A-1922409.
Decided by Board November 30, 1954.
Permission to return to unrelinquished domicile — Section 212 (c), Immigration and Nationality Act — May not be exercised nunc pro tunc where alien neither excludable nor deportable prior to December 24, 1952 — Narcotics violation — Section 241 (a) (11) of the act.
An alien who entered the United States prior to December 24, 1952, the effective date of the Immigration and Nationality Act, and who is found deportable under that act by reason of conviction for violation of narcotic laws in 1927, may not be granted nunc pro tunc section 212 (c) relief with respect to such entry when he was neither excludable nor depertable prior to December 24, 1952.
CHARGE:
Warrant: Act of 1952 — Conviction of violation of narcotic laws.
BEFORE THE BOARD
Discussion: This case is before the Board on appeal from the decision of a special inquiry officer in which he found the respondent ineligible for suspension of deportation and ordered deportation.
The record relates to a 71-year-old married male alien, a native and citizen of Mexico, who was admitted to the United States for permanent residence at El Paso, Texas, on June 12, 1911. He testified that he was absent from the United States on four occasions since that entry, that is, for a short period in September 1946, from December 2, to December 7, 1948, from December 10, 1948, to January 4, 1949, and from August 27, 1952, to September 8, 1952, at which time he asserted he made his last entry into this country. It appears that he was readmitted to the United States on presentation of his resident alien's border-crossing identification card.
Respondent identified as relating to him a certified copy of a two-count indictment filed in the United States District Court, Southern District of California, Southern Division, Los Angeles, California, on January 5, 1927. Count one of the indictment charges that the respondent on or about December 30, 1926, violated the Act of February 24, 1919, amending the Act of December 17, 1914, in that he, and another named defendant, knowingly, willfully, unlawfully and feloniously purchased, sold, dispensed and distributed approximately one ounce of heroin and approximately one ounce of cocaine which were not in the original package. The second count charged that the same defendents on or about December 30, 1926, violated the Act of May 26, 1922, amending the Act of January 17, 1914, and the Act of February 9, 1909, in that they knowingly, willfully, unlawfully, feloniously and fraudulently received, concealed, bought, sold and facilitated the transportation and concealment after importation of about one ounce of heroin and about one ounce of cocaine which the defendants knew had been imported into the United States contrary to law. The respondent stated in a preliminary statement made to an officer of this Service that he pleaded not guilty but was tried by a judge without a jury. In his application for suspension of deportation dated March 23, 1954, he stated he entered a plea of guilty. An endorsement on the indictment shows that pleas of guilty were entered by both defendants. We are satisfied that the record establishes that the respondent pleaded guilty.
Respondent also identified certified copy of an order entered in the same court in which the indictment was presented showing that the court
now pronounces sentence upon defendants herein for the crime of which they stand convicted, namely, violation of the Harrison Narcotic Act of February 24th, 1919, amending the Act of December 17th, 1914, and the Jones Miller Act of May 26th, 1922, amending the Act of January 17th, 1914, and amending the Act of February 9th, 1909, and is the judgment of the Court that each of said defendants G---- G---- and J---- J---- S---- be imprisoned in the Los Angeles County Jail for the term and period of ninety days on the first count of the Indictment, and be imprisoned for the term and period of two years in a Federal Penitentiary to be later designated; and it is further ordered that the execution of the penitentiary sentence as to each defendant be suspended on the condition that said defendants observe the discipline of the County Jail, observe the laws of the National, State, and local Government relative to narcotics and remain within the jurisdiction of the Court.
Counsel, in his brief, argues in the alternative. First, he asserts that the respondent was not convicted of count two of the indictment but that it should be deemed to have been dismissed. This reasoning is based upon the fact that the sentence of the court specifically referred to a 90-day period of imprisonment for the first count but when talking of the suspended sentence of two years in the penitentiary the court made no reference to either the first or second count to which it was to apply. He further asserts that the court refers, in its sentence, to the word "offense" and "crime" and that these words are in the singular rather than in the plural as should have been the case if the respondent had been sentenced on both counts. He then asserts that since this showed an intention that the respondent be deemed to have been convicted solely on the first count, it must be concluded that there has been an acquittal as to the second count.
We are not able to agree with the foregoing argument of counsel. In the sentence of the court, a portion of which has been quoted above, it is clearly seen that the court pronounced sentence "for the crime of which the (respondent) stands convicted namely * * *," specifying violations of the Harrison Narcotic Act and the Jones Miller Act. Furthermore, it is noted that there was a guilty plea not to one count but in general. We, therefore, do not concur with the argument of counsel that the respondent was acquitted of the second count, namely, the violation of the Jones Miller Act of 1909, as amended.
He then argues that the respondent should not be deemed to have been convicted properly on the first count because the indictment insufficiently charged the defendant with a violation of the Harrison Act because of lack of specificity. He, therefore, asserts that the sentence or judgment based on the indictment is void and that the respondent has never been convicted. In reply to this assertion of counsel, it is sufficient to state that in deportation proceedings we are bound by the record of conviction and that we may not retry or relitigate the criminal offense.
