E-1356
Decided by the Board August 11, 1953
Conviction, Massachusetts — Effect of placing case on file — Crime involving moral turpitude, Massachusetts, abuse of female child under 16 — Section 241 (a) (4) of the Immigration and Nationality Act retrospective in effect-Special inquiry officer — Fair hearing — Evidence.
(1) A "conviction" under the law of Massachusetts means that a defendant in a criminal case has pleaded guilty or has been found guilty by verdict of a jury or finding of a court, except that sentence is required before there can be a "conviction" where an additional penalty flows automatically from the imposition of sentence. Deportation proceedings are not within the exception since a determination of guilt does no more than confer jurisdiction upon an independent tribunal, the special inquiry officer, to proceed with a separate inquiry. Therefore, a "conviction" within the meaning of the Immigration and Nationality Act exists even though sentence has been revoked and the case has been placed on file in the court.
(2) The crime of carnal abuse of a female child under the age of 16 years, even though she gives full consent, is a crime involving moral turpitude under the law of Massachusetts. (Previously held to be crime involving moral turpitude: Matter of P----, A-3748813, 2 IN Dec. 117, 121 footnote 16; and Matter of R----, A-6927822, 3 IN Dec. 562.)
(3) Section 241 (d) of the Immigration and Nationality Act expresses unmistakably the intent of Congress to make section 241 (a) (4) of that act retroactive. Therefore, an alien who at any time after entry is twice convicted of crimes involving moral turpitude is deportable under section 241 (a) (4) whether or not he has been sentenced therefor and whether or not the convictions were obtained before or after the effective date of the act.
(4) The examination of Service files by the special inquiry officer prior to a hearing does not constitute commingling of investigative, prosecutive and judicial functions or preclude fair hearing since the special inquiry officer is required to familiarize himself with the record in order to discharge his functions of presenting evidence and examining and cross-examining witnesses.
(5) The procedure provided in section 242 (b) of the Immigration and Nationality Act provides due process of law ( U.S. ex rel. Marcello v. Ahrens, 212 F. (2d) 830 (C.A. 5, May 6, 1954), and a fair hearing obtains when that procedure is followed.
(6) The introduction of evidence relating to an alien's criminal record, though not specifically related to the deportation charges, does not constitute reversible error.
CHARGES:
Warrant: Immigration and Nationality Act — Convicted of two crimes, after entry, not arising out of a single scheme of criminal misconduct: Assault with intent to rape and rape; and larceny.
Lodged: Immigration and Nationality Act — Convicted of two crimes, after entry, not arising out of a single scheme of criminal misconduct: Abuse of female child; and larceny.
BEFORE THE BOARD
Discussion: This is an appeal from a decision of the special inquiry officer dated March 23, 1953, directing the deportation of the respondent on the charge lodged at the hearing.
The case is concerned with a 46-year-old married male alien who was born at Divieto, Messina, Italy, on May 7, 1907. He was admitted to the United States on May 25, 1908, for permanent residence. He was then 1 year old and was accompanied by his mother. He has maintained a residence in the United States since that time.
The record shows that the respondent was arrested on December 8, 1948, and a complaint filed against him in the Third District Court of Eastern Middlesex, Cambridge, Middlesex County, Mass., charging him with stealing 12 golf balls; that he entered a plea of not guilty but was found guilty on December 23, 1948, and sentenced to 1 year in the house of correction; appeal was taken on December 27, 1948, but on December 28, 1948, the appeal was withdrawn by leave of court and a motion for a new trial was filed and allowed continued for new trial. On January 4, 1949, he was found guilty, sentenced to 1 year in the house of correction and appealed on January 10, 1949; on January 28, 1949, appeal withdrawn by leave of court and sentence suspended; on January 30, 1950, appeal was waived, sentence revoked, and the case placed on file. The record further shows that on January 9, 1928, respondent was indicted by a grand jury of Suffolk County, Boston, Mass., charging him with abuse of a female child and, after entering a plea of not guilty, was found guilty, as indicted, on March 20, 1928, and sentenced on March 29, 1928, to be committed in the reformatory, Concord, Mass., for a term of 5 years and 1 day. The foregoing evidence consists of certified copies of court records which have been identified as relating to the respondent.
