United States Ex Rel. Volpe v. Smith

EVANS, Circuit Judge

(after stating the facts as above).

The legal questions involved may be stated in the form of two queries:

First. Is an alien deportable under Section 155, Title 8, U. S. C. (8 USCA § 155), which provides for the deportation of “any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude,” because of a conviction in the United States for counterfeiting, which conviction occurred nineteen years after his first entry and three years prior to his reentry?

Second. Does an alien enter the United States without inspection within the meaning of the statute (8 U. S. C. § 155 [8 USCA § 155]) subjecting him to deportation therefor, when he falsely states to the immigration inspector upon reentry that he is a naturalized citizen of the United States and thereby avoids further interrogation by the inspector?

The district court answered the second question in the affirmative and dismissed the petition for habeas corpus. Judge Wilkerson answered the first question in the negative, basing his decision on what he believed to be the weight of divided judicial opinions. He did not express his personal opinion on this question, but said:¹

“The question is one which has not been decided by either the Supremo Court of the United States or the Circuit Court of Appeals for the Seventh Circuit. * * *

“It appears that this question has been decided against the United States by the Circuit Court of Appeals of two circuits. A District Court, in my opinion, should accept that as the weight of authority and should follow it, unless and until a different rule is laid down by the Supreme Court or by the Court of Appeals of this Circuit.”

Courts which have passed on both questions have differed in their conclusions. This court has been unable to agree upon the correct answer to'either question.

The part of the'statute applicable to the facts set forth in the first query reads: “any alien who was convicted, or who admits the commission, prior to entry, of a f elony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Secretary o.f Labor, be taken into custody and deported.”

Cases which hold that the deportable of'fense involving moral turpitude may have been committed in the United States or abroad are here collected.² Cases which limit the commission of the offense referred to by the statute to those committed abroad are also here collected.³

In reaching our conclusion on this ques- ' tion, the majority of this court have done so on the following assumptions and reasoning.

Entry into the United States and continuous residence herein afterwards are not natural nor inalienable rights which an alien possesses, but are privileges enjoyed by sufferance of the United States; Johannessen v. U. S., 225 U. S. 227, 240, 32 S. Ct. 613, 56 L. Ed. 1066. In other words, the United States may deny an alien permission to enter the United States altogether, and likewise the United States may remove the alien from its borders as it sees fit. This absolute right to deny entry to the alien, as well as the right to remove him from its boundaries, carries with it the lesser authority to impose conditions upon the alien’s right to enter or to make his stay here conditional upon his good behavior, and his respect for law, and his non-violation of the criminal laws of the land. Congress has exercised its power to deal with the subject and has limited and restricted both the alien’s right to enter and his right to remain after he has entered. Responding •to a rising tide of public sentiment, Congress has, during the past fifteen years, made these limitations and restrictions more specific and drastic. The same authoritative voice of the United States has, with what seems to be- a reasonable regard for the welfare of both the alien and the people of the United States, declared that an alien who has committed one of several designated crimes, all of which are offensive and reprehensible and involve moral turpitude, shall be excluded from the United States. In other words, it has provided that the alien who is here by sufferance, and who is, so to speak, a guest, betrays the confidence which was evidenced by his permission to enter, when he commits an offensive crime. This betrayal of confidence terminates his right to remain here'. His privilege of staying may thereafter be revoked. Protection against removal of the alien by the United States, however, has been provided by extending to him the privilege of citizenship which is open to all who have lawfully entered the United States for the purpose of residing here permanently. Onpe a citizen, the aliénbom.is not subject to deportation.

The entire matter being one for determination by the United States Government, and Congress having spoken on the matter, courts may not legislate on the subject or attempt to substitute their judgments for that of Congress.

In studying the language of this statute, it is significant to note that the crimes specified are those familiar to the people of the United States—“felony,” “misdemeanor.” The phrase “involving moral turpitude” is a familiar terrain the courts of the United States. The language thus adopted is rather persua- - sive. For it would indeed be strange that Congress in phrasing the statute should define the offenses for which the alien might be removed, in the language of the American lawyer and the American court, if only offenses committed by the alien in a foreign country were to be included.

In Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967, and Claussen v. Day, 279 U. S. 398, 49 S. Ct. 354, 73 L. Ed. 758, the word “entry” as used in the above-quoted section was held to include a subsequent entry as well as the original entry. Why then should courts restrict its meaning by holding that the offense must be committed before the original entry? Finally, there is no reason— no basis for the distinction between like offenses committed abroad and those committed in the United States. When we make this statement we assume, of course, that appellant would be excludable had he practiced counterfeiting in Cuba. Are not' the same reasons justifying his exclusion present if he counterfeited in the United States ? The time limitations in the statute no doubt are in the nature of a Statute of Limitations, which has sound reason to support it. But a distinction based upon the place where the crime is committed is one which offers no rational explanation for the distinction which appellant has attempted to make.

It is not the length of the alien’s residence in the United States that is significant. What controls is the fact that alien status has continued during all the years he resided in the United States. As an alien, he enjoyed certain privileges and immunities which would not have been his had he been a citizen. On the other hand, as sueh alien he was subject to deportation if and when Congress saw fit to provide for his removal. Under the legislation wMeh Congress enacted on the subject, his stay was made to depend upon his own good behavior. If he saw fit to flout the laws of tho country which gave him shelter, to engage in counterfeiting its money or its war savings stamps, then Ms exclusion was the result of his own improper conduct. If there bo any basis for distinguishing between offenses committed abroad and those committed in the United States, it would seem that Congress might well have viewed the latter as the more reprehensible. For naturally, counterfeiting by the alien abroad, while conduct over which Congress would hardly be enthusiastic, would be less irksome, less provocative of action by Congress than indulging in a similar pastime in the United States.

