A-4888223
Decided by the Board August 3, 1953
Evidence — Alienage — Manifest-Sentence, Ill. — Crime involving moral turpitude — Assault with intent to murder, Illinois — Entry.
(1) Admissions as to alienage made when seeking citizenship are voluntary admissions and are admissible into evidence in deportation proceedings even through respondent was not warned that such statements might be used against him. Furthermore, the special inquiry officer may enter of record any statement, oral or written, previously made by the respondent or any other person during any investigation, examination or hearing if it is material and relevant to any issue in the case.
(2) The fact that a manifest may have been typed by a person, not available for cross-examination, other than the person who swore to the correctness of the information contained therein, does not affect its admissibility in evidence nor its substantive and probative value.
(3) A sentence to the Illinois State Reformatory in Pontiac, Ill., is a sentence to imprisonment under the immigration laws.
(4) The crime of felonious assault with intent to murder in Illinois is a crime involving moral turpitude ( People v. Bashic, 306 Ill. 341, 137 N.E. 809; People v. Parker, 264 Ill. 36, 105 N.E. 740).
(5) Deportation charges may be based on the first entry, the last entry, or any combination of entries since judicial interpretation of the 1917 act and specific definition under the Immigration and Nationality Act both provide that any coming constitutes an entry.
CHARGES:
Warrant: Act of 1917 — Convicted of crime prior to entry — Assault to murder.
Lodged: Act of 1952 — Two convictions after entry — Assault to murder; conspiracy etc., in violation of section 420a (a), (b), (d), Title 18 U.S.C.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer ordering respondent's deportation on the grounds stated above. The special inquiry officer has found that the evidence of record establishes that the respondent was born August 24, 1898, in Italy; that he was an alien at birth; that his status never changed; and that the respondent entered the United States for permanent residence on January 26, 1902. The special inquiry officer further found that in both 1916 and 1942, respondent was convicted of a crime involving moral turpitude; and that in 1929, he left the United States for less than a day and made a new entry upon his return.
The special inquiry officer concluded that the respondent was deportable as one who, prior to his entry in 1929, had been convicted of a crime involving moral turpitude and that he was also deportable as one who, subsequent to his entry in 1902, had been on two separate occasions convicted of crimes involving moral turpitude.
Without deeming it necessary to repeat the evidence which has been fully discussed by the special inquiry officer, we find, after careful consideration of the record and counsel's representations, that the special inquiry officer's conclusions of fact and law are supported by reasonable, substantial and probative evidence.
We will now consider counsel's contentions.
ALIENAGE
Respondent's birth in Italy and the continuance of his status as an alien is established by admissions made by him under oath at different intervals during the years 1940 to 1942. Issue is taken to the receipt into evidence of certain of these exhibits containing admissions as to alienage on the ground that at the time of making these admissions, respondent was not warned that such statements could be used against him.
It is well settled that the failure to give warning does not preclude the use of admissions ( Matter of B---- R----, A-4690755, ( 4 IN Dec. 760)). One of the exhibits complained of was made in compliance with the requirements of law that an alien register and that an alien enemy obtain a certificate of identification. We have previously ruled that admissions made under such circumstances are admissible in deportation proceedings ( Matter of F----, A-3421286, ( 4 IN Dec. 475)). Admissions made in the other documents in question were made by the respondent at a time he was seeking the privilege of citizenship from the Government. It is clear they were voluntarily made. In fact, exhibit 14, one of the documents (an affidavit), contains the statement that it is the free and voluntary act of the respondent made in order to induce the Government to admit him to citizenship and that it could be used by the Government in any manner desired.
The admissions were not made in the course of an investigation where it was desired to obtain information as evidence in support of an application for a warrant of arrest; the regulations cited by counsel (8 C.F.R. 242.11) are therefore clearly inapplicable. Furthermore, attention is invited to 8 C.F.R. 242.54 (b) which provides that the special inquiry officer may enter of record any statement, oral or written, previously made by the respondent or any other person during any investigation, examination, or hearing, if it is material and relevant to any issue in the case.
Counsel contends that the Government failed to carry the burden of establishing respondent's alienage. The burden of establishing alienage is upon the Government. Alienage was established by admissions of the respondent made under oath on different occasions between 1940 and 1942. At the hearing, he made no attempt to explain those admissions and he did not claim United States citizenship. The situation is similar to that in United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, where the court held that the Government had borne its burden of proof. (See also, Riley v. Howes, 24 F. (2d) 686.)
