56082/868
Decided by Board August 3, 1945.
Filipino — United States resident before May 1, 1934 — Excludability and deportability as alien if "reentry" after April 30, 1934.
A citizen of the Philippine Islands, who established residence in this country prior to May 1, 1934, is nevertheless subject to exclusion and deportation under the immigration laws as an alien, if he makes a "reentry" subsequent to April 30, 1934.
CHARGE:
Warrant: Act of 1917 — Admits commission and convicted of crime prior to entry; petty theft (California, 1932).
Discussion: The respondent is a 34-year-old single native and citizen of the Philippine Islands who has been living continuously in the United States since July 1927 when he was admitted for permanent residence. For 3 years prior to his arrest in deportation proceedings in August 1941, he worked in Alaska during the canning season. In the year 1939 the vessel upon which he was being returned to the continental United States stopped at a Canadian port prior to arriving at Seattle, Washington on August 28, 1939, at which time he was admitted as a returning legal resident. Irrespective of the respondent's desire not to stop at the Canadian port, the fact remains that the vessel upon which he was a passenger did arrive in this country from a foreign port or place. He must therefore be deemed to have entered the United States within the meaning of the immigration laws ( U.S. ex rel Claussen v. Day 279 U.S. 398 (1929)). So far as the record discloses that constituted his last entry into the United States, and we so find.
In May of 1932, while the respondent was living in San Francisco, Calif., a complaint was issued charging him and another person with having stolen two suits of clothes and a suitcase valued at $100. On May 2, 1932, the respondent, on his plea of guilty, was convicted of petty theft, a crime which involves moral turpitude, and was sentenced to the county jail for 3 months.
Prior to the adoption of the so-called Philippine Independence Act ( 48 U.S.C. 1231- 1247), approved on March 24, 1934, and accepted by concurrent resolution of the Philippine Legislature on May 1, 1934, Filipino citizens, who were then and still are American nationals, were not aliens within the meaning of the immigration laws. They were as free to enter and leave this country as were United States citizens and were not subject to deportation or exclusion. Upon the effective date of the act approved March 24, 1934, i.e., on May 1, 1934, the status of Filipinos under the immigration laws was radically changed. The stated purpose of that act was to provide for the complete independence of the Philippine Islands, for the adoption of a constitution and form of government for the Filipinos, and for other purposes. Under the act as originally enacted, complete independence was not to be granted until July 4, 1946, during which transition period Filipinos were to remain nationals of the United States and were to owe complete allegiance to this country. It was only upon the final and complete withdrawal of American sovereignty over the Islands that Filipinos were to lose their American nationality and that all the immigration laws were to apply to them to the same extent as in the case of other foreigners (section 14 of the act approved March 24, 1934). During the transition period the immigration status of Filipinos was to be determined under section 8 of the Tydings — McDuffie Act (the Philippine Independence Act), which, so far as here pertinent, read at the time of its enactment:
Section 3 of the act of June 29, 1944 (Pub. Law 380, 78th Cong., ch. 322, 2d sess.) provided for the advancement of the date of independence prior to July 4, 1946, by proclamation of the President of the United States after certain conditions were satisfied.
Sec. 8. (a) Effective upon the acceptance of this act by concurrent resolution of the Philippine Legislature or by a convention called for that purpose, as provided in section 17-(1). For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13 (c)), this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty. * * *."
(b) The provisions of this section are in addition to the provisions of the immigration laws, now in force, and shall be enforced as a part of such laws, and all the penal or other provisions of such laws not inapplicable, shall apply to and be enforced in connection with the provisions of this section. An alien, although admissible under the provisions of this section, shall not be admitted to the United States if he is excluded by any provision of the immigration laws other than this section, and an alien, although admissible under the provisions of the immigration laws other than this section, shall not be admitted to the Unted States if he is excluded by any provision of this section.
On June 8, 1934, regulations with respect to the admissibility and deportability of Filipinos were promulgated (General Order No. 209, 55775/253). Rule 33, sub. B, par. 1 (1) of those regulations read:
After April 30, 1934, all citizens of the Philippine Islands upon arrival at ports or places of entry in the United States, except the Territory of Hawaii, shall be excluded from admission unless found to be admissible under-(1) The Immigration Act of February 5, 1917; * * *.
