akin to fraud but that fraud is inherent in the offense.
In Jordan v. DeGeorge, 341 U.S. 223 (1951), the Supreme Court concluded that a conviction for conspiracy to defraud the United States of taxes on distilled spirits is a crime involving moral turpitude within the meaning of the Immigration Act of 1917. At page 227, the Court said: "Without exception, Federal and State courts have held that a crime in which fraud is an ingredient involves moral turpitude." And at page 229, it was stated: "In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude." The following appears on page 232:
Whatever else the phrase "crime involving moral turpitude" may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. * * * Fraud is the touchstone by which this case should be judged. The phrase "crime involving moral turpitude" has without exception been construed to embrace fraudulent conduct.
Since we have previously pointed out that the Supreme Court in the Keegan case designated the crime committed by the respondent as being "a species of fraudulent conduct" and since in the DeGeorge case that Court stated that the phrase "crime involving moral turpitude" embraces fraudulent conduct, we are firmly convinced that the crimes referred to in counts 2 and 4 of the indictment are crimes involving moral turpitude. Counts 3 and 5 related to conspiracies to do the acts charged in counts 2 and 4. We have previously held that if the substantive offense involves moral turpitude, then it follows as a matter of law that the conspiracy to commit that offense also involves moral turpitude, Matter of S----, 56152/593, 2 IN Dec. 225. We conclude, therefore, that the four crimes of which the respondent was convicted all involve moral turpitude.
Counsel for the respondent also contend that an order of deportation which does not specify the place of deportation is a nullity. In this connection, counsel cited Ex parte Yabucanin, 199 Fed. 365 (D.C.Mont. 1912) and Ex parte Callow, 240 Fed. 212 (D.C.Colo., 1916) in which it was held that warrants of deportation were defective because they did not specify the countries to which the aliens were to be deported. However, counsel concede that these cases relate to warrants of deportation but argue that the same rule should apply to the order of deportation which is entered prior to the issuance of the warrant of deportation. While there was a former practice of stating, in the order of deportation, the country to which an alien was to be deported and whether at Government expense or steamship expense, there was no statutory requirement that such information be stated in the order of deportation.
The order of deportation entered in the respondent's case on February 11, 1952, directed that he "be deported from the United States, pursuant to law" but it does not specify the country to which he is to be deported. At that time, 8 C.F.R. 151.5(a) specifically provided that the hearing officer should have no authority to designate at whose expense or to which country the alien shall be deported, and 8 C.F.R. 152.3(a), which is still in effect, provides that the officer-in-charge of the appropriate field district, the Assistant Commissioner of the Enforcement Division, or the Commissioner shall have exclusive authority to designate at whose expense and to which country a deportable alien shall be deported. These regulations have been in effect since September 23, 1950. When the order of deportation was entered on February 11, 1952, by the Assistant Commissioner of the Adjudications Division, he was precluded from designating the country to which the respondent was to be deported because the exclusive authority to do so was vested in other officers. Likewise, this Board is not authorized by the regulations to designate the country to which the respondent shall be deported.
The order entered in the respondent's case is entirely similar to all other orders of deportation entered since the regulations mentioned became effective, and in the cases which have come to us on appeal since that time, we have not considered that the question concerning the place of deportation was before us. In Matter of D----, A-5668628, 4 IN Dec. 675, where the respondent claimed that he would be subject to physical persecution if deported to Czechoslovakia, we stated that the objection was premature since the determination concerning the place of deportation would be made by the authorized officer of the Service. Similarly, in Matter of O----, A-7985967, 4 IN Dec. 472, we indicated that the question of the place of deportation was a matter for subsequent determination by an administrative officer of the Service.
Prior to September 23, 1950, an alien did not have the right to specify the country to which he desired to be deported. On the date mentioned, the Internal Security Act of 1950 ( 64 Stat. 987) was enacted. Section 23 amended section 20 of the Immigration Act of 1917 so that it provides that the deportation of aliens shall be directed to the country specified by the alien if such country is willing to accept him, and further provides that no alien shall be deported under the Immigration Act of 1917 to any country in which the Attorney General shall find that such alien would be subjected to physical persecution. In view of the provisions mentioned, it is obvious that the place of deportation could not thereafter be summarily determined, and that it was entirely logical to amend the regulations in order that, after the question of whether the alien was or was not deportable had been finally determined, he might still avail himself of the opportunity of specifying the place of deportation or raising the issue of physical persecution.