The first contention of counsel is that P---- is not deportable because he has not been convicted of the crime of larceny of 12 golf balls. That is, it is counsel's argument that the action of the court in this case in placing it on file precludes us from finding that there has been a conviction, within the purview of the immigration laws, because the placing of a case on file does not, under the laws of Massachusetts, constitute a conviction.
Counsel has pointed out that this primary problem must be determined by applying the law of the State where the crime was committed ( U.S. v. Smith, 41 F. (2d) 707), here, Massachusetts.
Prescinding momentarily from the immediate issue, however, the Supreme Judicial Court of Massachusetts has repeatedly enunciated the essential character of that feature of the Commonwealth's criminal procedure here being considered. It has long been a common practice in that state, after a verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on files; and this practice has been recognized by statute (Sts. 1865, ch. 223, 1869, ch. 415, sec. 60; cf. also ch. 218, sec. 38 and ch. 219, sec. 8-Gen. Laws Massachusetts, Ter. Ed. 1933). Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court; but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuance upon the dockets, and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward and pass any lawful order or judgment therein ( Commonwealth v. Dowdican's Bail, 115 Mass. 133). The case then stands on the records of the court, and although usually no further proceedings are had in it, it may at any time be called up and sentence may be imposed, or some other final disposition may be made of it ( Marks v. Wentworth, 199 Mass. 44). There has been merely a suspension of active proceedings in the case, and as yet no final disposition ( Commonwealth v. Carver, 224 Mass. 42).
While the decisions herein cited are not necessary to support our decision, it is of interest to note that the Supreme Judicial Court of Massachusetts has at least intimated that the "placing of a case on file" may be the same as suspension of sentence ( King v. Commonwealth, 246 Mass. 57), and probation ( Finer v. Commonwealth, 250 Mass. 493).
The question of the proper interpretation to be given the words "final conviction" or "finally convicted" is not free from difficulty (Fifth report of Judicial Council of Mass., 1929; 15 MQ (2) 31). It is quite clear to us, however, that the term "conviction" is used in at least two different senses in the Massachusetts Statutes. And it appears to be well settled that in its ordinary legal sense the word "conviction," as used in those statutes, signifies that the defendant has pleaded guilty, or has been found guilty by the verdict of a jury. The exhaustive opinion of Chief Justice Gray ( Commonwealth v. Lockwood, 109 Mass. 323), leaves no doubt that such was the meaning of the word "conviction," not only in the common law, but as it was used in the Constitution, and, for the most part, in the Statutes of the Commonwealth of Massachusetts (Public Sts. ch. 200, sec. 5; Gen. Laws, Ter. Ed., ch. 263, sec. 6-1933). In some statutes, however, the word is used as implying the judgment and sentence of the court upon a verdict or confession of guilt. For example, the provisions of the statutes (Pub. Sts. ch. 169, sec. 19; Gen. Laws, ch. 233, sec. 21), that the conviction of a witness of a crime may be shown to affect his credibility, has been held to be limited to cases where final judgment has been entered upon the verdict ( Commonwealth v. Gorham, 99 Mass. 420). So also in the case of the plea of autrefois convict ( Commonwealth v. Lockwood, 109 Mass. 323, 329). These and other cases in which the word "conviction" is used in a more comprehensive sense as implying a judgment may be regarded, however, as exceptions to the general rule (1 Op. Att'y Gen. 499, 500).
In 1950 this section was amended so that, under certain circumstances, a plea or verdict of guilty in a felony case constitutes a conviction within the meaning of the statute ( Forcier v. Hopkins, 53 A.S. 95, Jan. 8, 1953; 110 N.E. 2d 126).
In Munkley v. Hoyt, 179 Mass. 108, where it was provided in St. 1896, chapter 397, section 9, that the Board of Registration in Pharmacy, after hearing, might suspend the registration and certificate of a registered pharmacist, or might revoke such registration and certificate altogether, but which contained the provision that "the license or certificate of registration of a registered pharmacist shall not be suspended or revoked for a cause punishable by law until after conviction by a court of competent jurisdiction," the court held that the placing of a case on file after a plea of guilty was a sufficient conviction to warrant the suspension or revocation of the license. Whereas, in the case of Commonwealth v. Kiley, 150 Mass. 325, where the statute (St. 1887, ch. 392) provided that the conviction of a person licensed to sell intoxicating liquors shall of itself make the license void, the court held that a verdict of guilty was not a "conviction" within the meaning of the statute. (See also, Commonwealth v. Gorham, 99 Mass. 420; Fay v. Harlan, 128 Mass. 244.)
