A-9689703.
Decided by Board August 30, 1954. Certification by Board April 20, 1955. Decided by Attorney General February 16, 1956.
Private bill — Status acquired thereby is preserved by savings clause, section 405 (a) of Immigration and Nationality Act.
(1) An alien, who was deported in 1948 on the charge of having aided aliens to enter the United States unlawfully and in whose case the Congress in 1949, with full knowledge of these facts, authorized reentry by private bill waiving the provisions of the Act of March 4, 1929 (relating to permission to reapply after arrest and deportation) does not become deportable under section 241 (a) (13) of the Immigration and Nationality Act, by reason of his prior misconduct.
(2) Where Congress, in enacting private legislation antedating the Immigration and Nationality Act, intended to permit the alien to gain lawful permanent residence in the United States so that he might establish his eligibility for citizenship, the alien is considered to have acquired a "status" and rights "in the process of acquisition" which are protected by the provisions of sction 405 (a) of the act.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (13) — Prior to entry aided alien to enter United States unlawfully.
BEFORE THE BOARD
(August 30, 1954)
Discussion: The case comes forward pursuant to certification under the provisions of 8 C.F.R. 6.1 (c) by the Assistant Commissioner.
The record relates to a native and citizen of Denmark, 32 years old, male, who last entered the United States at the port of New York, New York, on December 6, 1949, ex MS. Batory, and was admitted for permanent residence upon presentation of a nonquota immigrant visa. The respondent had been convicted on his plea of guilty on June 5, 1946, in the District Court of the United States at Galveston, Texas, of conspiracy to violate section 88, Title 18, United States Code, and section 470, Title 18, United States Code, and was sentenced to imprisonment for 30 days on a charge of unlawfully aiding and assisting alien stowaways to enter the United States, committed on or about May 22, 1946. He previously was made the subject of deportation hearings and was found deportable on the charge of no immigrant visa under the Immigration Act of May 26, 1924, and upon the charge within five years after entry had knowingly and for gain assisted an alien to enter or try to enter the United States unlawfully under the act of February 5, 1917.
Warrant of deportation was executed by the respondent's departure foreign from the port of New York on December 9, 1948. Under the Act of March 4, 1929, as amended, the respondent was because of his deportation inadmissible to the United States until after the expiration of one year from the date of deportation, and after one year if he failed to obtain permission to reapply for admission. To remedy this, a private bill, H.R. 3718, was enacted on October 26, 1949, permitting his admission upon application, notwithstanding the provisions of the Act of March 4, 1929, relating to permission to reapply for admission after deportation.
Previously, the ground of deportation based upon respondent's conviction of assisting an alien to unlawfully enter the United States was contained in section 19 (b) (1) of the Immigration Act of 1917, as amended, and provided as follows:
(1) Any alien who, at any time within five years after entry, shall have, knowingly and for gain, encouraged, induced assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law. [Emphasis supplied.]
It is noted that the prior statute contained a time limitation of five years after last entry to support this charge. However, the present proceeding is instituted under the provisions of the Immigration and Nationality Act of 1952, section 241 (a) (13) of which provides:
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who —
(13) prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law. [Emphasis supplied.]
In addition to the phraseology of section 241 (a) (13), which no longer limits this ground of deportability to five years after any entry but makes it applicable to violations occurring prior to any entry, there is pertinent the provisions of section 241 (d) of the Immigration and Nationality Act which are as follows:
Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all 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.
Thus, by the specific provisions of both section 241 (a) (13) and section 241 (d) a retrospective application is given to the ground of deportability charged in the warrant of arrest. Such a retrospective application does not violate the ex post facto clause of the Constitution which applies only to criminal proceedings inasmuch as deportation is not a criminal proceeding. In a similar case involving aiding another alien to enter the United States illegally which occurred on or about December 13, 1952, prior to the effective date of the Immigration and Nationality Act, the court dismissed a writ application and declined to consider the ex post facto provisions of the Constitution applicable to deportation proceedings.
Calder v. Bull, 3 U.S. 386; Johannessen v. United States, 225 U.S. 227; Bugajewitz v. Adams, 228 U.S. 585; Mahler v. Eby, 264 U.S. 32; Carlson v. Landon, 342 U.S. 524; Harisiades v. Shaughnessy, 342 U.S. 580; Matter of P----, E-1356, 5 IN Dec. 392, affd. Pino v. Nicolls, 119 F. Supp. 122.
Barrios-Macias v. Minton, 114 F. Supp. 470.
The fact that an alien had previously been lawfully admitted for permanent residence does not prevent the retrospective application of new grounds of deportation previously not existing under prior law but contained in the new Immigration and Nationality Act. Thus, in Matter of M----, an alien who entered the United States in 1910 and committed a narcotic violation in 1937 for which he was not deportable under then existing law, was held deportable under section 241 (a) (11) of the Immigration and Nationality Act which was held to be retrospective in application.
Int. Dec. No. 442 (A-2669541, 5 IN Dec. 261); affd. United States ex rel. Marcello v. Ahrens, 113 F. Supp. 22; 212 F. (2d) 830; Matter of C----, E-076976, 5 IN Dec. 630.