We have carefully considered the statements made concerning this point in counsel's brief and oral argument and deem it unnecessary to discuss them further, since, in any event, 8 C.F.R. 152.3(a) precludes us from determining to what country the respondent shall be deported. In addition, we do not believe that the respondent is in any position to complain in this matter because at the hearing on October 1, 1951, he was given the opportunity of specifying the country to which he should be deported, if ordered deported, and declined to do so. Since he must be deported to the country specified by him and he has failed to make any choice, it would be manifestly impossible to make a determination of that matter at this time.
Counsel have referred to certain statements made in Sung v. McGrath, 339 U.S. 33 (1950) and contend that the hearing was to be conducted under oath and that the hearing officer did not have authority to administer an oath. In Matter of C----, A-7416925, 4 IN Dec. 415, decided June 22, 1951, which was subsequent to the Sung decision, we held that immigration officers have authority to administer oaths in deportation proceedings as well as exclusion proceedings. 8 C.F.R. 151.2(a), which relates to the conduct of hearings in deportation cases, specifically provides that the hearing officer shall have authority to administer oaths and to conduct such hearings.
Before taking up counsel's argument concerning this matter, we might say that, while the hearing officer in the respondent's case was authorized to administer an oath to the respondent under the regulation mentioned and while the latter testified under oath, we do not see how the hearing officer's authority to administer an oath can be considered material in this case. If, for example, there were a charge that perjury had been committed before an immigration officer, then his authority to administer the oath, which resulted in the alleged perjury, would be directly at issue. But that is not the situation here. Counsel concede that the respondent is not a citizen of the United States and that he was convicted of the offenses previously mentioned. Certified copies of the indictment, judgment, and commitment were entered the record as exhibits. Whether we consider the statements made by the respondent at the hearing on October 1, 1951, as admissions against interest and not testimony under oaths or whether we rely on the statements made at a previous hearing which became part of the record by stipulation, or whether we disregard all of these, the respondent would still be deportable on the basis of his conceded alienage and the record of his conviction. If he had refused to be sworn or had refused to answer any questions he could not have thus precluded the Government from proceeding with the hearing.
Returning to counsel's argument on this point, they assert that the Solicitor General had stated at page 49 of his brief, submitted in Sung v. McGrath ( supra) that section 16 of the Immigration Act of 1917 provides the only authority for immigrant inspectors to administer oaths and to take testimony in deportation proceedings, and that the Supreme Court in that case held (p. 52) that section 16 merely directed immigrant inspectors to administer oaths in connection with inspections and investigations. From this, they argue that officers of the Service have no statutory authority to administer oaths in deportation proceedings; that, without such oath, the hearing is improper and invalid; and that the deportation order predicated thereon must fall.
If we pursue this argument to its logical conclusion, we must assume that counsel are contending that, in the thousands of deportation cases which have arisen since the passage of the Act of 1917, the immigrant inspectors had no authority to administer oaths or to conduct the hearings, and that the countless cases in which the courts, including the Supreme Court, had sustained the validity of deportation orders since 1917 were incorrectly decided. It would indeed require persuasive and cogent reasons to overturn the practice which has been followed in deportation cases during the 35 years since the passage of the act of 1917 and which has received judicial sanction on innumerable occasions.
In connection with counsel's argument concerning this matter, it is true that the Court in Sung v. McGrath ( supra) said: "Certainly nothing here (in section 16 of the Immigration Act of 1917) specifically provides that immigrant inspectors shall conduct deportation hearings or be designated to do so." However, the Court made no reference to whether section 16 provides the only authority for immigrant inspectors to administer oaths in deportation cases and that question was not at issue in the case. The Court, in considering section 16, had before it only the narrow question of whether deportation hearings held before immigrant inspectors were exempted from the Administrative Procedure Act by a provision in section 7(a) thereof which reads "* * * but nothing in this act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute * * *." [Emphasis supplied.] The Court merely decided that this provision did not exempt the Service from the Administrative Procedure Act because section 16 did not specifically provide that immigrant inspectors shall conduct deportation hearings or be designated to do so. In other words, the point involved was not whether immigration officers had authority to conduct deportation hearings but only whether such officers in deportation cases were "specially provided for by or designated pursuant to statute." That the Court did not consider the lack of a specific statutory provision as a bar to the conduct of deportation hearings by officers of the Service is shown on page 49 of the opinion when the Government's contention that the deportation statute does not require a hearing was rejected, and the Court stated, in effect, that the right to a hearing in deportation cases arose under the Constitution and was not dependent upon any statute. There was no suggestion by the Court that there was any invalidity relative to immigrant inspectors conducting hearings in deportation cases, except insofar as the Court held that such hearings were subject to the requirements of the Administrative Procedure Act. As a matter of fact, the Court indicated that it would be a simple matter for Congress to exclude the Service from the applicability of the Administrative Procedure Act, thus indicating that such action would cure the defect which existed in the Sung case.
