E-076976
Decided by the Board January 19, 1954
Deportability — Section 241 (a) of the Immigration and Nationality Act — Crime involving moral turpitude — Blackmail — Pardon, conditional, not effective under section 241 (b) of the Immigration and Nationality Act — Savings clause — Special inquiry officer, advice regarding discretionary relief.
(1) The language in section 241 (d) of the Immigration and Nationality Act is sufficiently broad to include not only new classes of deportable aliens, but also to eliminate preexisting bars to deportation ( United States ex rel., Marcello v. Ahrens, 113 F. Supp. 22 (E.D. La., 1953); United States ex rel., Barile v. Murff, 116 F. Supp. 163 (D.C. Md., 1953)). Hence an alien previously found not to be deportable under the Immigration Act of 1917, as amended, may now be deportable under the provisions of section 241 (a) of the Immigration and Nationality Act. There is no provision for a statute of limitations with respect to any deportation charge contained in the Immigration and Nationality Act.
(2) Since moral depravity inheres in the crime of blackmail, that crime involves moral turpitude.
(3) A conditional pardon by the Governor of any State, whether it contains a condition precedent or a condition subsequent, is ineffective to prevent deportation under section 241 (a) (4) of the Immigration and Nationality Act.
(4) The savings clause, section 405 (a) of the Immigration and Nationality Act, is limited by the phrase "unless otherwise specifically provided therein." Since Congress has specifically provided under section 241 (d) of the Immigration and Nationality Act for the deportation of aliens falling within the provisions of section 241 (a) of the act, regardless of when the basis of deportability arose, whatever immunity to deportation was had under the act of 1917, as amended, was lost upon the repeal of that statute.
(5) Under 8 C.F.R. 242.53 (c) advice as to discretionary relief is left to the sound judgment of the special inquiry officer and failure to give such advice where the alien was represented by counsel and had full opportunity to apply for discretionary relief is not reversible error.
CHARGES:
Warrant: Immigration and Nationality Act — Excludable by law existing at time of entry, to wit: A stowaway, under section 3 of the act of February 5, 1917.
Immigration and Nationality Act — Convicted after entry of two crimes involving moral turpitude, to wit: Blackmail, and blackmail.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer dated August 31, 1953, directing the respondent's deportation.
The respondent is a 52-year-old married male, a native and citizen of Italy, who testified that his only entry into the United States occurred at the port of New York about September 4 or 5, 1919, as a stowaway on the SS. La France. He admitted that at the time of his entry he was not inspected by an immigrant inspector. On January 15, 1936, he was convicted in the common pleas court, Cuyahoga County, Ohio, of the crime of blackmail committed on or about December 11, 1935, and was sentenced to imprisonment in the Ohio State Penitentiary for an indeterminate period and to pay the costs of prosecution. On April 25, 1936, he was again convicted in the court of common pleas, Lorain County, Ohio, of the crime of blackmail committed on or about October 15, 1935, and was again sentenced to imprisonment in the Ohio State Penitentiary and to pay the costs of prosecution, said sentence to begin at the expiration of the sentence which he was then serving. The respondent testified that he was sentenced to imprisonment for 1 to 5 years for each of said crimes and that he was released from imprisonment on February 1, 1941. The record contains a pardon dated July 30, 1945, signed by the Governor of Ohio granting a pardon for the crime of blackmail for which the respondent was convicted in Lorain County, Ohio, in April 1936. The pardon states that it was granted to the respondent "from this time forward, conditioned upon good behavior and conduct and provided that he demeans himself as a law-abiding person and is not convicted of any other crime, otherwise this pardon to become null and void."
It appears that deportation proceedings previously were instituted against the alien, predicated on the same two crimes which furnish the basis of the instant proceedings. By order of this Board dated October 9, 1945, the outstanding order of deportation previously entered on February 26, 1937, was withdrawn and the proceedings terminated upon the respondent's submission of the pardon referred to. The special inquiry officer has nevertheless found the respondent deportable in these proceedings under the Immigration and Nationality Act on the warrant charges and has ordered his deportation. Counsel has raised a number of objections to this order, which we shall now consider.
At the outset of the hearing, counsel urged that the hearing was illegal because it did not conform to the requirements of sections 5, 7, and 8 of the Administrative Procedure Act, and failed to comply with the requirements of due process of law. We have previously considered and rejected that argument, Matter of M----, A-2669541, B.I.A. June 1, 1953, Int. Dec. No. 442. Since the hearing in the instant case was conducted in accordance with section 242 (b) of the Immigration and Nationality Act which constitutes the sole and exclusive procedure for conducting deportation proceedings, it meets the requirements of due process, United States ex rel. Marcello v. Ahrens, 113 F. Supp. 22 (E.D., La. — 1953). See also Barber v. Yanish, 196 F. (2d) 53 (C.A. 9), cert. den., 344 U.S. 817. We therefore consider counsel's objection to the hearing procedure to be without merit.
Counsel further contends that since the respondent was not deportable under the Immigration Act of February 5, 1917, as amended, the proceedings under the Immigration and Nationality Act were illegal since as applied to the respondent, they were conducted under a law which constitutes ex post facto and retroactive legislation and is therefore unconstitutional. This argument involves a consideration of the position of the respondent under the respective acts in question.
The respondent was not amenable to deportation on the stowaway charge under the act of 1917, as amended, because the prior proceedings were not instituted within 5 years after entry, as expressly required by section 19 (a) of that act. He was not deportable under the 1917 act on the criminal charge because in accordance with the prevailing administrative interpretation, the pardon which he had received was construed as meeting the requirements of section 19 (a) of said act pertaining to pardoned aliens.
However, the provisions of the Immigration and Nationality Act under which the instant proceedings were brought are different from those of the act of 1917, as amended. Section 241 (a) (1) of the Immigration and Nationality Act provides for the deportation of any alien who "at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry". Stowaways were among the classes excludable at entry under section 3 of the act of February 5, 1917, as amended. The fact that respondent entered the United States as a stowaway in 1919 is immaterial, for section 241 (d) of the Immigration and Nationality Act expressly states:
Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all the aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this act.
In view of this language, and the fact that there is no provision for a statute of limitations with respect to any deportation charge contained in the Immigration and Nationality Act, it is apparent that the respondent now falls within the purview of section 241 (a) (1) of said act.
With respect to the criminal charge, reference to the statute will indicate that here, too, a change has been effected. Section 241 (a) (4) of the Immigration and Nationality Act renders deportable any alien "who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." Section 241 (d) of the Immigration and Nationality Act, previously referred to, makes this section applicable regardless of when the conviction occurred. Its language is sufficiently broad to include not only new classes of deportable aliens, but also to eliminate preexisting bars to deportation, United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22 (E.D. La., 1953); United States ex rel. Barile v. Murff, 116 F. Supp. 163 (D.C. Md., 1953). Since moral depravity inheres in the crime of blackmail that crime involves moral turpitude, Librarian v. State Bar, 239 P. (2) 865 (Calif. 1952). Unless, therefore, the respondent can claim the benefit of the pardon received in 1945, he falls within the scope of section 241 (a) (4).
Since a pardon is an act of grace and mercy, inherent in the pardoning power is the right to make the pardon absolute or conditional, United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). A conditional pardon is one to which a condition is annexed, the performance of which is necessary to the validity of the pardon, Fehl v. Martin, 155 Oregon 455, 64 P. (2d) 631 (1937). Conditional pardons may be those involving conditions precedent or conditions subsequent. If there is a condition precedent, such condition must be performed before the pardon can take effect. If the pardon contains a condition subsequent, such condition, if violated, causes the pardon to become null and void ( State ex rel. Gordon v. Zangerle, 136 Ohio State 371, 26 N.E. (2) 190 (1940); The Attorney General's Survey of Release Procedures, vol. 3, p. 205 (1939)). On the revocation of a pardon for a breach of one of its conditions, the legal status of the person pardoned must be regarded as being the same as it was before the pardon was granted ( State ex rel. Gordon v. Zangerle ( supra)).
It has been held that pardons granted by the governor of Ohio containing conditions similar to that in the instant case were valid pardons under the act of 1917, as amended, on the ground that such pardons, having been granted on conditions subsequent which might never occur, should be regarded as removing the ground of deportability resulting from the crimes. See Matter of B----, A-5224613 (B.I.A. March 27, 1946) and Matter of B----, 56083/976 (B.I.A. Nov. 1, 1946), referred to in Matter of B----, A-5829477, 3 IN Dec. 551 at pages 553 and 554.
Art. 3, sec. 11, of the Constitution of Ohio adopted in 1851 provides that the Governor "shall have power, after conviction, to grant reprieves, commutations and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by the law.
When the previous deportation proceedings against the respondent were terminated on October 9, 1945, that action was taken because section 19 (a) of the act of 1917, as amended, imposed no restriction on the type of pardon that would be sufficient to render an alien immune to deportation. Section 241 (b) of the Immigration and Nationality Act, on the other hand, provides as follows:
The provisions of subsection (a) (4) respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several states * * *. [Emphasis supplied.]
We interpret this section as constituting a change in the existing law. In construing a statute, Congress is presumed to mean what it says and in the absence of any ambiguity in the statute, it is to be construed according to its plain terms. United States Lines v. Shaughnessy, 101 F. Supp. 61, aff'd, 195 F. (2d) 385 (C.A. 2, 1952). It is also presumed that Congress was aware of the existing statutes, as well as the interpretations thereof; and that a change in the statutory language was intended to achieve a change in legislative result, Sutherland, Statutes and Statutory Construction, volume 2, section 450 (1943 edition). In restricting the benefits of section 241 (b) to aliens who have obtained full and unconditional pardons, Congress has unequivocally removed from the benefits of that section any pardon which does not meet those requirements. Whether a pardon contains a condition precedent or condition subsequent is no longer material. So long as the pardon is conditional, it does not come within the provisions of the section. It is our conclusion, therefore, that a conditional pardon such as that obtained by the respondent is ineffective to prevent deportation under section 241 (a) (4) of the Immigration and Nationality Act.
Having determined that the respondent falls within the scope of sections 241 (a) (1) and 241 (a) (4) of the Immigration and Nationality Act, we now turn to counsel's argument that an attempt to apply those sections to the respondent would be unconstitutional because he has obtained vested rights under the act of 1917, as amended. We find this argument to be without merit. It is well settled that a prior administrative determination is not res judicata in the technical sense, Pearson v. Williams, 202 U.S. 281 (1906). It is also established that Congress may enact legislation to render aliens deportable because of past conduct, United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950). Since deportation proceedings are not criminal in nature, the proscription against ex post facto laws does not apply, Harisiades v. Shaughnessy, 342 U.S. 580 (1951); Mahler v. Eby, 264 U.S. 32 (1924). We have examined the cases cited by the respondent's counsel and do not find them to be applicable to this proceeding. Whatever limitations may exist in other fields upon the enactment of retroactive legislation, no such prohibition exists with respect to deportation proceedings ( Harisiades v. Shaughnessy ( supra); United States ex rel. Marcello v. Ahrens ( supra)). As was stated by the court in Kaloudis v. Shaughnessy, 180 F. (2d) 489 (1950) at p. 490):
The interest which an alien has in continued residence in this country is protected only so far as Congress may choose to protect it; Congress may direct that all shall go back, or that some shall go back and some may stay; and it may distinguish between the two by such tests as it thinks appropriate.
If the respondent has any rights which are preserved, they must be preserved by Congressional mandate. Since the act of February 5, 1917, as amended, was repealed by section 403 (a) (13) of the Immigration and Nationality Act, only those matters are preserved which fall within the scope of section 405 (a) of the Immigration and Nationality Act. The pertinent portion of that section provides as follows:
Nothing contained in this act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this act shall take effect, but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this act are, unless otherwise specifically provided therein, hereby continued in force and effect. [Emphasis supplied.]
We note that the scope of the savings clause is limited by the emphasized phrase "unless otherwise specifically provided." Since Congress has specifically provided under section 241 (d) of the Immigration and Nationality Act for the deportation of aliens falling within the purview of sections 241 (a) (1) and 241 (a) (4) of the act, regardless of when the basis of deportability arose, whatever immunity to deportation the respondent had under the act of 1917 was lost upon the repeal of that statute. The conclusion reached herein is amply supported by judicial and administrative decisions in similar situations. Thus, it has been held that the Immigration and Nationality Act is effective to create new classes of deportable aliens, Matter of M---- ( supra); United States ex rel. Marcello v. Ahrens ( supra); United States ex rel. Barile v. Murff ( supra). It has also been held that the Immigration and Nationality Act has effectively removed bars to deportation existing under the act of February 5, 1917, as amended, where such bars were based upon a statute of limitations ( Matter of I----, E-25308, B.I.A. July 21, 1953, Int. Dec. No. 469); or upon a timely recommendation against deportation (ibid); or upon a legislative pardon ( Matter of R----, E-080924, B.I.A. January 14, 1954, Int. Dec. No. 518). We therefore conclude that the special inquiry officer properly found the respondent deportable on the warrant charges.
In the notice of appeal filed by counsel one of the grounds of error specified is that the special inquiry officer failed to inquire of the respondent whether he wished to apply for discretionary relief. Although this issue was not specifically raised upon the oral argument, counsel did state that the alien has completely reformed, and he therefore requested that the case be remanded to the field to conduct an appropriate investigation. Under 8 C.F.R. 242.53 (c), advice as to discretionary relief is left to the sound judgment of the special inquiry officer. We do not consider the failure to give such advice as constituting reversible error, where as here, the alien was represented by counsel at the hearing and had a full opportunity to apply for discretionary relief at that time. Since no application for suspension of deportation or any other discretionary relief was submitted at the hearing, the relief issue is not properly before us. Matter of M----, E-086054, B.I.A. October 9, 1953, Int. Dec. No. 486. To remand the case for investigation would, therefore, serve no purpose.
Since we find no error in the order of the special inquiry officer directing deportation, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same hereby is dismissed.