Similarly, Matter of P----, E-080814, 5 IN Dec. 651; Matter of R---- E----, A-7797663 (1953).
In United States ex rel. Barile v. Murff, the petitioner originally entered the United States in 1924 and was found deportable under section 241 (a) (4) of the Immigration and Nationality Act because of conviction of two crimes of moral turpitude committed after entry. It was contended that prior to the Immigration and Nationality Act the petitioner was not deportable because one of the sentences was for less than a year. The court held that legislation affecting aliens is not invalid merely because it is retrospective in operation nor does it contravene Article I, section 9 of the Constitution forbidding the passage of ex post facto laws as deportation proceedings are not criminal in nature.
The respondent is married to a native-born citizen of the United States and has two minor citizen children; his wife is expecting the birth of a third child. His record appears to be good. While the private bill in behalf of the alien contemplated the adjustment of his immigration status under the then existing law, the enactment of the Immigration and Nationality Act appears to have defeated that objective. The respondent has been granted voluntary departure. There appears to be no greater degree of discretionary relief available to the respondent.
Order: It is ordered that the outstanding decision and order be and the same are hereby approved.
(April 20, 1955)
The facts of the case are fully set forth in our order of August 30, 1954, in which we found the respondent subject to deportation on the charge stated in the warrant of arrest and approved the order of the special inquiry officer granting him the privilege of voluntary departure in lieu of deportation. On April 1, 1955, the Commissioner of the Immigration and Naturalization Service requested that the case be referred to the Attorney General for review, taking the view that there is a substantial question as to whether the action taken by the 81st Congress in enacting Private Law 345 on October 26, 1949, on behalf of the respondent did not confer upon the latter a status which now renders him immune from deportation on the charge stated in the warrant of arrest.
The facts are fully set forth in our decision of August 30, 1954, and no purpose would be served in repeating them here at length. Briefly, the record relates to a native and citizen of Denmark, 33 years old, male, who was deported on December 9, 1948, on the charge of no immigration visa in violation of the Immigration Act of May 26, 1924, and on the charge that within five years after entry he had knowingly and for gain assisted an alien to enter the United States unlawfully in violation of the act of February 5, 1917. Under existing law, the act of March 4, 1929, as amended (8 U.S.C. 180) the respondent was because of his deportation mandatorily inadmissible to the United States until after the expiration of one year from the date of deportation, and could reenter thereafter only if granted permission to reapply for admission. In order to eliminate this compulsory waiting period of one year (until December 9, 1949) before permission to reapply could be granted, there was enacted on October 26, 1949, on his behalf Private Law 345 (81st Congress, Chapter 748-1st Session, H.R. 3718) which reads as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in the administration of the immigration and naturalization laws, G---- S---- J----, a native of Denmark, shall be admitted into the United States upon application made notwithstanding the provisions of the Act of March 4, 1929, relating to entry after deportation (8 U.S.C. 180).
Subsequently, on December 6, 1949, the respondent was admitted at the port of New York for permanent residence upon presentation of a nonquota immigration visa. Thereafter the Immigration and Nationality Act of 1952 became effective on December 24, 1952, and a warrant of arrest in deportation proceedings was issued under section 241 (a) (13) of the act. This expulsion proceeding was undertaken in view of a change in the prior law enacted into the present law, making deportable any alien who prior to entry assisted another alien to enter the United States in violation of law. The distinction between the prior law and the present law is fully delineated in our decision of August 30, 1954, and there is fully set forth the arguments as to the retrospective effect of the provisions of section 241 (a) (13).
It has been suggested that the enactment of Private Law 345 on October 26, 1949, conferred on the respondent a status which now renders him immune from deportation upon the present warrant charge. In this connection it is well perhaps to study fully the private law which has been set out at length above. All that the private law purported to do was to render it unnecessary for one respondent to wait for a year before being eligible to receive permission to reapply for admission into the United States after deportation as provided by the act of March 4, 1929 (8 U.S.C. 180). No reference was made to excusing or waiving any possible ground of exclusion or expulsion arising as a result of his conviction on June 5, 1946, in the District Court of the United States at Galveston, Texas, of conspiracy to unlawfully aid and assist alien stowaways to enter the United States. It may have been thought perhaps that no action was necessary because under then existing law, section 19 (b) (1) of the Immigration Act of 1917, as amended (8 U.S.C. 155 (b) (1), 1940 edition), such conduct constituted a ground for deportation only if it occurred within five years after entry. Under the Immigration and Nationality Act of 1952, this conduct was made a ground of deportability if it occurred prior to, at time of entry, or any time within five years after entry. The new act, therefore, created a ground of deportation which was not in existence at the time of the respondent's reentry for permanent admission on December 6, 1949. However, it is clear that Congress by virtue of its plenary power over aliens might deport them from this country at any time, for any reason, even on grounds non-existent at the time of their entry. Private Law 345 did not purport to confer any status upon the respondent rendering him immune from deportation on the charge of unlawfully assisting an alien; rather, a reading of the provisions of that law merely indicate that it conferred an expedited form of permission to reapply for admission after deportation and nothing more. While it may be that the facts regarding the respondent's activities in assisting other aliens to enter the United States illegally were before Congress when considering the bill, those facts were merely a circumstance to be considered with other factors in determining whether legislative assistance should be granted him, and nowhere does there appear any language in the bill which would immunize him against deportation because of his conduct in assisting aliens to enter the United States illegally.