We think that, since the passage of the act of September 27, 1950, which provided that proceedings "relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act," the conduct of deportation proceedings, insofar as statutory requirements are concerned, is in exactly the same position as it was prior to the enactment of the Administrative Procedure Act. We have pointed out that the Sung decision does not hold that officers of the Service are without authority to administer oaths and does not hold that they are without authority to conduct hearings in deportation cases. Counsel have cited no other case as a basis for their position. In Harisiades v. Shaughnessy, 342 U.S. 580 (1952) which was decided by the Supreme Court subsequent to the Sung decision, the Court upheld the orders of deportation although the hearings in the cases of two of the aliens there involved had been before immigrant inspectors, who, according to the contention of counsel in this respondent's case, would have had no authority to conduct the hearings. Clearly, counsel's argument concerning this matter is unsound and must be rejected.
Counsel also contend that the second hearing was improper. They state that under Interim Decisions Nos. 40, 79, 192 ( 3 IN Dec. 605, 83, 818) and 218 ( 4 IN Dec. 173) the doctrine of the law of the case requires that the decision be based upon the recommendation of the presiding inspector at the prior hearing which was that the proceedings be terminated. The decisions referred to do not sustain counsel's argument since they hold that the law of a case is determined or fixed as it was at the time of the execution of the warrant of deportation. As a matter of fact, when the presiding inspector rendered his opinion on January 21, 1949, he was not authorized under the then existing regulations (8 C.F.R. 150.7) to enter an order of deportation or to enter an order terminating the proceedings, but was empowered only to prepare a memorandum setting forth a summary of the evidence, proposed findings of fact and conclusions of law and a proposed order. Final determination of deportation cases was then vested in the Commissioner subject to the right of appeal to this Board. No order was entered by the central office in the respondent's case prior to the Sung decision and thereafter on July 25, 1951, the case was remanded to the field office for further proceedings.
Counsel also assert that the first hearing was valid in view of the failure of the alien to take exception and that, therefore, the second hearing was invalid. The first hearing was held before a presiding inspector on November 5, 1948. This was subsequent to the enactment of the Administrative Procedure Act. The Supreme Court in Sung v. McGrath ( supra) said. "We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity." The act of September 27, 1950, provided that exclusion or expulsion proceedings should thereafter be without regard to the provisions of certain sections of the Administrative Procedure Act. It is clear, therefore, that from the passage of the Administrative Procedure Act on June 11, 1946, and until September 27, 1950, a hearing which did not comply with the requirements of that Act had no validity, regardless of whether the alien did or did not take exception to such a hearing. Hence, this contention of counsel is without merit.
Counsel also assert that the respondent was denied a fair hearing and procedural due process on the grounds that the act of September 27, 1950, exempting the Service from certain provisions of the Administrative Procedure Act, is unconstitutional and that, in any event, procedural due process requires that deportation proceedings must conform to the standards of the Administrative Procedure Act. With respect to these matters, counsel refer to certain language in Sung v. McGrath ( supra) and argue that a lower standard than that provided by the Administrative Procedure Act denies procedural due process to the alien. In that case, the Court said:
Nor can we accord any weight to the argument that to apply the act of such hearings will cause inconvenience and added expense to the Immigration Service. * * * The agencies, unlike the aliens, have ready and persuasive access to the legislative ear and if error is made by including them, relief from Congress is a simple matter.
