56096/451
Decided by the Board July 21, 1942.
Crime involving moral turpitude — Importation of narcotics — Narcotic conviction as ground of exclusion — Applicability of seventh proviso to section 3, Immigration Act of 1917, to narcotic convict.
1. Importation of narcotics in violation of the Narcotic Drugs Import and Export Act (21 U.S.O. secs. 171-185) is not a crime involving moral turpitude.
2. An alien convicted of importing narcotics in violation of the Narcotic Drugs Import and Export Act (21 U.S.C. secs. 171-185) is excludable under section 3 of the Immigration Act of 1917, although section 3 does not specifically provide for such conviction as a ground of exclusion.
3. The seventh proviso to section 3 of the Immigration Act of 1917 may be exercised to admit an alien excludable because of a narcotic conviction.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1917 — Admission and conviction of crime involving moral turpitude — importing opium; likely to become public charge.
Executive Order 8766 — No passport.
Mr. Richard P. Lott, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied at the port of Nogales, Ariz., on October 3, 1941, for admission to resume his United States residence. A board of special inquiry excluded him on the grounds above stated and from that action he appealed. On October 27, 1941, upon consideration of his appeal, we ordered that the hearing be reopened for the introduction of the indictment and record of the conviction of the crime for which the appellant was convicted. Reopened hearing was held on November 21, 1941. Thereafter under date of April 1, 1942, we ordered the case reopened for further investigation and report.
The appellant is an alien, a native and citizen of Mexico, 55 years of age. He is applying for admission to resume his United States residence following a 1-day visit into Mexico. He is without any consular or immigration documents.
Appellant owns his own home in Douglas, Ariz., and expects to obtain employment with a building contractor with whom he has previously worked.
Appellant was indicted in the United States District Court for the District of Arizona in the April term of 1940 for violation of the Narcotic Drugs Import and Export Act of 1909, as amended (title 21, U.S. Code, sec. 174), in that he knowingly and fraudulently imported and brought into the United States, and assisted in so doing, 11 pounds of crude opium; and in that in violation of said act he knowingly and fraudulently received, concealed, and facilitated in transportation and concealment of 11 pounds of crude opium after the unlawful importation thereof knowing it to have been unlawfully imported. The indictment contained a third count for conspiracy to violate the Narcotic Drugs Import and Export Act (18 U.S. Code, sec. 88). He was convicted for violation of the Narcotic Drugs Import and Export Act as set forth in the first two counts of the indictment and sentenced to 13 months' imprisonment and a fine of $100 on the first count, and received a suspended sentence of 5 years on the second count. His sentence was under date of November 14, 1940.
DISCUSSION: The crime for which appellant was convicted is not one involving moral turpitude. The statute which he violated (title 21, U.S. Code, secs. 171-185) is known as the "Narcotic Drugs Import and Export Act." It prohibits the importation of narcotic drugs with various exceptions, provides for seizure and forfeiture of unlawfully imported drugs, imposes a penalty of fine and imprisonment for fraudulently and knowingly importing or participating in the importation of narcotic drugs, provides for the deportation of aliens convicted of violations of its provisions, defines certain defenses, and provides that generally its administration shall be by the Treasury Department. There are similar provisions controlling the exportation of narcotics. It will be seen that it is a regulatory act and that the violation of it is therefore not a crime involving moral turpitude. It has long been administratively recognized that a violation of this act is not a crime involving moral turpitude (Statement of Hon. W.W. Husband, Second Assistant to Secretary of Labor in hearing before the Senate Committee on Immigration, 71st Cong., 3d sess. on H.R. 3394, p. 3). United States ex rel. Andreacchi v. Curran, 38 F. 2d 498, holds that a violation of the somewhat similar Harrison Act is not a crime involving moral turpitude.
