A-3844720
Decided by Board April 29, 1949
Previous arrest and deportation — Sole ground, "sentenced more than once" — Section 19 of the Immigration Act of 1917 — Effect of interpretation of such ground favorable to alien after such order and warrant of deportation executed — Sustainability of charge, in later warrant proceedings, of "No permission to reapply, after previous arrest and deportation" — Act of 1929, as amended.
1. An executed order and warrant of deportation based solely on the provision of "sentenced more than once" under section 19 of the Immigration Act of February 5, 1917, will not be set aside because of subsequent interpretation of that requirement, favorable to the alien.
2. In later warrant proceedings, the charge of "No permission to reapply, after previous arrest and deportation," under the act of March 2, 1929, as amended, will be sustained. (See 3 IN Dec. 83, 818.)
CHARGES:
Warrant: (1) Act of 1917 — Convicted of crime prior to entry — Breaking and entering in nighttime, and robbery.
(2) Act of 1929 — Arrested and deported — No permission to reapply.
Lodged: (3) Act of 1917 — Convicted of crime prior to entry — Breaking and entering in the daytime and attempted larceny of automobile.
(4) Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Assistant Commissioner that respondent be deported to Scotland, if that country will accept him, otherwise to Canada. The opinion of the Assistant Commissioner found that respondent is deportable for the charges numbered (1), (3), and (4) above. We are in accordance with those findings, and in addition, we find that he is deportable on the charge numbered (2) for reasons to be set forth below.
Respondent, a native and citizen of Canada, was brought to this country in 1913 as an infant. He committed a number of crimes, beginning about 1930. On March 21, 1931, respondent unlawfully broke and entered a building in the nighttime with intent to commit larceny, and he did steal an automobile; this was the first crime to be made the basis of the 1937 order of deportation. On April 13, 1931, he pleaded guilty to that charge and was placed on probation for 2 years. On May 9, 1931, he committed a robbery; he pleaded guilty and was sentenced to a reformatory for a term of 7 years. At this same time the probation above referred to was revoked, and he was sentenced to the same reformatory on June 8, 1931, for a term of 5 years, these terms to run consecutively, not concurrently. The Assistant Commissioner's opinion "takes official notice" that the facts as here presented do not satisfy the requirement of the law (sec. 19 (a) of the Immigration Act of 1917) that an alien has been "sentenced more than once" for a crime involving moral turpitude committed after entry, as that language is interpreted in Tan v. Phelan, 333 U.S. 6, 68 S. Ct. 374 (February 2, 1948). In that case the Supreme Court outlined the several contrary views which have been held in the various circuits concerning the meaning of the statutory words, "sentenced more than once." The Court overruled most of the earlier interpretations and decided that the alien, to be deportable under that section, must have been convicted and sentenced, and then he must again commit a crime and be convicted and sentenced for it.
However, at the time respondent was deported in September 1941, Tan v. Phelan had not been decided. The facts of respondent's first deportation satisfied the position of most of the circuit courts at that time as to what was meant by "sentenced more than once." The Second Circuit, where respondent's case came up, had held in Johnson v. U.S. ex rel. Pepe, 28 F. (2d) 810 (C.C.A. Conn., 1928) and in U.S. ex rel. Mignozzi v. Day, 51 F. (2d) 1019 (C.C.A., N.Y., 1931), that an alien who is given consecutive sentences is sentenced more than once, while an alien who is given concurrent sentences is not, even though the crimes are distinct. The First Circuit held in Clark v. Orabona, 59 F. (2d) 187 (C.C.A., R.I., 1932) (revising Dist. Ct. 53 F. (2d) 101, cert. den. 287 U.S. 629, 53 S. Ct. 82, 77 L. Ed. 546) that an alien convicted under two indictments for assault to murder, as a result of a single brawl in which the alien wounded two men, was deportable as twice sentenced for crimes involving moral turpitude. In Nishimoto v. Nagle, 44 F. (2d) 304 (C.C.A. Cal., 1930) the Ninth Circuit held that separate sentences upon conviction of the alien under different counts in an indictment charging issuance of separate checks with intent to defraud, sentences to run concurrently, were more than one sentence, and the alien was deportable under the statute. Other cases followed similar reasoning.
The facts in the instant case more than satisfied the rules laid down by most of the courts, until the decision in Tan v. Phelan, supra. Respondent had to be deported "in pursuance of the law," and he 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. As was said in U.S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C.C.A. 2d, 1932), "* * * it is now too late to attack that deportation as one not in pursuance of law." For this reason we will sustain deportation of respondent on the charge of having reentered after being deported without having secured permission to reapply for admission.
Respondent's exceptions to the findings of the Presiding Inspector have been overruled by the Assistant Commissioner. Respondent protests the findings that he is not of good moral character. His recent conviction of petit larceny, a crime involving moral turpitude, makes it impossible for us to find that he is a person of good moral character. He protests that he did not enter this country as an immigrant in 1943, the time of his last entry, but that he entered as a seaman. He admitted in his last hearing, however, that when he entered he intended to stay permanently. It is well-established law that when this was the intent of an entrant, he was an immigrant at the time of entry. Respondent's other objections are adequately answered in the opinion below, and we cannot but sustain it.
Respondent requests discretionary relief because of his dependent United States-born citizen wife and two dependent citizen children. It is impossible for us to grant such relief, not only because we cannot find good moral character, but because we are precluded by section 19 (d) of the 1917 act, as amended, which provides that discretionary relief under section 19 (c) shall not be granted in the case of persons who are members of the criminal classes. That respondent is such a person is established by his several convictions of crimes involving moral turpitude. Respondent's appeal must be dismissed.
Order: The appeal is dismissed.