The distinction between the cases of Munkley v. Hoyt and Commonwealth v. Kiley ( supra), and other similar decisions, appears to rest upon the fact that in the latter the conviction itself voids or revokes the license so that the loss of the license in effect becomes a part of the sentence rather than a consequence of the verdict or finding of guilty, while in the former case the determination of the guilt of the licensee did no more than confer jurisdiction upon an independent tribunal to proceed with a separate inquiry resulting in the revocation or suspension of the license (3 Op. Att'y Gen. 572).
For citations of cases paralleling Munkley v. Hoyt and Comm. v. Kiley decisions, see appendix.
Counsel also contend, with regard to the question of conviction, that P----'s case is still pending in the district court, can be called up for sentence at any time on motion of either party, and that if a new sentence is imposed P---- will have an appeal to the superior court where, it is alleged, he will be given a trial de novo. The argument is then advanced that if we hold that there has been a conviction here, P---- may well be deported and thereafter found not guilty by the superior court.
At p. 3 of supplemental brief, it is indicated that P---- filed a motion for a new trial on February 4, 1953, and that on February 14, 1953, decision on the motion was reserved.
Letter of June 4, 1953, from assistant clerk of district court, furnished by counsel, supplementing letter of January 29, 1953, to Boston office of the Service.
While we do not wish to question the accuracy of the information contained in the letter of the assistant clerk of the district courtfn6 ( supra), the contents thereof are not entirely clear to us in the light of the facts of this case and the law of Massachusetts. In the case of Renado v. Lummus, 205 Mass. 155, the court held-"A right of appeal in a criminal case in a police, district or municipal court is given only to one who has been convicted, and the appeal is only from the sentence, which corresponds to the judgment of the court in civil actions." [Emphasis supplied.] In any event, the contingency foreseen by counsel can be forestalled administratively by a request for stay of deportation (8 C.F.R. 243.3 (b)).
Summarizing briefly, we have exhaustively examined the cases cited by counsel for the alien and the Service, and we have carefully considered the able arguments presented by them. It is clear to us that in its ordinary legal sense the word "conviction," under the law of Massachusetts, means merely that a defendant in a criminal case has pleaded guilty or has been found guilty by a verdict of a jury or finding of a court. That is precisely the situation we find with regard to P----. It is the policy of this Board to give to the word "conviction" its ordinary legal interpretation, for purposes of the immigration laws. We have pointed out that the exceptions to the general rule in Massachusetts wherein a sentence is required before there has been a "conviction," occur where an additional penalty flows automatically from the imposition of sentence and in effect becomes a part thereof, rather than a consequence flowing therefrom. Here, the determination of P----'s guilt of the crime of stealing golf balls, plus the crime hereinafter to be discussed, did no more than confer jurisdiction upon an independent tribunal, the special inquiry officer, to proceed with a separate inquiry resulting in the order of deportation, here being appealed. Finally, we have pointed out that even if P---- is successful in obtaining a trial de novo in the superior court, whereby the finding of guilt by the district court might be set aside, he has available an administrative remedy to defer deportation pending such a decision.
On the basis of the foregoing, and as this record now stands, it is clear to us that P---- has been convicted of the larceny of 12 golf balls, within the purview of the Immigration and Nationality Act.
It is so well recognized as to obviate further discussion that the crime of larceny, whether grand or petty, involves moral turpitude (B.I.A., 56158/494, July 5, 1944; Tillinghast v. Edmead, 31 F. (2d) 81; Blumen v. Haff, 78 F. (2d) 833). However, the second substantive argument advanced in this case is that the crime of abuse of a female child, of which P---- was convicted in 1928, does not involve moral turpitude.