If, however, the crime is not one involving moral turpitude, is a conviction of that crime a ground for exclusion? Section 3 of the act of 1917 does not provide this as a ground for exclusion. The Narcotic Drugs Import and Export Act of 1909, as amended by the Act of May 26, 1922, provides that an alien convicted of it shall upon warrant issued by the Secretary of Labor be taken into custody and deported in accordance with the provisions of sections 19 and 20 of the act of 1917. The Act of February 18, 1931 (title 8, U.S. Code, sec. 156 (a)), which supersedes sec. 175 of title 21, U.S. Code, the deportation provision found in the Narcotic Drugs Import and Export Act, likewise provides that an alien convicted for violation of any statute of the United States prohibiting or regulating the importation of opium shall be taken into custody and deported in the manner provided in sections 19 and 20 of the act of 1917. Section 19 of the act of 1917 provides that an alien subject to its terms "shall, upon the warrant of the Attorney General, be taken into custody and deported." It may be argued that these various provisions contemplate only warrant proceedings for deportation of an alien convicted of a narcotic violation, and that he is in no way subject to the immigration laws. This argument may gain some slight strength from the fact that section 18 of the act of 1917 provides the mechanism for enforcement of section 3 of the act of 1917 wherein are found the excluding provisions. This argument, however, is not helpful. It presupposes that in the enforcement of the immigration laws exclusion and deportation are separate, distinct, and unrelated functions. Although the mechanics for the enforcement of exclusion provisions may differ from the mechanics for the enforcement of the deportation provisions, that difference in itself is not a reason for exclusively diverse enforcement of one body of law. It would be circuitous, futile, and unfair to hold an alien admissible and admit him and promptly undertake his deportation. It means little to the aliens whether the enforcement procedure is through warrant proceedings or on exclusion before a board of special inquiry ( Philippides v. Day, 283 U.S. 48). We have reached the conclusion in cases involving persons previously excluded or deported on charges involving prostitution that they are inadmissible despite the fact that section 3 does not specifically provide for their inadmissibility, N---- (55917/905). In the present case we believe the coherent framework of the immigration laws is best observed by holding the appellant inadmissible under the Act of February 18, 1931.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That appellant is applying for admission to resume his United States residence after a 1-day visit into Mexico;
(3) That appellant is not in possession of any consular or immigration documents;
(4) That the appellant has been convicted of a violation of the Narcotic Drugs Import and Export Act of 1909, as amended (title 21, U.S. Code, sec. 174);
(5) That the appellant can obtain employment and owns his own home.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 of the Immigration Act of 1924 the appellant is inadmissible as an immigrant not in possession of an immigration visa;
(2) That under Executive Order 8766 of June 3, 1941, the appellant is inadmissible as not in possession of a passport;
(3) That under the Act of February 18, 1931, the appellant is inadmissible as an alien who has been convicted for violation of a statute of the United States prohibiting or regulating the importation of opium;
(4) That under section 3 of the act of 1917 the appellant is not inadmissible as a person who has been convicted of a crime involving moral turpitude, to wit: violation of the Narcotic Drugs Import and Export Act (title 21, U.S. Code, sec. 174);
(5) That under section 3 of the act of 1917 the appellant is not inadmissible as likely to become a public charge.
OTHER FACTORS: The appellant was admitted into the United States in 1919 or 1920 and has been recorded as legally admitted as of June 6, 1924. He has lived in the United States continuously for more than the past 7 years. He is married and has six United States-born children whose ages vary from 13 to 1 years. As before stated he owns his own home. There is no indication that he has previously been in difficulty with the authorities.
The alien thus satisfies the domiciliary requirement of 7 years' residence required for the exercise of the seventh proviso of section 3 of the act of 1917. The question then is whether as a matter of law the seventh proviso of section 3 of the act of 1917 is available in this case.
Though found in section 3, the seventh proviso by its terms is not confined to aliens who are subject to exclusion as defined by section 3. We have previously argued that the alien is subject to exclusion because it would be futile, circuitous, and unfair to admit him and then immediately deport him. The converse of that argument applies here. If the immigration laws are a coherent whole then the seventh proviso will permit his admission though subject to exclusion as one convicted of a narcotic violation, and, of course, if once admitted under the high discretion granted to the Attorney General by the seventh proviso, he would not be subject to deportation.
