A-5553948
Memorandum of Central Office December 4, 1947 Decided by Board January 16, 1948
Filipino — Entry into United States before May 1, 1934, as a "national" — Deportability as "alien" after May 1, 1934 — Ground of "Inmate of house of prostitution" (1941) — Ground of "Found assisting a prostitute" (1941).
Where a Filipino last entered the United States before May 1, 1934, as a "national," he is subject to deportation like any other alien on the ground that he was an inmate of a house of prostitution (1941) and on the ground that he was found assisting a prostitute (1941), inasmuch as the date of his entry is not a necessary element in the deportation process, and on and after May 1, 1934, he was placed in the category of an alien for immigration purposes.
CHARGES:
Warrant: Act of 1917 — Inmate of house of prostitution.
Act of 1917 — Found assisting a prostitute.
MEMORANDUM OF CENTRAL OFFICE
Discussion: The alien, a 41-year-old male, native and citizen of the Philippine Islands, last entered the United States at the port of San Francisco, Calif., ex S.S. Taft sometime in 1927. On October 14, 1941, the Board of Immigration Appeals ordered the alien deported on the grounds stated above. The proscribed conduct which forms the ground for deportability occurred about April 1941.
The case has been submitted for reconsideration in view of the decision of DelGuercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9, 1947). The case cited dealt with a native of the Philippines who entered Hawaii September 9, 1927, arrived in the United States July 11, 1929, and remained continuously in the United States, except for 4 hours spent in Mexico on March 20, 1934. On January 29, 1935, Gabot was found guilty of second degree murder committed on October 11, 1934, and was ordered deported under the provisions of section 19 (a) of the Immigration Act of 1917 on the ground that after May 1, 1917, he had been sentenced to imprisonment for a term of 1 year or more for a crime involving moral turpitude committed within 5 years after entry (8 U.S.C. 155 (a)). The Court held that at the time of his last entry on March 20, 1934, Gabot had been admitted as a Filipino and national of the United States; and that his status did not change to that of an alien until May 14, 1935, the effective date of the Philippine Independence Act. It was further held that inasmuch as Gabot had last entered as a national, the criminal charge was not applicable to him on the theory that the word "entry" in the 1917 act must be construed to mean entry as an alien. The court concluded that since Gabot was not an alien when he last entered that legally he could not be considered an alien at that time so as to bring the "turpitude" statute into play.
This date (May 14, 1935) is the date upon which the Philippine Constitution was adopted. It appears to be incorrect inasmuch as under section 1247, title 48 U.S.C. 1238 of the same title became effective on May 1, 1934, upon acceptance by concurrent resolution of the Philippine Legislature (Hackworth Digest of International Law, vol. 1, p. 496). This Service, therefore, will continue to regard May 1, 1934, as the effective date of the Philippine Independence Act and not May 14, 1935.
In considering the recommendation of the Service that the case be carried to the Supreme Court on certiorari, the Solicitor General expressed the view that Gabot was not an alien when he entered the United States the last time and that it was very doubtful whether the Supreme Court could be induced to hold that he could have been made an alien retroactively by reason of the subsequently passed Philippine Independence Act; that the effect of the decision is to make the statute which now refers to a crime "committed within 5 years after the entry of the alien to the United States," as though it read "committed within 5 years after entry of the alien to the United States as an alien" which is precisely what the statute does mean. Matter of G----, 55898/979.
The facts in the instant case are similar to the Gabot case ( supra). Here the respondent last entered the United States in 1927. At the time of his entry he was a native of the Philippine Islands and a national of the United States. The pertinent portion of section 19 (a) of the Immigration Act of 1917 relating to prostitution is as follows:
Although the charges in the instant case are prostitution charges and not criminal as in the Gabot case, the principle enunciated by the court in the Gabot case would appear to be applicable.
* * * any alien who shall be found an inmate of or connected with the management of a house of prostitution or practicing prostitution after such alien shall have entered the United States, or who shall receive, share in, or derive benefit from any part of the earnings of any prostitute; any alien who manages or is employed by, in, or in connection with any house of prostitution or music or dance hall or other place of amusement or resort habitually frequented by prostitutes, or where prostitutes gather, or who in any way assists any prostitute or protects or promises to protect from arrest any prostitute; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported.
The first clause in the above quoted section of law refers to proscribed conduct committed "after such alien shall have entered the United States." Applying the reasoning of the decision of the Gabot case, the respondent was not an alien when he entered the United States in 1927, but entered as a national of the United States. Under the principle enunciated in the Gabot case the charge must fall.
It is noted that in the succeeding clauses of the quoted portions of the statute no mention is made of an entry. However, it is believed that the decision in the Matter of P----, (A-1217330, Nov. 7, 1946) regarding the construction of the word "found" in the prostitute provisions is equally applicable to the omission of any reference to any entry in the same provisions of the statute. In the P---- case it was held that the word "found" applied to all of the clauses of the statute relating to prostitution in spite of the fact that it was omitted from some of the clauses. Extending the theory of statuory construction used in the P---- case, it is believed that the omission of the phrase regarding entry into the subsequent charges relating to prostitution is not material and that it is to be understood that the proscribed conduct must occur after entry as an alien.
Motion is hereby made that the warrant of deportation be withdrawn and proceedings terminated.
Discussion: On October 14, 1941, we ordered the respondent deported to the Philippine Islands on the charges that he has been found an inmate of a house of prostitution and has been assisting a prostitute. Since the entry of that order the Circuit Court of Appeals has rendered its decision in the case of Del Guercio v. Gabot, 161 F. (2d) 559, which also involved a Filipino and because of that decision and statements by the court in its opinion, the field office inquired whether cancellation of the present proceeding would be appropriate. The Acting Commissioner has reconsidered the case in a four-page memorandum wherein he concludes that "under the principle enunciated in the Gabot case the charge must fall" and he moves that the warrant of deportation be withdrawn and the proceedings terminated.
We disagree. The 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 into 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 proceeding, 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 law. 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 with 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. United States, 268 U.S. 401, 1924) forever relieves him from liability for deportation notwithstanding his commission of proscribed acts does violence to the plain language of the Philippine Independence Act which provides that:
Section 8 (a) * * * (1) For the purposes of the Immigration Act of 1917 * * * this section, and all other laws of the United States relating to the * * * 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. 456; 48 U.S.C. 1232).
The decision in the Gabot case should be limited to cases where the essential factors occurred during a time that the Filipino was in the status of a national of the United States. The respondent's misconduct occurred in 1941, several years after the effective date of the Independence Act and at a time when he was deprived of the immunity from deportation based on grounds unrelated to events which occurred at a time when he was not an alien.
With respect to the second charge, assisting a prostitute, the deportation statute contains no language respecting entry or time of entry. Hence, even less basis exists for concluding that the Gabot decision should prompt a withdrawal of that charge.
Order: It is ordered that the motion to withdraw the order and warrant of deportation be denied.