We think it would be an impertinence to suppose that the Supreme Court would have made this suggestion, which was subsequently followed by Congress, if the Court had believed that legislation exempting the Service from the Administration Procedure Act would be unconstitutional or that it would deprive an alien in deportation proceedings from receiving procedural due process. In Harisiades v. Shaughnessy, ( supra) which was decided on March 10, 1952, long after the Sung decision, the Court stated in a footnote that Harisiades contended that, the Administrative Procedure Act aside, he was denied procedural due process in that in his 1946-47 hearings the same individual acted both as presiding officer and examining officer. The Court rejected his contention because the officer performed both functions with Harisiades' consent. However, if the position of counsel in this respondent's case were correct, the Court would have had to say that Harisiades did not receive procedural due process because his hearing did not meet the standards of the Administrative Procedure Act. But the Court did not so hold. In a case in which it had been contended that the deportation hearing was unfair and that there had been a denial of due process, these contentions were recently rejected by the Court of Appeals for the Second Circuit which affirmed the judgment dismissing the writ of habeas corpus ( United States ex rel. Catalano v. Shaughnessy, 197 F.(2d) 65 (C.A. 2, May 27, 1952)). Upon examination of the record, we are satisfied that the respondent was afforded a fair hearing and due process.
Counsel also urged that the hearing officer and the Service gave consideration to a memorandum of the District Director at Philadelphia dated February 1, 1949, recommending deportation. In this connection we note that counsel for the respondent had requested that a copy of the decision of the presiding inspector dated January 21, 1949, which related to the previous hearing, be attached to the record, and that the examining officer then requested the hearing officer to make part of the record the district director's memorandum of February 1, 1949. Counsel for the respondent stated that he could not object to the latter memorandum since the presiding inspector's decision had already been attached to the record. We find nothing in the record indicating that the hearing officer of the Service gave any consideration to either the presiding inspector's recommendation or the district director's recommendation. Certainly, we have not done so.
Counsel also assert that the Service maintains a confidential file relating to the respondent and that such file has been utilized in the consideration of the case. While in Matter of A----, A-6178382, 3 IN Dec. 714, it was held permissible to consider evidence of a confidential nature in deciding whether discretionary relief should be granted, such material cannot be considered in determining whether or not an alien is deportable. In the instant case, the respondent has not applied for discretionary relief and is not eligible therefor in view of the ground on which he is deportable and the provisions of section 19(c) and (d) of the Immigration Act of 1917, as amended. We have not considered any material of a confidential nature relating to the respondent and have examined only the record itself which was available to counsel. We find this contention to be without merit.
After careful consideration of the record and the brief and oral argument of counsel, we conclude that the respondent is deportable on the ground stated in the order of the Assistant Commissioner dated February 11, 1952. Accordingly, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.
In accordance with 8 C.F.R. 90.7, the case is certified to the Attorney General for review of the Board's decision.
(December 29, 1952)
This proceeding was instituted by the issuance of a warrant of arrest on April 29, 1947. On February 11, 1952, the Assistant Commissioner of Immigration and Naturalization directed the respondent's deportation. On December 4, 1952, the Board of Immigration Appeals affirmed the decision of the Assistant Commissioner and on that same date certified its decision to the Attorney General for review in accordance with 8 C.F.R. 90.7. At his request respondent's counsel was given a full opportunity to present his arguments and authorities to me in an informal conference on December 10, 1952. In addition a full hearing was held before me on December 17, 1952, in which counsel for the respondent and for the Immigration and Naturalization Service were heard in extensive oral argument.
On the basis of the aforesaid hearings and of the record in these proceedings, the decision and order of the Board of Immigration Appeals dated December 4, 1952 are hereby affirmed.
I desire, however, to note one point on which I disagree with the Board. It should be emphasized that in view of the circumstances of this case my disagreement is not material to the conclusion reached by the Board and in which I concur.
Two hearings were held by the Immigration Service in connection with this proceeding. The first hearing was held in 1948. After its termination the presiding inspector prepared proposed findings of fact and conclusions of law favorable to the alien and a proposed order recommending that the warrant of arrest be canceled. However, the first hearing took place after the enactment of the Administrative Procedure Act of June 11, 1946 (5 U.S.C. 1001 et seq.), and prior to the Supreme Court decision in Sung v. McGrath, 339 U.S. 33 (1950). Contrary to the statement in the brief filed on behalf of the alien before the Board, the record shows that at the first hearing his counsel objected to that hearing on the ground that it did not conform with the requirements of the Administrative Procedure Act. The objection was overruled. But after the decision in the Sung case established the validity of the objection, the Immigration and Naturalization Service set the matter down for a new hearing, as it did thousands of other cases similarly affected by that decision.