The Service introduced a certification as to the nonexistence of a naturalization record relating to J----, or G---- C----, the respondent's father. Whether or not this action was a necessity in sustaining its burden of proof under the circumstances of this case, we need not discuss. It has been submitted and is part of the evidence of record. Counsel objects to the certification as being incomplete since it purports to be a certification concerning J----, or G---- C----, and there are alleged to be as many as 30 variations of the spelling of the family name. Counsel points out that the respondent, in 1916, used the spelling C----. There is no showing that respondent's father used such spelling and during the hearing no request made made that any particular spelling be searched. Moreover, we take administrative notice of the fact that the Service makes use of the "Russell-Soundex" system installed by Remington-Rand, Inc., in indexing naturalization records. This system eliminate the use of all vowels in indexing a name such as C----. In searching for records relating to C----, all names starting with the letter C, followed by an R, followed by any of the following, C, G, J, K, Q, S, X, Z, followed by an L, would be searched. The fact that any of the above consonants were doubled, or the existence of vowels in any combination would be immaterial. We are satisfied that a thorough search has been made to determine whether there was any record of naturalization on file which could possibly relate to the respondent's father, and that none has been found.
ENTRIES
Entry of the respondent in 1902 is based upon admissions made by him under oath. The service attempted to verify this entry, but could find no record.
Entry in 1929 is established by manifest records (Government Forms 628B and 630B) of the flights on which the Government contends the respondent departed from and reentered the United States and also by the testimony of the pilot of the plane on which the flights were made. Counsel urges that the admission of the manifests was improper since the evidence showed that they were typed either by the pilot of the plane or by some other person at his direction and that other person was not made available for cross-examination.
The manifests and information contained thereon were required by law from the masters of the vessels carrying aliens. It may thus be seen that these manifests were made in the regular course of business. The furnishing of the forms and information was required by law from the pilot. The correctness of the information was sworn to by him at the time he submitted it to the Government. We believe that even in a judicial proceeding, it would qualify as a business entry under 28 U.S.C. 1732, and the lack of personal knowledge by the entrant or maker would be shown to affect the weight of the documents but would not affect its admissibility ( United States v. Rosenberg, 195 F. (2d) 583 (C.A. 2, 1952). Moreover, in administrative proceedings, the question is not as to the admissibility of evidence, but as to its probative value ( Matter of O---- O----, A-2826150, ( 4 IN Dec. 765)). Logic and common sense require that they be considered as substantial and probative.
Rule 2, Manifests Subdivision C, Immigration Laws and Rules of March 1, 1929, United States Department of Labor, Bureau of Immigration, Washington Government Printing Office, 1927. Pertinent portions follow:
PAR. 5. The master or commanding officer, * * * of * * * vessels plying between the United States and foreign ports * * *, having passengers on board destined to or departing from the United States, * * * shall at their own expense furnish the forms referred to in paragraphs 1, 2, 3, and 4, hereof, according to the specifications therein set out, and any failure, neglect, or omission to comply with the requirements of said paragraphs shall be deemed a violation of sections 12 and 14 of the act of February 5, 1917, and punishable as therein provided.
PAR. 2. The information required by said section 12 of the act of February 5, 1917, in relation to arriving United States citizens shall be * * * (supplied according to the requirements of) forms * * * 630b * * *
PAR. 3. The list required by said section 12 of the act of February 5, 1917, to be filed with the immigration officials before the departure of a vessel and containing information regarding alien passengers and citizens of the United States * * * (shall be supplied in accordance with the requirements of) forms * * * 628b * * *
Counsel attempts to attack the effect of the manifests by charging that the N---- C----, listed therein may have been a person other than the respondent. The pilot of the plane identified the respondent as identical with the person who traveled on the plane under the name of N---- C----. Furthermore, there is a presumption that identity of a name is identity of person ( Stebbins v. Duncan, 108 U.S. 32). Finally, the respondent, who knew whether or not he was the person in question, failed to deny that he was the person. The existence of these records, and the testimony of the pilot who made or caused the records to be made, the failure to testify, conclusively establish in our minds the making of the departure and reentry in 1929.