The first clause of section 19 of the Immigration Act of 1917 provides for the deportation of "any alien who at the time of entry was a member of one or more of the classes excluded by law." This clause of course contemplates aliens excluded by future legislation as well as those excluded by the act of 1917 and any prior existing legislation, and it is recognized without question that the alien who enters in violation of an excluding provision of legislation subsequent to the act of 1917 falls within the first clause of section 19. This is a recognition that the immigration laws are intended to be a coherent whole.
It may be argued, however, that the amendment of May 26, 1922, to the Narcotic Drugs Import and Export Act, providing for the deportation of an alien convicted of a violation of that act, and the Act of February 18, 1931, which supersedes it, are statutes so remote from the general immigration laws and of such impelling force that the discretion found in the seventh proviso of section 3 of the act of 1917 cannot apply to them. In support of this argument it might be noted that the act of 1931 is not by its title amendatory of the act of 1917, although the House bill, H.R. 3394, 71st Congress, third session, was entitled an amendatory act. The acts of 1922 and 1931, however, have been judicially determined to be virtually interdependent with the act of 1917. As before noted the act of 1922 provides that the alien subject to its terms shall upon warrant issued by the Secretary of Labor be taken into custody and deported in accordance with the provisions of sections 19 and 20 of the act of 1917. The act of 1931 provides that an alien subject to its terms shall be taken into custody and deported in manner provided in sections 19 and 20 of the act of 1917.
It has been held that these references to the act of 1917 give to an alien the benefit of the "recommendation" clause found in section 19 of the act of 1917, so that the judge imposing sentence may recommend that the alien shall not be deported, in which event the deportation shall not be made or directed. United States v. George Wing, 6 F. 2d 896 (act of 1922); Dang Nam v. Bryan, 74 F. 2d 379 (act of 1931) (later reversed because appeal had not been timely, 78 F. 2d 720). It has been held that a sentence must be for more than 1 year in order to render the alien deportable. Weedin v. Moy Fat, 8 F. 2d 488; Hampton v. Wong Ging, 299 F. 289 (both act of 1922). It has also been indicated that had not the act of 1922 contained the phrase "at any time after his entry" the 5-year limitation found in section 19 of the act of 1917 would apply. Chung Que Fong v. Nagle, 15 F. 2d 789; United States ex rel. Grimaldi v. Ebey, 12 F. 2d 922. The act of 1931 provides that any alien who after its effective date shall be convicted shall be deported. This likewise has been held to remove the 5-year limitation found in section 19 of the act of 1917. Ianni v. Harris, 111 F. 2d 833. We thus find that the references found in the acts of 1922 and 1931 to sections 19 and 20 of the act of 1917 provide much more than the method in which deportation should be effected. The acts carry over into one another, recognize specific limitations or absence of limitations in each other, and otherwise limit, qualify, and define the right to deportation.
Attorney General William D. Mitchell, in an opinion to the Secretary of State dated June 19, 1931 (55754/647), advised that the ninth proviso of section 3 of the act of 1917 applied to a class made inadmissible by a separate act of Congress, the Act of October 16, 1918. He points out in that opinion that sections 28 and 3 of the act of 1917 should be reconciled and read together. Much of the thought of that very able opinion applies to this case.
We conclude that as the entire framework of the immigration laws requires a narcotic convict to be subject to exclusion, though not specifically made so, likewise the entire framework of the immigration laws permits the exercise of the discretion contained in the seventh proviso to section 3 of the act of 1917, to admit with freedom from deportation a narcotic convict.
Our next inquiry is whether the case of this alien in all its aspects merits the exercise of the discretion which the seventh proviso permits.
