Gonzales v. Barber, District Director, Immigration and Naturalization Service, San Francisco, Cal , 207 F.2d 398 ( 1953 )

DENMAN, Chief Judge.

This is an appeal from a judgment of the United States District Court for the Northern District of California, denying a petition for a writ of habeas corpus to a native of the Philippine Islands held for deportation.

The questions presented are: (1) whether appellant has been twice convicted of crimes involving moral turpitude and (2) whether the lawful coming into the continental United States from its possession the Philippine Islands by a native thereof prior to the Philippine Independence Act of 1934, 48 Stat. 456, is an “entry” into the United States within the provisions of § 19 of the Immigration Act of 1917, formerly 8 U.S.C. § 155.¹

Gonzales, a native of the Philippine Islands, lawfully came into the continental United States at the age of 17 in 1930, and has since resided there. ' In 1941. he was charged with the crime of assault with a deadly weapon with the intent to commit murder. He was tried and convicted of the lesser crime of assault with a deadly weapon, and was sentenced to a term of one year in the Alameda County Jail, of which he served ten months. In 1950, Gonzales was convicted of the crime of second-degree burglary and was sentenced under Washington’s indeterminate sentence law to the State Penitentiary at Walla Walla and there served two years.

A warrant of arrest was issued by the Immigration and Naturalization Service on October 4, 1950, charging that after his entry into the United States he had “been sentenced more than once to imprisonment for terms of one year or more because of conviction in this country of crimes involving moral turpitude, committed after entry, to-wit: Assault with a deadly weapon, and burglary in the second degree.” Warrant hearing proceedings were then held at which appellant was represented by counsel, and thereafter a warrant for the deportation was issued on July 25, 1951.

After the Order of Deportation had been issued, appellant petitioned for a writ of -habeas - corpus to the United States District Court for the Western District of Washington, Northern Division. The petition was denied. Thereafter, Gonzales was transferred to San Francisco to effect his deportation. There, the current petition for habeas corpus was filed and denied by the district court and this appeal followed.

Gonzales first claims that the crime of assault with a deadly weapon, of which he was convicted in the California courts, does not — under the circumstances involved — constitute a crime involving moral turpitude. He argues that the crime was only a misdemeanor inasmuch as he was not sentenced to the State Prison. See California Penal Code, § 17. While this is true, it is irrelevant. The gravity of the punishment imposed upon the alien is not determinative of the question of whether the crime is one involving moral turpitude. U. S. ex rel. Zaffarano v. Corsi, 2 Cir., 63 F.2d 757.

Secondly, he argues that the crime is not, per se, one which involves moral turpitude. A California case is cited in which it was held that an assault with a deadly weapon was not such a crime for purposes of disbarment of an attorney. In the Matter of Disbarment of Rothrock, 16 Cal.2d 449, 106 P.2d 907, 131 A.L.R. 226. However, there the California court was concerned with whether the crime involved such moral turpitude as to reflect upon the attorney’s moral fitness to practice law, a state question. Here we are faced with the federal question of whether the crime involves such moral turpitude as to show that the alien has a criminal heart and a criminal tendency — as to show him to be a confirmed criminal. Fong Haw Tan v. Phelan, 333 U.S. 6, 9, 68 S.Ct. 374, 92 L.Ed. 433. In the federal law, assault with a deadly weapon is such a crime. U. S. ex rel. Zaffarano v. Corsi, supra; U. S. ex rel. Mazzillo v. Day, D.C.S.D.N.Y., 15 F.2d 391; U. S. ex rel. Ciccerelli v. Curran, 2 Cir., 12 F.2d 394; Weedin v. Tayokichi Yamada, 9 Cir., 4 F.2d 455.

Gonzales next contends that he is not within the statutory class referred to in the deportation order. He claims that he is not an alien but a national of the United States. This contention is without merit. Gonzales became an alien on July 4, 1946, upon the proclamation of Philippine Independence. Mangaoang v. Boyd, 9 Cir., 205 F.2d 553; Cabebe v. Acheson, 9 Cir., 183 F.2d 795.

Gonzales claims that he is not within the intent of § 19 of the Immigration Act of 1917, former 8 U.S.C.A. § 155 (the applicable portions of which are set forth in the margin).² His argument essentially is that he was not an alien until Philippine Independence and hence that as to acts occurring prior to the time the statute is inapplicable. Section 8(a) (1) of the Philippine Independence Act of 1934, 48 Stat. 456, 462, provides in part that: “For the purposes of the Immigration Act of 1917 * * * 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.”

