A-3195603.
Decided by the Board December 11, 1951.
Filipinos — United States resident before May 1, 1934 — status for immigration purposes — deportability under act of October 16, 1918, as amended.
Communist Party of the United States — Deportability of native and citizen of the Philippine Islands, formerly a member of party.
(1) Filipino native, residing in United States since 1926, deemed to be alien for immigration purposes, since May 1, 1934, effective date of Philippine Independence Act of 1934. (See also Matter of V----, 2 IN Dec. 340.)
(2) Filipino native who arrived in the United States in 1926 made "entry into the United States" within meaning of act of October 16, 1918, as amended.
(3) Filipino native, residing in the United States since 1926, deportable under act of October 16, 1918, as amended because of past voluntary membership in Communist Party of United States during period from February, 1938 to December 1939. (See also Matter of O----, 3 IN Dec. 736.)
(4) Deportability under act of October 16, 1918, as amended, based on prior membership in Communist Party of United States not dependent on coexistence of alienage and membership.
CHARGES:
Warrant: Act of October 16, 1918 as amended — After entry, alien who was member of and affiliated with the Communist Party of the United States.
Act of October 16, 1918 as amended — After entry, alien who advocates and teaches, and who was a member of organization that advocates and teaches overthrow, by force and violence, of the Government of the United States.
Act of October 16, 1918 as amended — After entry, alien member of organization that distributes, etc., and causes to be distributed, etc., and that has in its possession for the purpose of distribution, etc., printed matter advocating overthrow, by force and violence, of the Government of the United States.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the decision dated August 1, 1951, of the Assistant Commissioner ordering the deportation of the respondent pursuant to law on a charge based upon the act of October 16, 1918, as amended, in that he was, after entry, a member of the following class set forth in said act: an alien who was a member of the Communist Party of the United States.
The facts of the case are fully set forth in the exhaustive decision dated January 22, 1951, of the hearing officer, which has been adopted with slight modification by the Assistant Commissioner. Briefly, the record relates to a native and citizen of the Republic of the Philippines, 49 years old, male, who last entered the United States for permanent residence at the port of Seattle, Wash., on April 29, 1926, ex-SS. President Jackson. A careful consideration of the evidence adduced satisfies us that the respondent was a member of the Communist Party of the United States from about February 1938 to December 1939 and it is concluded that he is subject to deportation under the provisions of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 because of his membership in the Communist Party of the United States.
The hearing officer and the Assistant Commissioner have considered and disposed of the exceptions raised by counsel below. We shall treat only those exceptions raised in counsel's brief on appeal from the decision of the Assistant Commissioner. In his brief, counsel argues that the respondent is not deportable under the provisions of the immigration laws of the United States, basing this conclusion upon the following allegations:
1. That respondent is not now an alien.
2. That respondent has never been a member of the following class: "aliens who are members of or who are affiliated with (i) the Communist Party of the United States * * *."
3. That respondent has never entered the United States within the meaning of the Immigration Laws and therefore "at the time of entering * * * or * * * at any time thereafter" has never been a member of a deportable class.
4. Even if it should be determined that under the act of 1934 "the Philippine Independence Act" ( 48 Stat. 462) respondent is to be considered "as if he were an alien" he is nevertheless not deportable:
(a) He was not proceeded against while a member of the Communist Party. (See Kessler v. Strecker, 307 U.S. 22, 1939.)
(b) He has not been found to be a member of any deportable class under the laws in effect in 1934; i.e., at the time of the adoption, by Congress, of the Philippine Independence Act ( 48 Stat. 462).
While for the purpose of the proceeding it may be conceded that at the time of his entry on April 29, 1926, the respondent may have enjoyed certain rights or privileges as an American national, (The Treaty of Paris, (between United States and Spain) ratified April 11, 1899, 30 Stat. 1754; act of July 1, 1902, 32 Stat. 691, amended March 23, 1912, 37 Stat. 77; act of August 29, 1916, 39 Stat. 546), the finding of alienage is predicated in the first instance upon the provisions of the Philippine Independence Act, approved March 24, 1934, effective May 1, 1934, section 8 (a) (1), of which provides:
For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except secs. 13 (c)), this section, and all other laws of the United States relating to the immigration, exclusion or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens ( 48 Stat. 466; 48 U.S.C. 1232).