The criminal conviction we are now considering was had under an indictment charging that P---- assaulted a female child under the age of 16 years, with the intent to unlawfully and carnally know and abuse her, and that he did unlawfully and carnally know and abuse her, and that P---- was found guilty as indicted, and there is no question but that his conviction was for violation of section 23 of chapter 265 of the General Laws of Massachusetts. It is urged that under said section a person may be convicted even though he did not know the girl was under age; that the crime requires no force, knowledge, or intent; that the crime P---- committed was merely fornication; that mere fornication even with a girl under 16 does not involve moral turpitude; and that it is difficult to realize how fornication with a girl of 15 years, 11 1/2 months, of mature body and mind, who voluntarily and perhaps for profit submits, can be considered as base, vile, and depraved. Finally, in this connection, it is urged that under Massachusetts law the crime of abuse of a female child does not necessarily involve moral turpitude.
Sec. 23, ch. 265, Gen. Laws of Mass. reads as follows:
"Whoever unlawfully and carnally knows and abuses a female child under 16 shall be punished by imprisonment in the State prison for life or for any term of years, or, except as otherwise provided, for any term in any other penal institution in the Commonwealth."
The contentions of counsel with respect to this crime are completely without merit. In the first place, this Board has previously held that carnal abuse of a minor child involves moral turpitude ( Matter of P----, A-3748813, 2 IN Dec. 117, 121, footnote 16; Matter of R----, A-6927822, 3 IN Dec. 562, 564). Secondly, it has been judicially determined that the crime involves moral turpitude ( Bendel v. Nagle, 17 F. (2d) 719; Ng Sin Wing v. United States, 46 F. (2d) 755, 756). In the first decision cited, the court, in passing on a Maryland statute on the subject, stated: "The crime of which the appellant was convicted is usually classified as rape, the statute simply raising the common-law age of consent, and such a crime manifestly involves moral turpitude." In the other case cited, the court merely adopted the former, without comment. Finally, in this connection, there is no question but that the crime involves moral turpitude, under the law of Massachusetts. In the case of Commonwealth v. Hackett, 170 Mass. 194, the court left no doubt that the crime of having carnal connection with a girl under 16 years is rape, even if she gives full consent. (Cf. also, Commonwealth v. Sugland, 4 Gray 7). Again, in the case of Commonwealth v. Murphy, 165 Mass. 66, the court stated that consent is no excuse (Cf. also, Commonwealth v. Roosnell, 143 Mass. 32), and classified this crime "as one of the most heinous crimes that can be committed." The court also therein pointed out that it would make no difference if the female child were 15 years and 11 months of age and answered the argument re: fornication, adversely to counsel, by this language: "It is a familiar rule that, if one intentionally commits a crime, he is responsible for the consequences of his act if the offense proves to be different from that which he intended."
It is next contended that P---- is not deportable under section 241 (a) (4) of the Immigration and Nationality Act on the basis of his convictions of the two crimes specified in the charge lodged at the hearing, because said section requires that the alien be sentenced for such crimes. We need not consider the question of whether the placing of a case on file after a verdict of guilty amounts to a sentence, because this contention is obviously without merit. It is clear that the argument is directed to the second clause of subsection 4 of section 241 (a) of said act. It is equally clear that that portion thereof does not require sentencing to render P---- deportable. The language of the law is clear and unambiguous, and it is readily apparent that it lucidly expresses the intent of Congress. The legislative history of this Act leaves no room for doubt in the matter and renders it obvious that an alien twice convicted of crimes involving moral turpitude after entry is deportable regardless of whether or not he has been sentenced therefor. The language used to express the congressional intent is as follows:
That section reads as follows: "Section 241. (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who (4) is convicted of a crime involving moral turpitude committed within 5 years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution for a year or more, or 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 conviction were in a single trial."
Thus, an alien who at any time after entry is convicted of two crimes involving moral turpitude, is deportable, regardless of whether confined therefor, whereas under existing law the alien must have been sentenced to a term of a year or more because of such convictions. (H. Rpt. 1137, 82d Cong., 2d sess., p. 21; Report of the Committee on the Judiciary pursuant to S. Res. 137, S. Rpt. 1515, 81st Cong., 2d sess., p. 392.)
