A-4409335
Decided by Board June 15, 1956
Philippine Independence Act — Effective date — Conviction, California — Proceedings not to be deferred pending completion of probation and anticipated extinction of sentence.
(1) The effective date of the Philippine Independence Act is May 1, 1934, Philippine Islands time. Hence, a native of the Philippine Islands who sailed from Manila on April 7, 1934, and arrived at San Francisco in the early morning of May 1, 1934, cannot claim to have arrived prior to the effective date of the act and was subject to inspection as an alien, since the act had already been in effect one full day in relation to San Francisco time. ( See note at end of decision.)
(2) An alien who pleaded guilty on July 22, 1953, to a complaint charging lewd and lascivious acts on two of his daughters and another child, and who was committed to a state hospital as a sexual psychopath until January 31, 1955, on which date he was placed on probation for 5 years, has been convicted of a crime (violation of section 288 of the California Penal Code) within the meaning of section 241 (a) (4) of the Immigration and Nationality Act.
(3) Action in a deportation case will not be deferred to permit completion by alien of probation and anticipated extinction of the sentence for which he may apply at that time.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at entry-no immigration visa.
Lodged: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of two crimes after entry-rape; lewd and lascivious conduct.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.
The respondent is a 41-year-old male, native and citizen of the Philippine Islands, who arrived at San Francisco, California, on May 1, 1934. At that time he was coming to the United States to remain permanently and was not in possession of an immigration visa. The special inquiry officer made findings that the respondent was convicted of rape on March 9, 1945, and that he was convicted on January 31, 1955, on his plea of guilty, of violation of section 288 of the California Penal Code (lewd and lascivious conduct).
Counsel contends that the Philippine Independence Act of March 24, 1934 ( 48 Stat. 456; 48 U.S.C. 1231 et seq., 1940 ed.), had not become effective on May 1, 1934, which was the date of the respondent's arrival at San Francisco. He cites Del Guercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9, 1947), and Cabebe v. Acheson, 183 F. (2d) 795 (C.A. 9, 1950), as holding that the act became effective later than the date mentioned. In the first case, the court held that Gabot was a national and not an alien when he last arrived in the United States on March 20, 1934. Since his immigration status on that date was the determining factor, the exact date when he became an alien for immigration purposes was immaterial. Under these circumstances the court's statement, without discussion, that the Philippine Independence Act became effective on May 14, 1935, can hardly be considered authoritative. In the Cabebe case, which counsel also cited, the same court made the specific statement at page 799 that the Philippine Independence Act was not effective until accepted by concurrent resolution of the Philippine legislature or by a convention called for that purpose and that the acceptance "occurred in fact on May 1, 1934."
It seems clear that Congress has regarded the effective date of the Philippine Independence Act as being May 1, 1934, in view of the provisions of section 326 of the Immigration and Nationality Act ( 8 U.S.C. 1437) relating to petitions for naturalization of Filipinos who entered the United States prior to May 1, 1934. Entry prior to May 1, 1934, was also a requirement of section 321A of the Nationality Act of 1940, as amended by section 2 of the Act of July 2, 1946 ( 60 Stat. 417; 8 U.S.C. 721A, 1946 ed.). After a full discussion of the question in Matter of E----, A-3320341, 6 IN Dec. 429 (1954), we concluded that the effective date of the Philippine Independence Act was May 1, 1934. We adhere to that conclusion.
Counsel also stated that he was attaching a letter of the Secretary of the Senate of the Republic of the Philippines dated January 18, 1956, indicating that the journal of the 1934 legislature is not available but that the legislature did not actually meet until 11 a.m. We do not find this letter attached to counsel's brief. It was contended that the concurrent resolution must have been adopted later than 11 a.m. on May 1, 1934, and that the vessel on which the respondent was a passenger had prior thereto arrived at anchorage in San Francisco Bay at 6 a.m. on May 1, 1934, and had come within the territorial waters of the United States at 2 a.m. on that date. Exhibit 9 indicates that the vessel arrived at 6 a.m. at quarantine anchorage and docked at 8 a.m.
The Philippine Islands are west of the International Date Line. Hence, when the Philippine legislature passed the resolution on May 1, 1934, the date in San Francisco was only April 30, 1934, and when the respondent arrived in San Francisco on May 1, it was already May 2, 1934, in the Philippine Islands. Accordingly, it is clear that the Philippine legislature had acted prior to the respondent's arrival. This is borne out by exhibit 12 in which there was quoted a telegram of the San Francisco office of the Service dated May 1, 1934, to the effect that the morning newspapers of May 1st already carried the report that the Philippine legislature had accepted the independence measure. Hence, we reject this contention of counsel.
Counsel has cited certain cases dealing with section 201 (g) of the Nationality Act of 1940 ( 8 U.S.C. 601 (g), 1946 ed.) in which it was held that expatriation did not occur because the children arrived in Alaska or Hawaii prior to their 16th birthdays. In other words, they had become citizens of the United States at birth and the question was whether they had lost their citizenship. These cases are not analogous and we do not consider them to be of assistance to counsel in view of the high standard of proof required of the Government in cases where United States citizenship is at stake.