Counsel contends in effect that what might be an entry under some circumstances, is not to be regarded as such if it will subject a legally resident alien to deportation because of a crime committed sometime prior to the entry in question. The cases of Wilson v. Carr, 41 F. (2d) 704, (C.C.A. 9, 1930) and United States ex rel Valenti v. Karnuth, 1 F. Supp. 370 (D.C.N.Y. 1932) are cited in support of this contention. The Valenti case involved a return to the United States under circumstances which the court found made the reentry involuntary. There is no suggestion that reentry in the instant case was involuntary. The Wilson case was considered in United States v. Smith, 62 F. (2d) 808 (C.C.A. 7, 1933), as one of the cases opposed to the reasoning and results reached in a series of other cases. The court found the Wilson case faulty. Its conclusion was subsequently upheld by the Supreme Court of the United States in United States ex rel. Volpe v. Smith, 289 U.S. 422. (The Wilson case was then also one of the cases cited by counsel for the alien.)
CONVICTIONS OF CRIME
On September 14, 1916, respondent was convicted in Cook County, Ill., for the crime of assault with intent to murder. He was sentenced to the Illinois State Reformatory at Pontiac for an indeterminate period of years. It appears he was 17 at time of commission of the crime and 18 at time of sentence.
On April 7, 1942, he was convicted in the United States District Court for the Southern District of New York for the crime of conspiracy to interfere with trade and commerce by violence, threats and coercion in violation of 18 U.S.C. 420 (a) (b) (d). He was sentenced to imprisonment for 8 years and fined $10,000.
Counsel contends that the conviction in 1916 was not conviction for a crime but an act of juvenile delinquency and that the resulting sentence to the Illinois State Reformatory at Pontiac, Ill., was not a sentence to imprisonment within the meaning of the law relating to deportation.
There is no indication in the record that the court considered the respondent as a juvenile delinquent. In fact, the court made the finding that the respondent was then 20 years of age. It seems clear that the court considered the respondent as responsible for his actions as an adult. Furthermore, at the time of respondent's admission and conviction, a "delinquent child" was defined as any male child who, while under the age of 17 years, violates any law of the state (Illinois Rev. Stat., ch. 38, sec. 591). Special juvenile courts were provided to hear cases involving delinquent children. There is no indication that respondent's case was so heard.
Respondent's sentence to a reformatory seems to have been in accordance with the provisions of section 803 of chapter 38, Illinois Revised Statutes (1916), which provided for sentence to a penitentiary of every person over the age of 10 guilty of crime with the exception of certain classes of persons who were to be confined to a reformatory. Among these classes were persons between the ages of 16 and 26.
The charge based on the 1917 act does not require the sentence or imprisonment of an alien (sec. 3, act of February 5, 1917, 8 U.S.C. 136). It merely requires conviction. However, it may be pointed out that it is now settled that a sentence to the Illinois State Reformatory in Pontiac, Ill., is a sentence to imprisonment under the immigration laws ( United States ex rel. McMahon v. Neelly, 186 F. (2d) 846 (C.A. 7, 1951)).
The respondent's conviction in 1916 on a plea of guilty was for felonious assault with intent to murder. The crime requires an evil intent and depraved motive and lack of considerable provocation. It is clear that the crime involves moral turpitude ( People v. Bashic, 306 Ill. 341, 137 N.E. 809; People v. Parker, 264 Ill. 36, 105 N.E. 740).
Counsel contends that the charge based on the 1917 Act is barred under a five year statute of limitations. He cites no specific section of law or authority for this contention. We know of no statute of limitations applicable to the charge. The contention is clearly without merit. Counsel urges that it was not the intent of Congress to make an alien deportable for a crime committed in 1916 before the effective date of the 1917 Act. He points out also that at the time of the alien's conviction in 1916, there was no law in existence which could have permitted the judge to make a recommendation that the conviction should not result in deportation. We shall not argue the meaning of the words of the 1917 Act. That must be taken to be established. It is settled that the deportation of an alien may be ordered regardless of the date of entry or the commission of the crime ( Lauria v. United States, 271 Fed. 261 (C.C.A. 2, 1921), certiorari denied, 257 U.S. 635).
Pertinent statutes relating to respondent's conviction in 1942 follow:
420a. Interference with trade and commerce by violence, threats, etc.; penalties. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce —
(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable consideration, or the purchase or rental of property or protective services, not including, however, the payment of wages by a bona fide employer to a bona fide employee; or
(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right; or
(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate subsections (a) or (b); or
(d) Conspires or acts concertedly with any other person or persons to commit any of the foregoing acts, shall, upon conviction thereof, be guilty of a felony and shall be punished by imprisonment from 1 to 10 years or by a fine of $10,000, or both. (June 18, 1934, ch. 569, sec. 2, 48 Stat. 979.)
420b. Same; definitions.
(a) As used in section 420a of this title the term "wrongful" means in violation of the criminal laws of the United States or of any State or Territory.