Counsel further urges the proposition that section 241 (a) (4) of the Immigration and Nationality Act ( supra) applies specifically to crimes committed and convictions obtained after the effective date of the act. That is, it is contended that the language thereof discloses an unmistakable intent on the part of Congress to have that clause applied prospectively only. We, however, reject this argument categorically. Section 19 (a) of the Immigration Act of February 5, 1917, as amended, referring to the deportability of aliens on the basis of more than one conviction of a crime involving moral turpitude, stated, "or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry." [Emphasis supplied.] Section 38 of that act provided that the provisions thereof were to take effect on or after May 1, 1917. Section 241 (a) (4) does not contain the equivalent prospective language which was contained in sections 19 and 38 of the act of February 5, 1917, as amended. The foregoing, to us at least, reflects a material change in the law which substitution, since Congress is presumed to have been aware of the construction of terms in the 1917 act, clearly indicates that the former phraseology did not correspond with the legislative intent and that a different interpretation should be given to the new wording.
Also, the word "hereafter" appears in section 241 (a) (3) of the Immigration and Nationality Act. Had Congress intended to give section 241 (a) (4) thereof prospective application only, it would have been a simple matter to have inserted the same word therein. Moreover, section 241 (d) brings P---- within the class of aliens deportable under 241 (a) (4). Section 241 (d) expresses unmistakably the intent of Congress to make 241 (a) (4) retroactive. There is nothing therein to show only a prospective intent on the part of Congress with regard thereto.
Section 241 (d) reads thusly: "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 the 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 the enactment of this Act."
It is further contended that, should we rule, as in fact we have, that the provisions of section 241 (a) (4) of the Immigration and Nationality Act were intended to operate retrospectively, there are ample constitutional reasons to prevent the fulfillment of such intent. That is, it is urged that the Act is constitutionally objectionable because it makes deportable for the first time and without any forewarning aliens such as P---- who before the passage of the act could not have been deported. In other words, the argument is that the act is unconstitutional as an ex post facto law. In the first place, during all the years since 1917 Congress has maintained an admonition to aliens that their conviction of more than one crime involving moral turpitude may subject them to deportation at any time. Hence, P---- was not caught unawares and there appears to be no ground to the contention that he was not adequately forewarned both that his conduct was prohibited and of its possible consequences. Secondly, the ex post facto clause of the Constitution applies only to criminal proceedings ( Calder v. Bull, 3 U.S. 386, 390; Johannessen v. U.S. 225 U.S. 227, 242), and deportation is not a criminal proceeding ( Bugajewitz v. Adams, 228 U.S. 585, 591; Carlson v. Landon, 342 U.S. 524, 537). The precise contention here made has been unqualifiedly rejected ( Mahler v. Eby, 264 U.S. 32; Harisiades v. Shaughnessy, 342 U.S. 580, is to the same effect).
Exception has also been taken to P----'s deportability on the "unconstitutional for vagueness" argument, in connection with the crimes specified in the lodged charge. It appears to us that argument in this respect has been foreclosed ( Jordan v. De George, 341 U.S. 223), as well as by the cases hereinbefore cited by us. Hence, further discussion of this point is unnecessary.
Another argument advanced is that the warrant of arrest should be canceled and this proceeding terminated, for the reason that the doctrine of res judicata is here applicable. This contention is based on the fact that the Assistant Commissioner, Adjudications Division, Immigration and Naturalization Service, in a decision dated October 26, 1950, ordered cancellation of the warrant of arrest dated April 20, 1938, and termination of the proceedings. It is alleged that examination of that decision demonstrates that both of the crimes which are the basis for the present proceeding were therein considered; that, as a result, P---- had the status of an alien who could not be deported on account of those two crimes; and that, by virtue of section 405 (a) of the Immigration and Nationality Act, such status continues in force and effect. In the first place, in the prior proceedings deportability was urged on only one criminal ground common to the present basis for deportation, viz; abuse of a female child. Secondly, the decision of the Assistant Commissioner was based on the fact that the effect of the other crime there involved was wiped out by a pardon. Hence, the facts do not support the present contention. Third, it is well established that administrative decisions of the Executive Department of this Government cannot constitute res judicata ( Pearson v. Williams, 202 U.S. 281). Finally, in this connection, counsel has not cited any specific language in section 405 (a) on which reliance has been placed. Our examination of that section does not disclose any specific provision thereof particularly applicable to P----'s case, and we believe that section 241 (d), ( supra), constitutes a mandate from Congress necessitating the institution of deportation proceedings de novo against P----, using as one of the elements of the charge a crime which served as one of the elements on which a prior deportation proceeding was based.
