A-3758282
Decided by Central Office December 1, 1948
Narcotic conviction — Violation of 21 U.S.C. 174 — As ground of exclusion because deportable under the Immigration Act of 1917 — Effect where sentence is wholly suspended — Deportability under the act of February 18, 1931 (before its amendment June 28, 1940) (8 U.S.C. 156 (a)).
(1) An alien, convicted in 1935 (on plea of guilty) for violation of the Narcotic Drugs Import and Export Act (act of February 9, 1909, as amended, 21 U.S.C. 174) received a suspended sentence (and was placed on probation for 5 years). He is not thereby subject to exclusion (1948) under section 3 of the Immigration Act of 1917 because of his admission of the commission and/or conviction of this offense, since this offense does not involve moral turpitude (see 1 IN Dec. 293).
(2) If admitted to the United States (1948) this alien would not be deportable under the act of February 18, 1931 (before its amendment, June 28, 1940) because he received a wholly suspended sentence.
(3) If admitted to the United States (1948) this alien would not be deportable under the act of February 9, 1909, as amended ( 21 U.S.C. 175) because he was not sentenced to imprisonment (for a year or more) nor was there any actual imprisonment.
(4) Since he would not be deportable upon admission (1948) as noted in (2) and (3) above, he is not subject to exclusion under the Immigration Act of 1917 on the ground that upon admission (1948) he would be so deportable. (See 1 IN Dec. 293, where alien was sentenced.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE CENTRAL OFFICE
Discussion: The subject of these proceedings arrived at Honolulu, T.H., on September 23, 1948, as a passenger on Pan American Airways plane No. NC 88883 and applied for admission as a returning resident alien. After a hearing before a Board of Special Inquiry, he was excluded on the above-stated grounds. He appealed.
The appellant, age 64, native and citizen of Korea, was admitted to the United States for permanent residence at Honolulu, T.H. on March 31, 1905, and he resided continuously in Hawaii from that time until August 14, 1948, when he departed for a visit to Korea. He now returns to Hawaii, after an absence of approximately 5 weeks, to resume his residence in the United States. It appears that he filed an application for a reentry permit prior to his departure from Hawaii, but left before such document was issued to him, anticipating that he would be able to receive the document at the American Consulate in Korea. After his arrival in Korea, he did visit the American Consul there but was told that the latter did not have the reentry permit. The appellant then returned to Hawaii, without having in his possession either a permit to enter or a passport, his exclusion being based upon the lack of such documents.
Central Office records show that the appellant's application for a reentry permit, dated August 9, 1948, was received here on August 17, 1948; that favorable action was taken thereon and that permit No. 1516089 was issued on August 23, 1948. The records also show that the permit was mailed to the American Consulate at Seoul, Korea.
The appellant is a widower. He has three children who were born and reside in Hawaii. The youngest child, age 24, is presently serving in the United States Army. The appellant was convicted in 1943 on several occasions for being drunk and in that same year he was also fined $50 for failure to keep a tenement house clean. He further testified that he was arrested in 1913 or 1914 for fighting. His only serious arrest occurred in 1935, following which he was convicted, upon his plea of guilty, in the United States District Court, Honolulu T.H., on two counts for violation of the Narcotic Drugs Import and Export Act (the act of February 9, 1909, as amended). He received a suspended sentence and was placed on probation for a period of 5 years.
The appellant's conviction for the narcotic violation does not affect his immigration status. The act of February 18, 1931, prior to the amendment of June 28, 1940, provided for the deportation of any alien who, after the time of enactment shall be convicted and sentenced for a violation of or conspiracy to violate any statute of the United States regulating or otherwise dealing with narcotics. The amendment of June 28, 1940, deleted the requirement as to "sentence" but provided that no alien should be made deportable by reason of the amendment on account of any act committed prior thereto. In the instant case the narcotic violation was committed prior to the 1940 amendment. Hence, to bring the alien within the purview of the act of 1931, it is necessary to show that he was "sentenced" within the meaning of that statute. It has been judicially held that an alien who receives a wholly suspended sentence for a narcotic violation is not deportable under the act of 1931. In re Gerardi, unreported case, U.S.D.C. Detroit, Mich., March 13, 1933 (Central Office file 55830/574). This view was adopted by the Solicitor of Labor in an opinion (55793/270, Matter of M----), dated July 12, 1934, and a circular letter, based thereon, dated September 18, 1934, was distributed to the field under Central Office file No. 55875/938. See Matter of M---- A-5338673 (Oct. 10, 1934, Board of Review, formerly 55793/270).
The respondent is not inadmissible under section 3 of the Immigration Act of 1917 since it has been held that violation of the Narcotic Drugs Import and Export Act is not an offense involving moral turpitude. Matter of V---- 56096/451 (1942) ( 1 IN Dec. 293.)
The sole remaining question is whether the appellant's conviction for the narcotic violation rendered him deportable under the act of 1909, as amended ( 21 U.S.C. 175). It has been judicially held that an alien is not subject to deportation under that act, unless his conviction thereunder is followed by a sentence to imprisonment for a term of 1 year or more. Weedin v. Moy Fat, 8 F. (2d) 488 (1925, C.C.A. 9). That case reasons that the amendment of May 26, 1922, to the act of 1909, incorporates by reference sections 19 and 20 of the Immigration Act of 1917 and, therefore, that the authority to deport is limited to the requirement set forth in section 19 that the alien be convicted and sentenced to a term of imprisonment for 1 year or more. Aside from that ruling it has been recognized in another circuit that there must be some actual "imprisonment" to bring the deportable provisions of the act of 1909 into operation and that this does not occur when the alien's sentence is suspended. U.S. ex rel. Cassetta v. Commissioner of Immigration, 56 F. (2d) 826 (C.C.A. 2, 1932). It follows that the appellant's immigration status is not affected by the act of 1909, as amended.
In view of the fact that the respondent has maintained a lawful residence in the United States for a period of more than 30 years and since his only absence has been of a temporary nature of approximately 5 weeks, he may be readmitted as a returning resident under the authority contained in section 13 (b) of the Immigration Act of 1924. In consideration of his close family ties in the United States and his long residence, it is believed that such discretionary action would be appropriate herein.
Recommendation: It is recommended that the appeal be sustained and the alien's admission authorized as a returning resident under the provisions of section 13 (b) of the act approved May 26, 1924, conditioned upon the Department of State granting a waiver of the documentary requirements.
So ordered.