(b) The terms "property," "money," or "valuable considerations" used in section 420a of this title shall not be deemed to include wages paid by a bona fide employer to a bona fide employee.
(c) The term "trade or commerce," as used in section 420a of this title, is defined to mean trade or commerce between any States, with foreign nations, in the District of Columbia, in any Territory of the United States, between any such Territory or the District of Columbia and any State or other Territory, and all other trade or commerce over which the United States has constitutional jurisdiction. (June 18, 1934, ch. 569, secs. 1, 3, 48 Stat. 979, 980.)
* * * * * * *
420d. Same; jurisdiction of offenses. Any person charged with violating section 420a of this title may be prosecuted in any district in which any part of the offense has been committed by him or by his actual associates participating with him in the offense or by his fellow conspirators: Provided, That no court of the United States shall construe or apply any of the provisions of sections 420a to 420e of this title in such manner as to impair, diminish, or in any manner affect the rights of bona fide labor organizations in lawfully carrying out the legitimate objects thereof, as such rights are expressed in existing statutes of the United States (June 18, 1934, ch. 569, sec. 6, 48 Stat. 980).
* * * * * * *
Respondent was convicted under the law as it existed prior to its change by the codification of Title 18 which became effective on September 1, 1948 ( 18 U.S.C.A., 1951 edition). Concerning the law on which respondent's conviction was based, the Supreme Court of the United States stated that its study of the legislative history relating to the law revealed that the section was intended to eliminate terroristic activities by professional gangsters and that no interference with traditional labor union activity was intended ( United States v. Local 807, 315 U.S. 521, 530). The crime defined by the act was characterized as in the nature of extortion ( Nick v. United States, 122 F. (2d) 660 (C.C.A. 8, 1941) certiorari denied 314 U.S. 687). A conspiracy to extort money under this act was termed by one court as a crime which "struck at the heart of civilized society"; ( United States v. Compagna, 146 F. (2d) 524 (C.C.A. 2, 1944) certiorari denied 324 U.S. 867). In essence, the crimes described are those of robbery or extortion. The unlawful taking of the property of another by force or threats is a crime so vile that it unquestionably involves moral turpitude. (See United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931); United States ex rel. Paladino v. Commissioner, 43 F. (2d) 821 (C.C.A. 2, 1930); United States ex rel. Cerami v. Uhl, 78 F. (2d) 698 (C.C.A. 2, 1935); Matter of G---- R----, A-4569802 ( 2 IN Dec. 733); Matter of C----, A-6362465, ( 2 IN Dec. 716); Matter of F----, A-9726926, 3 IN Dec. 361; Matter of G---- T----, A-7427678, 4 IN Dec. 446.
The lodged charge is based on section 241 (a) (4) of the Immigration and Nationality Act. It provides in essence that an alien is subject to deportation who after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
Counsel argues that it was not the intent of Congress to make a minor deportable for crimes committed before the effective date of that act because the Immigration and Nationality Act contains a clause that aliens who have committed only one crime involving moral turpitude while under the age of 18 may be granted a visa and admitted to the United States under certain conditions. Since the respondent is guilty of having committed two crimes involving moral turpitude, we fail to see what possible bearing counsel's contention has to the instant proceeding.
In sustaining the lodged charge, namely, that the respondent was convicted of two crimes involving moral turpitude subsequent to entry, the Service has chosen to find without effect the intervening entry in 1929. We see no error in this. Judicial interpretation of the 1917 act and specific definition under the Immigration and Nationality Act both provide that any coming constitutes an entry. It would seem therefore that the Service is free to base charges of deportation upon the first entry, the last entry or any combination of entries. ( United States ex rel. Volpe v. Smith ( supra); sec. 101 (a) (13), Immigration and Nationality Act; Matter of C----, A-5487776, 4 IN Dec. 596.)
It appears that counsel contends that an alien should not be deportable under the Immigration and Nationality Act for crimes which were committed prior to that act. Section 241 (d) of the Immigration and Nationality Act provides that unless otherwise specifically provided, the deportation provisions of this act shall be applicable to all aliens belonging to any of the classes enumerated in subsection 241 (a) (the alien is in this class) notwithstanding that they entered the United States prior to the date of enactment of the Immigration and Nationality Act or that the facts by reason of which any alien belongs to any of the deportable classes occurred prior to the date of the enactment of the act.