The Philippine Independence Act of 1934 culminated in the treaty of July 4, 1946, effective October 22, 1946, 61 Stat. 1174, proclaiming the independence and sovereignty of the Republic of the Philippines. In view of these latter two enactments, there can be no longer any doubt that the respondent is an alien, ( U.S. v. Gancy, 54 F. Supp. 755 (D.C. Minn. 1944) aff'd 149 F. (2d) 788, cert. den., 326 U.S. 767, rehearing denied 326 U.S. 810; Cabebe v. Acheson, 183 F. (2d) 795 (C.A., 1950)).
Counsel's second point in his brief is that the respondent has never been a member of the following class: "Aliens who are members of or who are affiliated with (i) the Communist Party of the United States," contending whether or not the respondent is now an alien, there was never the concurrence between alienage and membership in the Community Party in the United States which is necessary under the terms of the statute to place respondent in a deportable class. Counsel does not in his brief choose to discuss the evidence as to membership in the Communist Party of the United States. As we have previously stated, we are satisfied that the evidence establishes such membership, and counsel for the purpose of the brief conceded the point. The deportability of the respondent in this proceedings is predicated upon the following pertinent provisions of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 (8 U.S.C. 137):
[Section 1.] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
(2) Aliens who, at any time, shall be or shall have been members of any one of the following classes: * * *
(C) Aliens who are members of or affiliated with * * * (1) the Communist Party of the United States.
Section 4 (a). Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes enumerated in * * *. Section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this act, irrespective of the time of their entry into the United States.
Counsel urges that there must be a concurrence of alienage at the time of membership of the respondent in the Communist Party in order to bring the respondent within the deportable class set forth in the act of October 16, 1918, as amended. We have previously stated our position that the respondent was, in fact, an alien at the time of his membership in the Communist Party during the period of February 1938 to December 1939. Even if we were to adopt counsel's suggestion that at best the respondent did not become an alien until the treaty of 1946, we disagree with the position taken by counsel. Judicial precedent to support this view may be found in the case of U.S. ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 94 L. Ed. 307 (1950). This case involved a person who, while a naturalized citizen was convicted of conspiracy to violate the Espionage Act of 1917; whose citizenship was thereafter revoked in a denaturalization proceeding; and whose deportation was sought thereafter under the Act of May 10, 1920 (8 U.S.C. 157). The finding of undesirable resident under the deportation statute was based upon the relator's conviction of conspiracy to violate the Espionage Act of 1917. The majority opinion, delivered by Mr. Justice Burton held in pertinent part as follows:
A simpler and equally complete solution lies in the view that the act does not require that the offenders reached by it must have had the status of aliens at the time they were convicted. As the act does not state that necessity, it is applicable to all offenders, including those denaturalized before or after their convictions as well as those who never have been naturalized. The convictions of the relators for designated offenses are important conditions precedent to their being found to be undesirable residents. Their status as aliens is a necessary further condition of their deportability. When both conditions are met and, after hearing the Attorney General finds them to be undesirable residents of the United States, the act is satisfied.
By analogy, the language of the Court is appropriate to this case. Here, there has been established membership in the proscribed organization, the Communist Party of the United States, which is a condition precedent to the finding that he is a member of the deportable class of aliens enumerated in section 1 (2) (C) (i), as amended. His present status as an alien is a necessary further condition of his deportability. Since both conditions have been met, the requirements of the act are satisfied. It may be noted in passing that counsel's reference to the case of Kessler v. Strecker, 307 U.S. 22 (1939), is not pertinent inasmuch as the amendatory act of June 28, 1940, to the act of October 16, 1918, was for the very purpose of overcoming the deficiency in the previous act pointed out in Kessler v. Strecker. (H. Rept. 994, 76th Cong., 1st sess., p. 6; S. Rept. 1154, 76th Cong, 1st sess., p. 5). The amendments contained in the Internal Security Act of 1950 made no change in this portion of the language of the amendatory act of June 28, 1940.