The alien now contends that holding a second hearing was improper and seems to argue that the doctrine of the law of the case requires that the decision in this matter should be based upon the recommendation of the presiding inspector at the first hearing. The opinion of the Board of Immigration Appeals appears to me to dispose of this contention satisfactorily. However, as an additional ground for its conclusion, the Board expresses the view "that from the passage of the Administrative Procedure Act on June 11, 1946 and until September 27, 1950, a hearing which did not comply with the requirements of that act had no validity, regardless of whether the alien did or did not take exception to such a hearing." As I understand the Supreme Court's decision in United States v. Tucker Truck Lines, Inc., 344 U.S. 33 (1952), an objection that an administrative proceeding does not meet the requirements of the Administrative Procedure Act must be made before the agency and the order or other action of the agency may not thereafter be attacked on review on that ground unless the objection is so made. Accordingly, it is my view that the above quoted statement of the Board of Immigration Appeals is not entirely correct.
In this case, however, the alien did make the objection at the first hearing. In view of that circumstance and the subsequent decision of the Supreme Court in the Sung case, I believe that the Immigration and Naturalization Service acted properly in setting the matter down for a second hearing. In reaching this conclusion I do not intend to imply that administrative agencies may not, as a matter of discretion, rehear proceedings which failed to meet the requirements of the Administrative Procedure Act even though the parties affected fail to object to the proceedings in that regard.
(February 6, 1953)
Discussion: This case is before us on the basis of counsel's motion, originally submitted on December 17, 1952, which requests that the hearing be reopened for consideration of the respondent's eligibility for suspension of deportation under section 244(a)(5) of the Immigration and Nationality Act of 1952.
Section 244(a)(5) provides, in part, that the Attorney General may, in his discretion, suspend deportation in the case of an alien who is deportable under certain paragraphs of section 241(a) for an act committed subsequent to entry if such alien "has been physically present in the United States for a continuous period of not less than 10 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; * * *." The offenses, of which the respondent was convicted, were committed as follows: Count2 — February 2, 1943; Count 3 — Conspiracy from March 1, 1942 to September 1, 1943; Count 4 — October 12, 1943; and Count5 — Conspiracy from July 1, 1943, to the date of the indictment (January 30, 1946).
In view of the dates when the offenses were committed, the respondent is not eligible for suspension of deportation under section 244(a)(5) because he cannot establish, as required by that section, that he has been physically present in the United States and that he has been a person of good moral character for a continuous period of not less than 10 years immediately following the commission of the acts which constitute the ground for his deportation.
Section 101(f) of the Immigration and Nationality Act provides that, for the purposes of the act, no person shall be regarded as, or found to be, a person of good moral character if he is within certain categories. The latter portion of paragraph 3 thereof prohibits a finding of good moral character in the case of a person within the purview of paragraph 9 of section 212(a) if the offense described therein, for which such person was convicted, was committed during the period for which good moral character is required. Paragraph 9 of section 212(a) relates, in part, to persons convicted of crimes involving moral turpitude. Since the offenses covered by the last three counts of the indictment were committed during the 10-year period, paragraph 3 of section 101(f) precludes a finding of good moral character in the respondent's case. Such a finding is also precluded by paragraph 7 of section 101(f) which relates to a person who during such period (the period for which good moral character must be established) has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more, regardless of whether the offense was committed within or without such period. On April 23, 1947, the respondent was sentenced to a term of imprisonment of 2½ years and he was actually imprisoned in a Federal penitentiary from May 5, 1947, to April 25, 1949.
From the foregoing, it is clear that the respondent does not meet the statutory requirements for suspension of deportation under section 244(a)(5) of the Immigration and Nationality Act of 1952. Hence, it would be entirely futile to reopen the hearing to permit the filing of an application for suspension of deportation which we would be prohibited, by law, from granting. We will, therefore, deny counsel's motion and the request for oral argument.
Order: It is ordered that the motion for reopening and the request for oral argument be and the same are hereby denied.