Rule 33, sub. D, par. 1 (1) read:
All citizens of the Philippine Islands shall be subject to deportation, and may be deported in the same manner as aliens, with the following exceptions:
(1) A citizen of the Philippine Islands who has resided in the United States continuously since April 30, 1934, shall not be subject to deportation for any act of his that occurred, or mental or physical disease, disability, or defect that existed prior to May 1, 1934; * * *.
These regulations (rule 33 was subsequently amended by General Order 224, file 55775/253, December 11, 1935, to read No. 31) were in effect at the time of the respondent's last entry and are now embodied in 8 C.F.R. 172.3 and 172.9 (a). Subsequent to the effective date of the act of March 24, 1934, problems, mostly economic, concerning various aspects of the act during the transition period arose and became the subject of congressional action. One of these problems concerned the status of Filipinos living in the United States. In testifying at the public hearing on the proposed amendatory legislation, the Honorable Francis B. Sayre, Assistant Secretary of State and Chairman of the Interdepartmental Committee of Philippine Affairs, said the following with respect to this matter.
Hearings before the Committee on Territories and Insular Affairs, United States Senate, 76th Cong., 1st sess., on S. 1028, p. 30.
While the rights and privileges of American nationals in the Philippines are adequately provided for in the Tydings — McDuffie Act, there is no corresponding provision for Filipinos in the United States. Moreover, because the Tydings — McDuffie Act specifically provides that Filipinos, in immigration matters, are to be considered as if they were aliens, and because Filipinos are not citizens of the United States although they owe allegiance to the United States, the idea has arisen in some quarters of the United States that Filipinos are aliens in every sense of the word. This, of course, is not true under the existing law. In order to guard against attempts to discriminate against Filipinos as aliens, the bill makes clear that Filipinos in the United States shall continue to enjoy until July 4, 1946, the rights and privileges which they enjoyed when the commonwealth Government was inaugurated.
Both the Senate and House committees in reporting the amendatory bill favorably said:
While the rights and privileges of American citizens in the Philippines are adequately provided for in the act of March 24, 1934, there is no corresponding provision for Filipinos in the United States. The bill contains a provision designed to clarify misconceptions which have arisen with regard to the status prior to 1946 of Filipinos in the United States and to guard against possible discriminations against such Filipinos.
Thereafter, the act of March 24, 1934, was amended by the act approved August 7, 1939 ( 53 Stat. 1230). Section 2 of the latter act amended section 8 of the former by adding thereto a new subsection (d) which reads:
Pending the final and complete withdrawal of the sovereignty of the United States over the Philippine Islands, except as otherwise provided by this act, citizens and corporations of the Philippine Islands shall enjoy in the United States and all places subject to its jurisdiction all of the rights and privileges which they respectively shall have enjoyed therein under the laws of the United States in force at the time of the inauguration of the Government of the Commonwealth of the Philippine Islands. [ Italics supplied.]
No new regulations were promulgated after the passage of the act of August 7, 1939, and it was the administrative view at the time of the amendment that the status of Filipinos under the act of March 24, 1934, was in no wise affected. We still adhere to this view. The amendment of section 8, as disclosed by Assistant Secretary of State Sayre's testimony, the committee reports, and the amendatory language, was only declaratory of the prior and then existing status of Filipinos in the United States. For all purposes, other than immigration, they were American nationals and were to continue to enjoy the rights and privileges flowing from such a status. For example, if they desired to travel abroad, they were and are now entitled to American passports and the protection of this Government. But, for immigration purposes, they were and are considered to be aliens.
Board of Review, 55775/253 (Oct. 25, 1939).
It seems clear that under the immigration laws, as they read at the time of the respondent's last entry, and as they now read, Filipinos who entered the United States for the first time subsequent to April 30, 1934, are subject to all the provisions of the act of February 5, 1917, both with respect to exclusion and also deportation. It is equally clear that Filipinos who entered the United States prior to May 1, 1934, and who never left this country for any purpose are not subject to the provisions of the 1917 act. The issue with which we are confronted is whether Filipinos who entered the United States prior to May 1, 1934, and who maintained their residence in this country since that time, are subject to the act of February 5, 1917, if they leave this country temporarily and return subsequent to May 1, 1934, and if the act or conditions subjecting them to possible exclusion or deportation arose prior to that date. A literal reading of the then rule 31, sub. D, par. 1 (1), would require a finding that such a Filipino could not be deported. On the other hand, a literal reading of rule 31, sub. B, par. 1 (1), would require the exclusion of such an alien at the time of his application for admission. Such a construction of the regulations would be contrary to the principle that the excluding and deporting provisions of the act of February 5, 1917, should be so construed as to give effect to the act as a whole. Obviously, therefore, the literal terms of one of these regulations cannot be followed; otherwise a premium would be placed on illegal entries and those gaining admission by one means or another would have an unfair advantage over those who are unsuccessful in passing inspection at the border.
