Opinion
No. 254, Docket 20965.
May 3, 1948.
Appeal from the District Court of the United States for the Southern District of New York.
Habeas corpus proceeding by the United States, on the relation of Richard Eichenlaub, against W. Frank Watkins, as District Director of Immigration and Naturalization, etc. From an order dismissing the writ, the relator appeals.
Affirmed.
Eichenlaub, the relator, entered the United States in 1930 and was naturalized in 1936. In 1941, he was convicted of the crime of having conspired to act as an agent for a foreign government without having registered. The indictment referred to 22 U.S.C.A. § 233. By the Act of March 28, 1940, § 233 had been amended so as to increase the penalty; it now appears as 22 U.S.C.A. § 601. The Act of May 10, 1920, provides in part: "* * * That aliens of the following classes, in addition to those for whose expulsion from the United States provision is made in the existing law, shall, upon the warrant of the Secretary of Labor, be taken into his custody and deported in the manner provided in sections 19 and 20 of the Act of February 5, 1917, entitled `An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States,' if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States, to wit: * * * (2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely: (a) An Act entitled `An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,' approved June 15, 1917, or the amendment thereof approved May 16, 1918; * * *." On January 25, 1944, in denaturalization proceedings in the district court for the Southern District of New York, a decree was entered which cancelled relator's certificate of naturalization. Subsequently, administrative deportation proceedings were begun against him. He was arrested and given an administrative hearing. In those proceedings, a finding was made that he "is an undesirable resident of the United States." On October 9, 1945, a warrant of deportation was issued which stated in part the following: "Whereas, after due hearing * * * an order has been duly made that the alein Richard Eichenlaub * * * is subject to deportation under the following provisions of the laws of the United States, to wit: The Act approved May 10, 1920, in that he has been found to be a member of the undesirable classes of alien residents enumerated in said Act, to wit, an alien who since August 1, 1914 has been convicted of conspiracy (18 U.S.C.A. § 88) to violate an Act entitled `An Act to punish acts of interference with the foreign relations * * *' approved June 15, 1917 (22 U.S.C.A. § 233)." Relator brought habeas corpus proceedings. From an order dismissing the writ he appeals.
54 Stat. 80.
41 Stat. 593, 594. Under the authority of 1940 Reorg. Plan No. V, 54 Stat. 1238, "Attorney General" is substituted for "Secretary of Labor." The Act is codified in 8 U.S.C.A. § 157; the words of the statute are, of course, controlling.
Harold K. McKee, of New York City, for appellant.
John F.X. McGohey, U.S. Atty. for Southern Dist. of New York, of New York City (John F. Ryan, of New York City, of counsel), for appellee.
Before SWAN, CLARK and FRANK, Circuit Judges.
Relator contends that 22 U.S.C.A. § 233 was repealed and that therefore he was not convicted of any crime enumerated in 8 U.S.C.A. § 157. We cannot agree; the 1940 Act did not repeal but merely increased the penalty prescribed in 22 U.S.C.A. § 233. Nor do we agree with his contention that 8 U.S.C.A. § 157 does not include one who was a citizen when convicted but who is subsequently denaturalized. We think the decree of denaturalization relates back, at least for this purpose. Cf. Rosenberg v. United States, 3 Cir., 60 F.2d 475.
If he means to contend that the indictment was insufficient, the contention is frivolous. As the court in the criminal suit had jurisdiction of both his person and the subject matter, he cannot in a habeas corpus proceedings, attack the conviction.
He also urges that the deportation warrant is defective, as not in accord with 8 U.S.C.A. § 157, since it states that he is "a member of the undesirable classes of alien residents enumerated in said Act" and does not state that he, as an individual, has been found to be an "undesirable resident." He cites Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. But there the Court said (page 43 of 264 U.S., page 287 of 44 S.Ct.) that the defect in the warrants had not been met by other matter in the record. Here we have an explicit finding in the administrative proceedings that relator "is an undesirable resident." It would serve no useful purpose to remand to permit amendment of the warrant to conform to that finding.
Affirmed.