In view of the foregoing, we conclude that the record adequately establishes that the respondent has been convicted of violation of the Harrison Narcotic Act and the Jones Miller Act and that he is deportable under section 241 (a) (11) of the Immigration and Nationality Act.
The respondent applied for suspension of deportation and a special inquiry officer found him ineligible under section 244 (a) (5) of the Immigration and Nationality Act on the ground that since the respondent has visited Mexico on three occasions during the past ten years it cannot be found that he has established physical presence in the United States during the ten years required ( Matter of M----, A-2669541, Int. Dec. No. 442 (5, I. N. Dec. 261) and Matter of Z---- A---- N----, T-303081, Int. Dec. No. 462 ( 5 IN Dec. 298)).
As previously stated, respondent's counsel's brief argues in the alternative. His first point relating to nondeportability has been disposed of. In his second point he argues that if the Board finds the respondent deportable it should be found that he is eligible for suspension of deportation under section 244 (a) (1) or 244 (a) (2) or that the respondent should be granted relief by a nun pro tunc exercise of section 212 (c) of the Immigration and Nationality Act. Before going into counsel's arguments specifically, there are certain fundamentals necessary for a proper understanding of the applicable legal principles in this case which must be set forth. Basically these principles establish that the respondent was not excludable or deportable from the United States until the effective date of the Immigration and Nationality Act, that is, December 24, 1952. He was not subject to deportation under the 1909 act because his conviction was not followed by a sentence to imprisonment for a term of one year or more ( Weedin v. Moy Fat, 8 F. (2d) 488 (C.C.A. 9, 1925)) and 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 ( United States ex rel. Cassetta v. Commissioner of Immigration, 56 F. (2d) 826 (C.C.A. 2, 1932); Matter of Y---- M---- K----, A-3758282, 3 IN Dec. 387, 389; Matter of S----, A-1892436, 3 IN Dec. 460). Furthermore, the act of 1909 provides only for the arrest and deportation of an alien, who after entry has been convicted and sentenced. In the event such an alien reenters the United States he would not be subject to deportation ( Matter of H----, 56196/392, 2 IN Dec. 406, 409). Similarly, the respondent was not deportable or excludable under the Act of February 18, 1931, as amended, because that act relates only to offenses committed on or after its effective date.
Inasmuch as the foregoing establishes lack of excludability or deportability until December 24, 1952, section 212 (c) of the Immigration and Nationality Act may not be applied nunc pro tunc to any of the respondent's past entries by virtue of any asserted inadmissibility or deportability because of the narcotic convictions per se. One of counsel's arguments is that the respondent's last entry took place after the enactment of the Immigration and Nationality Act and that therefore the respondent was excludable. It is true that the act had been enacted but its effective date was December 24, 1952, and consequently the respondent was not excludable in September 1952 as asserted by counsel. Counsel also argues that we should find that the conviction of violation of the Harrison Narcotic Act involves moral turpitude and, therefore, the nunc pro tunc exercise of section 212 (c) would cure respondent's present deportability. Whether or not a violation of the Harrison Narcotic Act involves moral turpitude need not be disposed of by us at this time because, even if it does, and even if section 212 (c) were exercised retroactively to obviate exclud ability because of the conviction or admission of a crime involving moral turpitude, deportability would still remain by virtue of conviction of a law relating to narcotics which is separate and apart from those parts of the immigration statutes relating to crimes involving moral turpitude. Section 212 (c), therefore, may not be exercised retroactively in this case.
We now turn to counsel's argument that the respondent is eligible for suspension of deportation under section 244 (a) (1) or (2). Section 244 (a) (1) requires that the respondent be physically present in the United States for a continuous period of not less than 7 years immediately preceding the date of his application for suspension. Section 244 (a) (2) requires physical presence in the United States for not less than 5 years immediately preceding respondent's application for suspension. Counsel has asserted that it was the congressional intent to continue the interpretations under section 19 (c) of the act of 1917 for 5 years after the enactment of the Immigration and Nationality Act. He asks us to find therefore that since the 1917 act required residence as distinguished from physical presence that we interpret the present act as covering the respondent's case. We will not belabor this point. Irrespective of any other argument advanced by counsel concerning the alleged applicability of subsections (a) (1) and (a) (2) of section 244, we rely on our earlier decisions in which we have held that physical presence means just what it says and that a person who has been out of the United States during the period he is required to establish physical presence cannot establish that required physical presence ( Matter of M----, supra, and Matter of Z---- A---- N----, supra). The special inquiry officer properly found that the respondent was not eligible under subsection (a) (5) of section 244 ( Matter of M----, supra), nor is he eligible for voluntary departure under section 244 (e) because he is deportable under section 241 (a) (11) of the Immigration and Nationality Act.
The case presents many equities in favor of this respondent. He has been in the United States for 43 of the 71 years of his life and has a lawfully resident alien spouse whom he is supporting. However, we are not at liberty to grant relief not authorized by Congress.
The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.