The District Director argues that this statute compels a conclusion that Gonzales was to be treated as an alien at the time he was convicted of assault with a deadly weapon in 1941. The Immigration Act of 1917 was one of the statutes specifically envisioned by Congress in providing that for its purposes Filipinos “shall be considered as if they were aliens.” Since both convictions occurred after the effective date of the Philippine Independence Act of 1934, Gonzales is properly subject to deportation under § 19 of the Immigration Act of 1917 if he is otherwise subject to its terms.

Gonzales contends that he is not otherwise subject to the terms of that statute, because when he came into the United States in 1930, he did not make the “entry” required by § 19 of the Immigration Act of 1917 cited supra. This contention is meritorious. In Mangaoang v. Boyd, supra, it was stated, one judge reserving judgment, that a Filipino who came into the United States prior to the Philippine Independence Act had not technically “entered” the United States and hence that Section 22 of the Internal Security Act of 1950 U.S.Code Congressional Service 1950, p. 984 (providing that aliens who, at the time of entering the United States or at any time thereafter, are members of the Communist Party of the United States, shall be deported) was inapplicable. Here we are dealing with the portion of Section 19 of the Immigration Act of 1917 concerning convictions for two crimes involving moral turpitude “committed at any time after entry”. The question then is whether Gonzales had made an “entry” as that word is used in the clause last quoted.

In U. S. ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 77 L.Ed. 1298, “entry” was defined as including “any coming of an alien from a foreign country into the United States.” This definition was followed in subsequent cases, Delgadillo v. Carmichael, 332 U. S. 388, 68 S.Ct. 10, 92 L.Ed. 17; U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, and has been adopted by the Immigration and Nationality Act of 1952, § 101(a) (13).³ At the time Gonzales arrived in this country in 1930, he was not an alien and hence not covered though coming from a foreign country or outlying possession, but was a United States national coming from an outlying possession. There has been no “entry” by an alien, and hence there have not been two crimes involving moral turpitude “committed at any time after entry”. It follows that Gonzales is not subject to deportation under Section 19 of the Immigration Act of 1917.

We recognize the fact that this definition of the word “entry” is not its plain and obvious meaning, but we also recognize that the word has become a word of art. While it is true that the ultimate holdings in Volpe v. Smith, supra, and U. S. ex rel. Schlimmgen v. Jordan, supra, were that the coming of an alien into the United States for the second time was an “entry,” we do not rely upon the holding of these cases but merely cite them as showing the narrow meaning which has been ascribed to the word.

To the contention that the holdings in Delgadillo v. Carmichael, supra, and Di Pasquale v. Karnuth, 2 Cir., 158 F.2d 878, were necessary to avoid an obvious injustice and hence do not support our position, it should be noted that not all judges agree on what is an “obvious injustice”; in fact this court did not see the obvious injustice in the Delgadillo case, Del Guercio v. Delgadillo, 9 Cir., 159 F.2d 130. No appellate case has been found which ascribes any other meaning to the term “entry” than that used here. The meaning of a term used in a statute cannot mean one thing for one situation and something else for a different situation else the law would not have that reasonable certainty which the people have a right to expect.

The definition of entry set out in § 101(a) (13) of the Immigration and Nationality Act of 1952 is not cited because we think it controlling in this case, but only because it shows that Congress, in revising the immigration and nationality laws, recognized what we hold to be the judicial meaning of the term in relation to immigration and nationality statutes.

For the contention that we should give the plain and ordinary meaning of the word entry is quoted a passage written by Justice Rutledge speaking for a majority of the Supreme Court in a case involving a criminal statute, United States v. Brown, 333 U.S. 18, 25, 26, 68 S.Ct. 376, 92 L.Ed. 442. We prefer to rely upon the statement of Justice Douglas made on the same day the Brown case was decided speaking for a unanimous court in a civil case involving Section 19 of the Immigration Act of 1917, in which this court was reversed for giving a broad construction of the very statute with which we are here concerned, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433:

“We resolve the 'doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, [92 L.Ed. 17]. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”

The word entry has been here given the narrow meaning which, has been ascribed to it in many cases. See Man-gaoang v. Boyd, 9 Cir., 205 F.2d 533, and the cases cited in footnote 5.

The judgment of the district court is reversed and the cause remanded with instructions to issue the writ and to order Gonzales’ discharge.

1 . Immigration and Nationality Act of 1952, § 241, 8 U.S.C.A. § 1251.

2 . § 19, Immigration Act of 1917: “ * * * except as hereinafter provided, any alien who, after Hay 1, 1917, is sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. * * * The provisions of this section, with the exceptions hereinbefore noted, shall be applicable to the classes of aliens therein mentioned irrespective of the time of their entry into the United States; and shall also apply to the cases of aliens who come to the mainland of the United States from the insular possessions thereof.” (Emphasis supplied.)

3 . Immigration and Nationality Act of 1952, Sec. 101(a) (13), 8 U.S.C.A. § 1101(a) (13):

“(13) The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, * *