The respondent sailed from Manila on April 7, 1934, and the vessel reached Honolulu, Hawaii, on April 25, 1934, departing for San Francisco on the same date. The respondent testified that he was permitted to go ashore in Honolulu during the few hours the vessel was in that port and that he did some shopping. Counsel contends that the respondent's arrival in Honolulu on April 25, 1934, constituted an arrival in the United States and that at that time he could not be considered an alien for immigration purposes.
It is true that section 28 (a) of the Immigration Act of 1924 (8 U.S.C. 224, 1946 ed.) defines the term "United States" as including Hawaii. On April 25, 1934, the respondent was a national of the United States and was not considered an alien for immigration purposes. Hence, he was not inspected to determine whether he was admissible under the immigration laws and there was, in fact, no occasion for such inspection. The respondent was not destined to Hawaii but to California. In view of these facts, we hold that he acquired no right to remain in the United States even if we accept his statement that he was permitted to go ashore in Hawaii for a few hours. Barber v. Gonzales, 347 U.S. 637 (1954), presented a different factual situation because there the alien came to continental United States in 1930 and had lived here continuously since that time.
The important consideration is not the respondent's status on April 25, 1934 (when he was not yet considered an alien for immigration purposes) but his status on May 1, 1934, when he reached his destination and applied for admission to the United States. On that date, he was considered an alien for immigration purposes. Section 3 of the Immigration Act of 1924 (8 U.S.C. 203, 1946 ed.) defined the term "immigrant" as meaning "any alien departing from any place outside the United States destined for the United States" with certain exceptions, the exceptions setting forth the so-called nonimmigrant classes. Counsel contends that when the respondent arrived in San Francisco on May 1, 1934, he was not coming to the United States from a foreign port or place but was coming from Hawaii.
Exhibit 3, which is a verification of the respondent's arrival, shows that he sailed from Manila on April 7, 1934; that his last permanent residence was in the Philippine Islands; and that he was destined to Salinas, California. Under these circumstances, we hold that the respondent was not departing from Hawaii but from the Philippine Islands and that he had, therefore, departed from a place outside the United States within the meaning of section 3 of the Immigration Act of 1924. Since he was not within the exceptions to section 3 of that act, he was an immigrant who was required to be in possession of an immigration visa in accordance with section 13 (a) of that act (8 U.S.C. 213 (a), 1946 ed.). Accordingly, he was excludable on May 1, 1934, and is now deportable on the charge stated in the warrant of arrest.
Even if the respondent had remained in Hawaii on April 25, 1934, and had established a residence there, he would have gained no right to enter continental United States. This is so because section 8 (a) (2) of the Act of March 24, 1934 ( 48 U.S.C. 1238, 1940 ed.) specifically provided, in part, as follows: "Citizens of the Philippine Islands who are not citizens of the United States shall not be admitted to the Continental United States from the Territory of Hawaii (whether entering such Territory before or after the effective date of this section) unless they belong to a class declared to be nonimmigrants by section 3 of the Immigration Act of 1924 or to a class declared to be nonquota immigrants under the provisions of section 4 of such Act other than subdivision (c) thereof, or unless they were admitted to such territory under an immigration visa." A similar provision now appears in section 212 (d) (7) of the Immigration and Nationality Act ( 8 U.S.C. 1182 (d) (7)).
Counsel's remaining contention is that the respondent's second conviction "is not a finality." He states that, upon completion of the respondent's probation, he will have the right to have the criminal proceedings stricken from the record in accordance with the provisions of the law of California. Counsel requests this Board to defer action until the termination of the respondent's probation and the anticipated extinction of the sentence. The complaint pertaining to the second conviction consists of three counts charging lewd and lascivious acts committed on two of his own daughters, 6 and 5 years of age, and a third child who was 4 years old. On July 22, 1953, he pleaded guilty to these charges and subsequently was committed to a state hospital as a sexual psychopath. He remained in the hospital until January 31, 1955, on which date he was admitted to probation, imposition of sentence was suspended, and sentencing was continued for a period of 5 years from that date.
The respondent's marriage terminated by divorce in 1954 and his three children live with their mother. He testified that he pays $25 monthly for the support of his children. His probation will not expire until January 31, 1960. We do not believe that there is any adequate reason for deferring our decision until the termination of the respondent's probation and we decline to do so.
We have also given consideration to the question of whether the criminal proceedings relating to the second offense constitute a conviction although counsel did not specifically raise this issue. 8 U.S.C. 1251 (a) (4) provides for the deportation of an alien "* * * who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor * * *." The fact that respondent was not actually confined in a penal institution for this offense is, therefore, immaterial. Since the respondent pleaded guilty to the charge in 1953 and on January 31, 1955, was placed on probation for 5 years, we are satisfied that the respondent was convicted of the crime within the meaning of 8 U.S.C. 1251 (a) (4). For the reasons indicated above, we conclude that the respondent is deportable on the warrant and lodged charges and the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.