We are next called upon to consider certain alleged procedural deficiencies which, according to counsel, constitute ample reasons for cancellation of the outstanding warrant of arrest and termination of this proceeding. By way of outline, they are as follows:
(1) There were a number of irregularities in connection with the issuance of the warrant of arrest;
(2) There was a denial of opportunity to prepare, in contravention of the basic concepts of fair play guaranteed by the Constitution and intended by the act and regulations;
(3) There was a commingling of investigative, prosecutive and judicial functions to an extent prohibited by the act and falling far short of constitutional standards of impartiality;
(4) There was a denial of opportunity to explain or rebut hearsay evidence in violation of the regulations and constitutional due process;
(5) There was a denial of opportunity to argue, in violation of the act, regulations and the Constitution.
The first irregularity charged in connection with the issuance of the warrant of arrest is that the application therefor specified that P---- had been convicted of two crimes involving moral turpitude to wit: Assault with intent to rape and rape, and larceny. It is argued that P---- had never been convicted of "assault with intent to rape and rape;" that there was nothing in the Service files indicating the possibility of such a conviction. Therefore, the Service officer applying for the warrant of arrest could not have determined that a prima facie case for deportation had been established on which to base the application; and that, by the same token, the Service official had no authority to issue the warrant. However, the record shows that the application was supported by certified copies of the court records showing P----'s conviction of carnal abuse of a female child and larceny. We have previously pointed out that the former conviction is nothing other than one for rape ( Commonwealth v. Hackett, 170 Mass. 194), albeit statutory. Hence, it is clear that the conduct specified in the application for the warrant of arrest and the warrant itself arose out of the same conduct for which P---- was convicted. Thus, it is clear to us that the argument regarding lack of a prima facie case of deportability is without merit. In addition, assuming but not conceding that there was an irregularity in the proceedings in this respect, it has been well settled in a long line of cases under the immigration laws that irregularities or deficiencies in the issuance of a warrant of arrest do not invalidate later proceedings where sufficient grounds for deportation have been established and the hearing is not shown to have been unfair ( Bilokumsky v. Tod, 263 U.S. 149; Chun Shee v. Nagle, 9 F. (2d) 342; Matter of C----, A-7416925, 4 IN Dec. 415. This record definitely demonstrates that P----'s deportability has been established, and the question of a fair hearing will be herein after tested fully.
The second allegation of irregularity in the issuance of the warrant of arrest is based on the claim that the Service official who issued it was not one of the officials specifically authorized to do so. 8 C.F.R. 242.13 provides that any officer mentioned in 8 C.F.R. 242.1 (a) who receives an application for a warrant of arrest may issue same if he determines that a prima facie case for deportability has been established. (That question was treated in the paragraph immediately preceding.) Section 242.1 (a) also provides that a warrant of arrest may be issued by district directors and other enumerated officers. Section 1.1 (a) (8) of the regulations defines district director as including the officer or employee of the Service who has been designated to act as the district director in the absence of the district director. This record indicates that the Service official here was properly so designated. No evidence to the contrary has been submitted. Also, it is so well a recognized principle of law as to obviate further discussion that there is a presumption which accords regularity to the acts of Government officials.
We find that the contention that P---- has been denied opportunity to adequately prepare his defense is without foundation in fact. One of the reasons advanced was that time was needed by counsel to acquire familiarity with the Immigration and Nationality Act. The fact remains that these proceedings were instituted in January 1953. While it is true that the act did not become effective until December 24, 1952, it was enacted on June 27, 1952. Hence, it had been on the books for approximately 6 months and was not exactly an entirely new piece of legislation. The warrant was served on January 10, 1953 and the first hearing scheduled for January 28, 1953, a notice of more than 2 weeks. At that first hearing a charge was lodged supplementing the charge in the warrant and thereafter the hearing was adjourned until February 10, 1953, a period of about 2 weeks, so that counsel might have an opportunity to prepare to defend against the lodged charge. The hearing held on February 10, 1953, was, on request of counsel, adjourned until February 16, 1953, and thereafter at counsel's request was adjourned until March 6, 1953. It is clear to us that the foregoing facts do not support the claim of lack of time to prepare an adequate defense.