The legislative history of the Tydings — McDuffie Act convinces us that rule 31, sub. D, par. 1 (1) (now 8 C.F.R. 172.9 (a)), should be construed to apply only to those Filipinos who entered the United States prior to May 1, 1934, and who never thereafter left this country, even for a brief visit to foreign contiguous territory. If they did leave the United States, notwithstanding that they continued to maintain their residence here, they are not entitled to the benefits of that rule. To hold otherwise would grant Filipinos, who, it must be remembered, are deemed aliens for immigration purposes under the act approved March 24, 1934, a preferred status under the immigration laws, a status not enjoyed, for example, by expatriated former American citizens. The purpose of sub. D, par. 1 (1) of rule 31 was to protect only those Filipinos residing in the United States upon the effective date of the Tydings — McDuffie Act against expulsion because of an act committed or a condition that existed prior to that date for so long a time as they continued to remain physically in the United States. Obviously, any other construction of the act would have been unfair to the Filipinos then residing in this country. But, after the effective date of the act, Filipinos then residents of the United States knew or were presumed to know that they were aliens for immigration purposes and that all the disabilities that attached to the ordinary alien who left the United States and reapplied for admission attached to them. For example, the alien who is not subject to deportation because of a conviction subsequent to entry of a crime involving moral turpitude becomes liable to expulsion by leaving the United States and making a new entry. Likewise for Filipinos who have made or make a new entry subsequent to April 30, 1934. It is only by such a construction that the intent of Congress that Filipinos after April 30, 1934, were to be on a parity with other aliens can be carried out.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of the Philippine Islands;
(2) That the respondent last entered the United States at Seattle, Wash., on August 28, 1939;
(3) That on May 2, 1932, the respondent, on his plea of guilty, was convicted in California of petty theft.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that he has been convicted of and admits committing a felony or other crime or misdemeanor involving moral turpitude prior to entry, to wit: Petty theft.
(2) That under section 20 of the act of February 5, 1917, the respondent is deportable to the Philippine Islands at Government expense.Other Factors: The respondent has lived in this country continuously since July 27, 1927. At the time of his last entry he had an unrelinquished domicile of more than seven years and his admission could then have been considered under the seventh proviso to section 3 of the act of February 5, 1917. In accordance with the principle announced in Matter of L----, 56019/808 (August 29, 1940), we may now consider the nunc pro tunc exercise of that proviso.
The alien has made his home in this country for more than 17 years, having come here when he was 17 years of age. He is single and has no immediate family ties here. His father, brother, and sister, when he last heard from them, were living in the Philippine Islands.
In addition to being convicted of petty theft in 1932, for which the Governor of California declined to pardon him, the respondent was convicted in April 1938 in San Diego, Calif., on a vagrancy charge. He received a suspended sentence of 60 days as a result of that conviction. In October of 1940 another charge of vagrancy was dismissed and in December of that year he was found not guilty on a charge of assault with a deadly weapon. A character investigation conducted by the Immigration and Naturalization Service in Seattle, Wash., indicates that his Alaskan employers think very highly of him. Except for one witness, the investigation in Los Angeles, Calif., proved favorable to him. Though he admits that he had lived out of wedlock on several occasions, he denies ever having been connected with or assisted anyone engaged in the practice of prostitution.
Considering this record in its entirety, we feel that relief by way of the nunc pro tunc exercise of the seventh proviso is justified.
Order: It is ordered that the alien be regarded as having been lawfully admitted for permanent residence at the time of his last entry on August 28, 1939, under the seventh proviso to section 3 of the act of February 5, 1917, solely in regard to the ground of inadmissibility arising out of his conviction, on his plea of guilty, on May 2, 1932, of the crime of petty theft, and that the proceedings be dismissed.