The alien gave as his explanation of the participation in the crime of which he was convicted that two men had engaged him in his capacity as a taxi driver to take them into Agua Prieta, Mexico, where his passengers left him for about 40 minutes and then returned with two cans, which the appellant later learned contained opium. He drove them back to Douglas, Ariz., where they were apprehended and arrested. The appellant admits that he suspected it was opium when it was placed in his car, but he did not learn definitely that it was opium until they had crossed the boundary into the United States. The appellant pleaded guilty and was sentenced as aforesaid. The appellant insists this is the only occasion in which he has brought strangers with suspicious merchandise across the boundary.
The appellant was released from prison on parole the day before his application for admission on October 3, 1941. He has evidently violated the terms of his parole by drinking a glass of wine and crossing into Mexico. This violation of his parole, however, may be unintentional.
At the later reopened hearing held on May 14, 1942, as directed by our order of April 1, 1942, there was introduced into evidence a letter from the customs agent of the United States Customs Service, Treasury Department, to the inspector in charge of the Immigration and Naturalization Service, at Douglas, Ariz. This letter states in detail the history of the case in which the alien was arrested and convicted. Two individuals sold some heroin to an inspector of the United States Narcotic Service in New York in March 1940. In the course of this transaction these individuals proposed to the inspector, whose identity as such was of course concealed, that they proceed to Douglas, Ariz., where it would be possible for them to purchase opium in Mexico which could be smuggled into the United States. These individuals, while serving a sentence for a previous narcotic violation, met a Mexican who would be able to provide them with the narcotics. The two individuals and the inspector then proceeded to Douglas, Ariz., on and about the first of May 1940. One of the individuals made connections with the alien herein and engaged him to drive his taxi for the purpose of their venture. The alien drove various members of the party across the border in his taxi several times and finally, on May 4, 1940, the smuggling was accomplished and the two individuals and the alien were arrested. The alien under questioning admitted his participation. The two individuals were sentenced by a Federal judge on July 29, 1940, to 1 to 3 years in the Federal penitentiary and a $500 fine, and 1 to 2 years and 6 months in the Federal penitentiary and a $500 fine. The alien first pleaded not guilty but on November 14, 1940, pleaded guilty as aforesaid and received sentence of 13 months and a fine of $100. The Federal Bureau of Investigation by comparison of the alien's fingerprint impressions has found no previous criminal history. The customs agent stated in his letter, however, that the alien had been a suspected narcotic trafficker for several years, and that one of the individuals said that the alien had aided him in smuggling opium in 1939. The alien was confronted with this letter at the reopened hearing. He contradicted certain minor details in the statement of his participation in the smuggling proceeding, but in general admitted his guilt. He denied that he knew the individual whom he is said to have assisted in smuggling prior to 1940. He denies that he has had any smuggling dealings with the Mexican who supplied the opium in Mexico.
We have no proof that contradicts the alien's statement that he has never before been involved in smuggling, either narcotics or anything else. It is incredible, however, that the first of the narcotic smugglers who arrived in Douglas on the first of May of 1940 should immediately have approached the alien herein and engaged his services without more ado in what was obviously an illicit enterprise unless he had known beforehand that the alien would be willing to participate in this narcotic violation. This circumstance tends to confirm the statement of the customs agent that the alien had theretofore been a narcotic trafficker, although very possibly in a minor capacity.
In the alien's behalf we are mindful that three United States citizens testified as character witnesses for him, and that the alien is the father of six United States-born children and has reared his family in this country and owns his own home here. Yet, in the criminal proceedings, the judge hearing the case imposed a relatively severe sentence and made no recommendation favorable to the alien. With good reason to believe that the alien had knowingly participated in narcotic smuggling prior to his arrest and conviction for the offense of May 4, 1940, and with insufficient grounds for an assumption that he has reformed, we must at this time deny the exercise in his favor of the relief available under the seventh proviso of section 3 of the act of 1917.
ORDER: It is ordered that the excluding decision be affirmed except on the ground that under section 3 of the act of 1917 the alien is inadmissible as a person who has been convicted of a crime involving moral turpitude and is likely to become a public charge and that he be excluded upon the additional ground that he is inadmissible under the Act of February 18, 1931.