It is also claimed that there was a fatal commingling of investigative, prosecutive and judicial functions on the part of the special inquiry officer. This claim is based on the allegation that said official undoubtedly examined all of the Service files relating to P----. In the first place, commingling of functions does not necessarily render a hearing unfair nor deprive the alien of due process ( U.S. ex rel. Catalano v. Shaughnessy, 197 F. (2d) 65 (C.A. 2, 1952); Belizario v. Zimmerman, 200 F. (2d) 282). There is a limitation in the regulations that no special inquiry officer shall conduct a proceeding in any case where he shall have participated in investigative functions. However, the preparation of this case required the special inquiry officer to familiarize himself with the file. On the facts of this case as we see them, the special inquiry officer's conduct did not constitute investigation in any generally accepted interpretation of that term. What the special inquiry officer actually did was to so act as to enable him to discharge his obligations, viz; to prepare himself to present evidence, and to examine and cross-examine witnesses.
Moreover, it has been judicially determined that the procedures as outlined in 8 C.F.R. 242 (b) provides due process of law. ( U.S. ex rel. Marcello v. Ahrens, 212 F. (2d) 830 (C.A. 5, 1954.)) The record of this hearing shows that the procedure provided in section 242 (b) was meticulously followed. P---- was accorded every safeguard. He had notice of the charges and of the hearing. He was represented by counsel and was given the opportunity to present evidence in his own behalf.
It is further alleged that the hearing was unfair because of a denial of opportunity to cross-examine witnesses. We feel that our treatment of the first procedural argument ( supra) adequately disposes of this contention.
On March 4, 1953, the special inquiry officer denied a request for the issuance of subpenas for the attendance of the acting district director and of the investigating officer applying for the warrant of arrest.
Finally, it is contended that the special inquiry officer admitted irrelevant and hearsay evidence which constitutes such error as should result in a reversal of the order entered by that official. It is claimed that evidence as to the number of times P---- has been arrested, his criminal record as carried by the Massachusetts Board of Probation, and his criminal record as listed by the Federal Bureau of Investigation has no relationship to the charges on which P---- has been found deportable. In the first place, it is so well recognized as to obviate further discussion that the strict rules of evidence do not apply to administrative proceedings ( Bilokumsky v. Tod, 263 U.S. 149). Secondly, that evidence was not necessary to or used, either by the special inquiry officer or this Board, in making the requisite finding in this case. Hence, its introduction did not render this proceeding unfair ( Bridges v. Wixon, 326 U.S. 135). Lastly, the introduction of copies of correspondence with an assistant clerk of the Third District Court of Eastern Middlesex, does not constitute grounds for reversing the decision of the special inquiry officer, for the reasons given immediately preceding; also, as a matter of fact, counsel has submitted correspondence from that same officer to support P----'s case.
We find that the hearing accorded P---- was fair in all respects. We have already pointed up our conclusions as to his deportability on the charge lodged at the hearing. The only factor not previously covered in this opinion, and that immaterial here, is that P---- is married to a United States citizen, whom he supports, and has no children.
Cf. Matter of H----, A-3264888, B.I.A., Dec. 12, 1945, for prior decision that placing of case on file in Massachusetts constitutes a conviction within the purview of the immigration laws.
Editor's Note: See Pino v. Nicolls, 215 F.2d (C.A. 1, 1954) affirming denial of alien's petition for writ of habeas corpus.
On the basis of the foregoing, this appeal must be dismissed, and we will now so order.
Order: It is ordered that the appeal be and the same is hereby dismissed.
APPENDIX
supra, supra,
Date of arrest Charge Disposition Oct. 23, 1915 ................ Stealing ride ...................................... On file. Sept. 30, 1916 ............... .... do ............................................ Do. Oct. 14, 1916 ................ Breaking and entering and larceny (2) .............. Do. Jan. 1, 1916 ................. Playing ball in street ............................. Do. June 1, 1918 ................. ..... do ........................................... Do. Aug. 15, 1918 ................ Larceny ............................................ Probation. Aug. 17, 1918 ................ Stealing ride ...................................... Do. Oct. 25, 1918 ................ Larceny ............................................ Nov. 25, 1921 ................ ..... do ........................................... