A-2096839
Decided by Board February 16, 1951
Foreign Agents Registration Act of June 8, 1938, as amended August 7, 1939 — Conviction thereunder (1943) — Deportability under the above act, as further amended on April 29, 1942 — Suspension of deportation — Discretion.
(1) Although the Foreign Agents Registration Act of June 8, 1938, as amended by the Act of August 7, 1939 did not contain a provision for deportation of an alien convicted thereunder, an alien so convicted is subject to deportation under the provisions of the Act of April 29, 1942 which further amended the above Act of June 8, 1938, as amended by the Act of August 7, 1939.
(2) Though an alien establish that he meets the eligibility requirements set forth in Sec. 19 (c) of the Immigration Act of February 5, 1917, as amended, he may yet be found undeserving of suspension of deportation as a matter of discretion.
CHARGE:
Warrant: Act of 1938, as amended — Convicted of violation of and conspiracy to violate Foreign Agents Registration Act of 1938.
BEFORE THE BOARD
Discussion: This case was argued before us by counsel on January 19, 1950. Because of the decision of the Supreme Court in Sung v. McGrath, 339 U.S. 33, 94 L. Ed. 616, 70 S. Ct. 445 (1950), we ordered that the record be reopened for rehearings conducted in accordance with the provisions of that act. The earlier hearings were stipulated into the record. The hearing examiner found respondent to be deportable and concluded that he is ineligible for suspension of deportation. The Assistant Commissioner found respondent to be eligible for suspension, but denied relief because of his conviction in 1943 for a crime as discussed hereafter. The record is again before us on appeal.
Respondent is a native and citizen of Germany, age 40. He first entered the United States in 1929 as a quota immigrant. He has resided in the United States at all times since 1929 except for two 4-month periods when he left the United States to visit his family, once in Mexico in 1931 and once in Germany in 1937.
Respondent married a United States citizen in California on May 11, 1941. A United States citizen child was born to respondent and his wife on April 12, 1942. Respondent is at present separated from his wife, having obtained an interlocutory decree of divorce against her on September 23, 1946. The child was awarded to the custody of respondent's wife. He pays her $25 per month for support of the child.
On December 8, 1941, respondent was taken into custody and interned as an alien enemy. On October 5, 1943, while in internment, he was indicted by a Federal grand jury for conspiracy to violate the Notification Act of 1917, 40 Stat. 226, and for conspiracy to violate the Foreign Agents Registration Act of June 8, 1938, as amended, and to defraud the United States under the Federal conspiracy statute (18 U.S.C. sec. 88; 22 U.S.C. sec. 601; 22 U.S.C. sec. 611-616). This indictment contained two counts. The court dismissed the conspiracy alleged under count I, and respondent was found guilty by a jury, after a plea of not guilty, of the conspiracy alleged under count II. Count II alleged a conspiracy to violate and the violation of the Foreign Agents Registration Act of June 8, 1938, 52 Stat. 631, 22 U.S.C.A. 612, as amended by the act of August 7, 1939 ( 53 Stat. 1244), and rules and regulations promulgated thereunder, and to defraud the United States in violation of title 18 U.S.C., section 88. Respondent served a prison sentence in the Federal Correctional Institution at Milan, Mich., from June 2, 1944, until January 26, 1946. Upon release from that institution, he was again interned as an alien enemy. He was unconditionally released in alien enemy proceedings on June 5, 1946. The Alien Enemy Repatriation Hearing Board determined that respondent should not be removed from the United States as an "undesirable alien."
The Assistant Commissioner has found that respondent is a person of good moral character. He has found that deportation of respondent would not result in serious economic detriment to respondent's United States citizen child for the reason that respondent is paying only $25 a month for the support of the child. We agree with the finding that respondent is a person of good moral character. We do not make any finding as to whether or not his deportation would result in a serious economic detriment to his child. It is not necessary for the purpose of this proceeding for us to make any finding on this issue.
The Foreign Agents Registration Act of June 8, 1938, as amended by the act of August 7, 1939, did not contain a provision for deportation of any alien convicted thereunder. On April 29, 1942, Congress amended this act generally, expanding its application, increasing its penalties and providing for deportation of any alien as follows ( 22 U.S.C. 618 (c), 56 Stat. 257):
(c) Any alien who shall be convicted of a violation of, or a conspiracy to violate, any provision of this act or any regulation thereunder shall be subject to deportation in the manner provided by sections 19 and 20 of the Immigration Act of 1917 (secs. 155 and 156 of title 8).
Counsel pleads that respondent was convicted under the act of 1938, as amended in 1939. This act contained no deportation provisions, and it is the principal argument of counsel that the deportation provision added by the amendment of 1942 should have no application to respondent. He contends that to hold that it has such an application would be giving the amendment an ex post facto application. Respondent and his associates were prosecuted in 1943 under the 1938 act, as amended in 1939, instead of being prosecuted under the act as amended in 1942. The reason for this was because as to them the increased criminal penalties in the 1942 act would have been ex post facto. It is our opinion that the application of the deportation penalty is not so restricted. It has long been established that Congress may enact a statute providing for the deportation of aliens for past misconduct. The courts have held that despite the fact than an immigration law may be retrospective in its application to an alien, deportation is not such a punishment or penalty as to bring it within the ex post facto inhibition. The most recent exposition of this subject is contained in Harisiades v. Shaughnessy, 90 F. Supp. 397, 424, recently sustained by the Second Circuit Court of Appeals, as follows:
An ex post facto law is one that makes an act committed before its passage criminal, although at the time the act was committed it was not criminal. Ex post facto laws are specifically forbidden by article I, section 9, of the United States Constitution. But a deportation proceeding is not a criminal proceeding. The retrospective features of a deportation statute do not fall under the ban of the ex post facto section of the Constitution, ( Johannessen v. United States, 225 U.S. 227, 32 S. Ct. 613, 56 L. Ed. 1066; Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101; Bugajewits v. Adams, 228 U.S. 585, 33 S. Ct. 607, 57 L. Ed. 978; Mahler v. Eby, 264 U.S. 32, 44 S. Ct. 283, 68 L. Ed. 549).
Counsel quotes from the substantially different Vierack v. United States, 318 U.S. 236, 87 L. Ed. 734, 63 S. Ct. 561. The Supreme Court held that Congress could not legislate after the crime had been committed to make Viereck's crime greater than it was under the law as it existed at the time of the crime. The distinction between that case and the present one is that Viereck's acts did not constitute a crime under the 1938-39 act but did constitute a crime under the act as amended in 1942. Respondent's acts constitute a crime under both the 1938-39 act and under the act as amended in 1942. The Supreme Court held that since Viereck's acts did not constitute a crime under the earlier statute, the later statute could not be used by the Governmen to show that Congress had intended that Viereck should be covered by the 1938 act. As to respondent in the present case, the 1942 amendment is not used by the Government to enlarge the charges against him, or to extend the "penalties" inflicted upon him, but it does impose the additional "enforcement provision" of deportation.
Since Congress may enact a statute to deport an alien for past misconduct, the only question remaining is whether or not in this case Congress has done so. The deportation provision passed in 1942 declares that any alien convicted of a violation of any provision of "this act" shall be subject to deportation. A year later respondent was convicted. It is counsel's contention that "this act" refers only to the provisions passed by Congress in 1942. The amended statute passed in 1942 reads ( 56 Stat. 248, P.L. 532, April 29, 1942):
An act to amend the act entitled "An act to require the registration of certain persons employed by agencies to disseminate propaganda in the United States, and for other purposes," approved June 8, 1938, as amended.
Be it enacted * * * that the act of June 8, 1938 ( 52 Stat. 631, U.S.C., Title 22, sec. 233 (a) to 233 (g) * * * as amended, is hereby amended to read as follows: Policy and Purpose.
The 1942 amendment provided: "This act may be cited as the Foreign Agents Registration Act of 1938, as amended."
So far as the legislative history gives any light whatever as to the intention of Congress, it indicates that the author of this statute intended the 1942 changes to constitute an amendment to the 1938 act, as amended in 1939. Representative McCormack stated (88 Cong., Rec., January 28, 1942, p. 802):
The present bill strengthens the McCormack Act. I was experimenting at that time, and, naturally, when you are experimenting you cannot go as far as you can after you have had experience, and in the light of the experience gained from the administration of the McCormack Act, these amendments are necessary to strengthen the act for the best interests of our people. [Emphasis supplied.]
In the recent case of Eichenlaub v. Shaughnessy et al., 38 U.S. 521, 70 S. Ct. 329, 94 L. Ed. 307 (January 17, 1950), the opinion of the majority said, "There is no question as to the power of Congress to enact a statute to deport aliens because of past misconduct (citing cases)." The Supreme Court said further:
We have given consideration to such other points as were raised by the relators, but we find that they do not affect the result (footnote). Among these is the claim in the Eichenlaub case that the act of 1920 does not apply to his conviction under the Espionage Act of 1917, because, in substance, the penalty for its violation had been increased in 1940. This contention is without merit.
So far as Sutherland on Statutory Construction is of assistance, he says (vol. 1, sec. 1953):
* * * The act or code as amended should be construed as to future events as if it had been originally enacted in that form. * * * The legislature is presumed to know the prior construction of the original act or code * * *.
It is our conclusion that respondent is deportable under 22 U.S.C. 618 (c), the Foreign Agents' Registration Act of 1938, as amended. The "enforcement provision" of deportation is effective as to him.
Counsel has requested a grant of suspension of deportation on behalf of respondent, in the event that we find him to be deportable. He has the necessary residence requirements, and he is the father of a United States citizen child to whose support he is contributing $25 a month. We are fully cognizant of the seriousness of deporting a man who has lived in the United States all of his adult life. We also are conscious of the fact that the Alien Enemy Hearing Board determined in 1946 that this man was not to be deported under the Undesirable Aliens Act, 8 U.S.C. 157. However, respondent falls directly within a class of persons determined by Congress to be deportable under 22 U.S.C. 618. We do not believe that we should exercise discretionary relief in his behalf. In U.S. v. German-American Vocational League, Inc., 153 F. (2d) 860, 865 (C.C.A. 3, 1946) (the case involving the criminal proceedings against respondent and others), the Third Circuit Court of Appeals said:
The balance of appellant's points not included in the above discussion have been carefully examined and are without merit. No useful purpose would be served by detailing the evidence with respect to each appellant. It is enough to say that it involved all of them as active participants in the conspiracy charge to a greater or less degree.
The court had held that the requirement for registration under the Foreign Agents Registration Act is not limited to agencies created by an express contract, but that the true test was whether agency in fact existed. The court believed that the German-American Vocational League was, in fact, a propaganda agency of the German Reich, representing itself to be a social and fraternal organization to the end that it should not be registered as a foreign agency. We note that G---- went to Germany during the summer of 1937 to visit his family. Eichenlaub and others also visited Germany in the summer of 1937, and it was during 1937 that the contract between the German Labor Front and the German-American Vocational League was established, as set forth in the opinion in United States v. League, 153 F. (2d) 860 at p. 863, footnote. The Supreme Court denied respondent's petition for certiorari. ( Gibbs v. United States, 328 U.S. 833, 90 L. Ed. 1609, 66 S. Ct. 976). Under the circumstances, we do not believe that it would be proper for us to declare that respondent Gibbs, who acted as Secretary for the League in San Francisco, was completely innocent of its true function.
We have read all the character recommendations submitted to us by friends, associates, and employers of respondent. We concede that he is a person of good moral character, who appears not to have been in any kind of difficulty with the law or with his associates until 1941. The fact remains that this is not the kind of case we can properly send to Congress with a request for suspension of deportation. Relief for respondent could only follow a Presidential pardon.
Order: The appeal is dismissed.