WARRANT OF ARREST
Counsel contends that the warrant of arrest is a nullity because the evidence to support it is not probative; the alien made no entry in 1929; and the Government failed to specify that it would proceed on the theory that the alien was deportable on two separate grounds concerning two separate entries; and because the warrant of arrest fails to apprise respondent of the charges against him. Since the warrant of arrest was a nullity, he contends that the charge based on the 1917 act was not saved by the savings clause of the Immigration and Nationality Act which repealed the 1917 act.
We believe the language of the warrant of arrest was sufficient to notify the respondent concerning the nature of the charge based on the 1917 act. Furthermore, 5 days after the service upon him of the warrant of arrest, he was served with a notice of hearing which clearly advised him of the nature of the Government's claim that he was deportable under the Immigration Act of 1917. Even if this were not so, it is well established that the charge contained in the warrant of arrest is not necessarily binding and may be enlarged or modified to conform with facts developed in the course of the deportation proceeding without rendering such warrant of arrest a nullity ( Guiney v. Bonham, 261 Fed. 582 (C.C.A. 9, 1919); Catalano v. Shaughnessy, 197 F. (2d) 65 (C.A. 2, 1952).
The fact that an additional charge was lodged at the hearing should not affect the warrant of arrest because its function is to produce respondent for hearing ( Boric v. Marshall, 4 F. Supp. 965 (Pa. 1933), appeal dismissed 67 F. (2d) 1020 (C.C.A. 3, 1933), 290 U.S. 709; Gonzales v. Zurbrick, 45 F. (2d) 934 (C.C.A. 6, 1930); Doukas v. Wiley, 160 F. (2d) 92 (C.C.A. 7, 1947); Sormunen v. Nagle, 59 F. (2d) 398 (C.C.A. 9, 1932).
The contention that the alien was not permitted to inspect the warrant of arrest and evidence on which it is based is completely without merit. We know of no authority which would permit such an inspection.
To show the invalidity of the warrant of arrest counsel cites the case of Browne v. Zurbrick, 45 F. (2d) 931 (C.C.A. 6, 1930), which involved a warrant charging an alien with having admitted or been convicted of crime in the alternative. The case clearly is not in point for the charge in the instant warrant of arrest was specific and definite. The fact that an additional charge was later lodged on an additional ground did not deprive it of its definiteness.
It is clear to us therefore that counsel's contention that this proceeding was not saved under the savings clause of the Immigration and Nationality Act because it was a nullity is without merit.
The contentions as to the unconstitutionality of the Immigration and Nationality Act will not be discussed since we are without jurisdiction to entertain such matters.
On advice of counsel, the alien refused to testify on the matters in issue. No claim of the privilege againt self-incrimination was made. Counsel contends that in a deportation proceeding, an alien cannot be called upon to testify unless he desires to present a defense. The case of Ex parte Radivoeff, 278 Fed. 227 is cited in support of the contention. We believe counsel is clearly in error in this contention. Judicial and administrative decisions have settled that there is a duty upon an alien in deportation proceedings to testify when called upon by the Service and unless he makes the claim to the privilege against self-incrimination and such claim is justified, it may be inferred that if he had testified, he would have testified adversely to himself ( Bilokumsky v. Tod, 263 U.S. 149; Vajtauer v. Commissioner, 273 U.S. 103; Matter of K----, A5204481, Mar. 18, 1953, Int. Dec. No. 427; Matter of D----, A-5390614, 4 IN Dec. 578.) This legal concept is carried out in the Immigration and Nationality Act which requires the special inquiry officer to interrogate, examine, and cross-examine the alien or the witnesses (sec. 242 (b)). An alien cannot defeat the deportation process by absenting himself and it does not appear that he should have that power by attending and refusing to testify. In the Radivoeff case the alien was charged as being deportable as one who advocated and taught the unlawful destruction of property. The court stated, "In addition to the unsupported warrant, the alien a witness against himself, quasi secret rather than open and public hearings, which it is not determined of themselves alone would be fatal to fairness, there is flagrant disregard of the department's rules and of the general law of evidence and procedure." [Emphasis added.] Whether the court's reference to the fact that he was a witness against himself was occasioned by the possibility that he may have been criminally liable or not, we do not know. However, it is clear that the case is no authority for the proposition that an alien may refuse to testify at a deportation proceeding.
The contention is raised that the Service is estopped from deporting respondent by its conduct since it had knowledge of his convictions since at least April 1941 when he executed a petition for naturalization. It is well settled that the doctrine of estoppel does not apply to administrative proceedings ( Wallace Corp. v. National Labor Relations Board, 323 U.S. 248). The contentions are without merit. The evidence of record is reasonable, substantial and probative. The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.