Under the second point in his brief counsel included the argument that even if the respondent were to be regarded as if he were an alien under the Philippine Independence Act of 1934, he is subject to the immigration laws specifically in force and effect at that time, and is not subject to any amendatory or additional immigration laws. We believe this argument does violence to the plain meaning of the wording of section 8 (a) of the Philippine Independence Act which provides "For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except sec. 13 (c)), this section, and all other laws of the United States relating to immigration, exclusion, and expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens." The italic has been supplied in order to emphasize the obvious and potent purpose of making citizens of the Philippine Islands subject to all immigration, exclusion, and expulsion laws, just as any other alien. We find no room in the construction of this sentence for any doubt as to the meaning of these words, and we conclude that the plain intendment is that all immigration, exclusion, and expulsion laws, then in effect or thereafter promulgated, should apply to citizens of the Philippine Islands. We have examined the case of Varletta v. Barber, 98 F. Supp. 177 (N.D. Calif. 1951,) and find it does not stand for the proposition advanced by counsel.
Counsel's third point is that the respondent has never entered the United States within the meaning of the immigration laws and therefore "at the time of entering or at any time thereafter" has never been a member of any deportable class. Cases cited by counsel do not support this contention, but the argument advanced is either a misunderstanding or a distortion of the principles laid down in the cited cases. These cases involve aliens who were regarded as never having made an "entry" because they had been stopped at the border and excluded (although later they may have been paroled into the United States), or whose departure from the United States was unintentional and involuntary, or was caused by fortuitous circumstances beyond the control of the alien and therefore no "entry" resulted. In the instant case it is manifest that the respondent entered voluntarily with the intention of remaining here for permanent residence on April 29, 1926, when he arrived in the United States from the Philippine Islands. It is clear that this voluntary entry into the United States from a foreign place constituted an "entry" as the term is used in the immigration laws, ( U.S. ex rel. Volpe v. Smith, 289, U.S. 422, 77 L. Ed. 1298.)
Counsel also seeks to sustain this argument by reference to the case of Del Guercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9, 1947). We considered the effect of the Gabot case in three decisions, ( Matter of O----, 3 IN Dec. 155, A-5553948 (1948); Matter of C----, 3 IN. Dec. 184, A-5885722 (1948); Motter of S---- L----; 3 IN Dec. 396, A-5438638 (1949)). Illustrative of the reasoning in those cases is the following language which we used in Matter of O----, ( supra).
Gabot case involved a charge of "sentenced to a year or more for a crime committed within 5 years after entry." The facts were that Gabot, a Filipino, crossed the border from Mexico to the United States on March 20, 1934, and was convicted on January 28, 1935, of murder committed on October 11, 1934. The court, in reviewing the deportation proceedings, found that he was not an alien when he crossed the border and, therefore, there was not an "entry" within the contemplation of the immigration laws. The charge there under consideration made the entry an integral factor in that the entry must have occurred within 5 years of the commission of the offense.
Such is not the case in respect to the charges placed against the present respondent. It is true that the language of the statute respecting the first charge, viz, inmate, contains the words "after such alien shall have entered the United States," but the time of entry is immaterial, hence use of the words last quoted is of no importance; and to hold that because he crossed into the United States at a time when he was not an alien ( Toyota v. U.S., 268 U.S. 401, 1934) forever relieves him from liability for deportation notwithstanding his commission of proscribed acts does violence to the plain language of the Philippine Independence Act. * * *
We find that the act of October 16, 1918, as amended, under which deportation of the respondent is sought, presents the same factors which resulted in the above distinction and differentiation of the holding in the Gabot case, inasmuch as in this statute the time of entry is likewise immaterial and is not an integral factor of the deportability charge, since the statute is equally applicable to any alien who at any time shall be or shall have been a member of the proscribed classes enumerated in section 1 (2) of the act of October 16, 1918, as amended.
The contentions urged by counsel in the fourth point of his brief we believe are substantially the same as those previously raised by counsel under his second point in which he urged the applicability of the case of Kessler v. Strecker, 307 U.S. 22 (1939). We shall not restate the views we have already expressed, but shall merely point out that the requirement of present membership in the prior Act of October 16, 1918, which was laid down in Kessler v. Strecker was removed by the subsequent amendatory enactment of June 28, 1940 ( 54 Stat. 673), and was continued in the act of September 23, 1950, the Internal Security Act (8 U.S.C. 137).
After a full and careful consideration of all the evidence of the case, including the arguments and exceptions raised by counsel, we conclude that the alien is subject to deportation as found by the Assistant Commissioner. We shall accordingly dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.