Marcello v. Ahrens, 212 F. (2d) 830, 831, 836 (C.A. 5, 1954).
However, assuming, without conceding, that the respondent acquired a status under the private law enacted in his behalf, there is still to be considered whether such status was preserved by the savings clause, section 405 (a) of the Immigration and Nationality Act. This section provides in pertinent part as follows:
Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect * * * 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.]
The savings clause regarding any status or condition is inapplicable where there is an otherwise specific provision. It can readily be perceived that section 241 (a) (13) of the Immigration and Nationality Act specifically provides a change in the prior provision under section 19 (b) (1) of the Immigration Act of 1917, as amended, 8 U.S.C. 155 (b) (1), in that it adds within the deportable groups specified therein conduct occurring prior to an entry as contrasted with conduct occurring subsequent to an entry as provided by the prior law. Accordingly, since it has been specifically otherwise provided as set out in the savings clause, whatever condition or status this subject alien may have had is excluded from the benefits of the savings clause; this conclusion is also strengthened by reference to section 241 (d) which makes the provisions of the section applicable to all aliens belonging to any of the classes enumerated in subsection (a) notwithstanding (1) that any such alien who entered the United States prior to the date of the enactment of the 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 the enactment of the act.
Other instances of the non-application of the savings clause may be furnished by way of illustration. Thus, a pardon conditioned upon good behavior and conduct granted in 1945 by the Governor of Ohio and effective to prevent deportation under section 19 (a) of the Immigration Act of 1917 was ineffective under the Immigration and Nationality Act of 1952 because not full and unconditional as required by section 241 (b) of the latter act. Similarly, a stowaway not amenable to deportation because proceedings were not instituted within five years after entry as required under the Immigration Act of 1917 was deportable under section 241 (a) (1) of the Immigration and Nationality Act because of the omission of the statute of limitations in section 241 (a) (1) of the latter act. An alien not deportable as a narcotic violator under the Act of February 18, 1931, as amended (8 U.S.C. 156 (a)), because within the exception in that act relating to addicts was adjudged deportable under section 241 (a) (11) of the Immigration and Nationality Act because the latter act omitted the exception as to addicts.
Matter of C----, E-076976, 5 IN Dec. 630, affirmed United States ex rel. Carson (Corasaniti) v. Kershner (E.D. Ohio, April 1954, Civ. No. 30800).
Idem; Matter of A----, E-081282, Int. Dec. No. 636.
Unreported Matter of F---- S----, 0900-56851 (November 9, 1954).
These considerations lead to the conclusion that the respondent derived no status rendering him immune from deportation upon the enactment of Private Law 345 enacted on his behalf on October 26, 1949, and that even assuming that he did acquire a status it was not within the savings clause of the Immigration and Nationality Act. The defense of double jeopardy is not available in deportation proceedings. The private law enacted on behalf of the respondent merely expedited the time within which he could reapply for admission into the United States and conferred no other rights, privileges or immunities. There is no doubt that a private bill could be enacted on behalf of the respondent so worded as to render him immune from disabilities arising in exclusion or expulsion proceedings as a result of his conduct which resulted in his conviction on June 5, 1946, in the District Court of the United States at Galveston, Texas, on a charge of unlawfully aiding and assisting alien stowaways to enter the United States. It is concluded that no change should be made in the outstanding order of this Board.
Bridges v. United States, 199 F. (2d) 811, 929, reversed on other grounds 346 U.S. 209.
Order: It is ordered that pursuant to the request of the Commissioner, Immigration and Naturalization Service, and under the authority of Title 8, Code of Federal Regulations, section 6.1 (h) (1) (iii), the decision of the Board be certified to the Attorney General for review.
(February 16, 1956)
Order: The decision and order of the Board of Immigration Appeals in this case, dated August 30, 1954, are hereby reversed, and it is ordered that appropriate action be taken to terminate the proceedings herein.
The respondent in this case departed the United States on December 9, 1948, thus executing an outstanding warrant of deportation against him, based on the charge that he aided aliens to enter the United States unlawfully. Congress, with full knowledge of these facts and contrary to the recommendations of this Department, authorized his reentry to the United States by means of private legislation, notwithstanding the provisions of the Act of March 4, 1929, relating to permission to reapply for admission after deportation.
There is strong evidence in the legislative history of the private legislation to establish that the Congress intended thereby to permit the respondent to return to the United States permanently and thus to gain residence which would enable him to obtain citizenship as the husband of an American citizen. Where it is thus established that the Congress intended by special legislation, which antedated the Immigration and Nationality Act of 1952, to bestow status which permits the acquisition of rights, such "status" and rights "in process of acquisition" are preserved by the savings provisions of section 405 (a) of the 1952 act ( United States v. Menasche, 348 U.S. 528).