It is, however, idle to further pursue the possible or probable reasons that motivated the various Congresses in passing the legislation enacted on the subject of immigration. But surely, in passing, it may be fairly and persuasively said that there are better reasons for closing the door to the immigrant who has a criminal record than for excluding one because he is illiterate, a pauper, or because of the color of his skin.

The question in the last analysis is a very narrow one. It is: What is tho meaning of the word “entry” ? Does it mean original entry? Or do the courts give to the word a meaning unrestricted by a limiting adjective? Fortunately, the Supreme Court, in Claussen v. Day and Lewis v. Frick, supra, defined it as moaning what it says—not only the original, the second or the last entry, but any entry.

Question number one should be answered in the affirmative.

As to the second question, the courts are likewise in disagreement as to the effect of an alien’s falsely stating to the immigration inspector that he is a citizen of the United States. Herewith are collected cases which uphold an affirmative answer ⁴ and also those which hold to the contrary.⁵

The section of the statute applicable to this question reads as follows: “ * * * at any time within three years after entry, any alien * * * who enters without inspection, shall, upon the warrant of the Secretary of Labor, he taken into custody and deported. * * »” (8 USCA § 155.)

The character of the deception which is hero under consideration is significant. It was not one that went to a matter of detail—an incident in the officer’s examination of the applicant. It was not merely a case of tho applicant’s falsifying. The falsification wont to the vitals of any inspection. If appellant were a citizen of the United States, there was no inspection required. In fact, the inspector would have offensively exceeded Ms authority had he inspected a citizen after satisfying himself that the entrant was a citizen. Only inspection of aliens was necessary. The preliminary inquiry into appellant’s citizen status was a requisite to determine whether any inspection was needed. Appellant’s deception, therefore, was of a nature which resulted in the avoidance of an inspection.

The wisdom, as well as the necessity, of requiring an alien entering the United States to undergo an inspection is apparent. Regulation and control of immigration would be impossible without examination and inspection of the incoming aliens. If the sections of the statute which exclude aliens who are diseased, criminal or insane persons, are to he effectively earned out, examinations are necessary. If the quota law is to bo complied with, all aliens must report for registration and inspection. It is to secure the enforcement of the other sections of the immigration act, which are enacted for the benefit of the public generally, that registration and inspection of aliens are so essential.

In disposing of this second question, therefore, it might be, and is, without further argument or the citation of authorities, assumed that no alien may lawfully enter the United States except as he submits to inspection and meets the physical, educational, and moral requirements wMeh Congress has seen fit to prescribe. Equally clear and unequivocal is the statute wMeh provides that aliens who do not enter tho United States lawfully may be deported.

Had the entering alien failed to report to the inspector at all, he would not have complied with the statute which required an inspection. Had he reported to tho inspector and at the point of a revolver secured a record which showed an affirmative right to enter the United States, he would hardly contend that he submitted to inspection. May an alien through the more subtle, but none the less effective, method qf deception aeeomplish. what he could not have done by duress? Is fraud less destructive than duress or entire avoidance, if official action (here an inspection) he thereby avoided? Considering the purposes of an inspection, we conclude that anything which defeats it—fraud, deceit or duress—negatives it, avoids it.

No other false or fraudulent representation could have accomplished its unlawful purpose so effectively as the one appellant adopted. To assert that he was a citizen of -the United States and that his naturalization papers were in Chicago wholly disarmed the inspector and terminated the inspection. What the officer would have discovered, or might have discovered, had the inspection not been thwarted is beside the question. The inspection contemplated was defeated. In legal effect, there was no inspection.

This appeal, being from a decree dismissing an application for a writ of habeas corpus, in which proceeding the reviewing court is not at liberty to weigh the evidence, but'merely to ascertain whether there is any evidence upon which the order of deportation may lawfully rest, I have not discussed any of the conflicts in the evidence nor attempted to weigh such conflicting statements.

The judgment is affirmed.

1 Orally.

2 U. S. ex rel. Medich v. Burmaster (C. C. A.) 24 F.(2d) 57; Bendel v. Nagle (C. C. A.) 17 F.(2d) 719, 57 A. L. R. 1129; Weedin v. Tayokichi Yamada (C. C. A.) 4 F.(2d) 455; Gomes v. Tillinghast (D. C.) 37 F.(2d) 935.

3 Wilson v. Carr (C. C. A.) 41 F.(2d) 704; Wong Yow v. Weedin (C. C. A.) 33 F.(2d) 377; Browne v. Zurbrick (C. C. A.) 45 F.(2d) 931.

4 U. S. ex rel. Natali v. Day (C. C. A.) 45 F.(2d) 112; Ex parte Saadi (C. C. A.) 26 F.(2d) 458; Williams v. U. S. (C. C. A.) 186 F. 479; Ex parte Greaves (D. C.) 222 F. 157.

5 U. S. ex rel. Iorio v. Day (C. C. A.) 34 F.(2d) 920; U. S. v. Southro (C. C. A.) 8 F.(2d) 1023; Ex parte Guest (D. C.) 287 F. 884; Ex parte Lalime (D. C.) 244 F. 279.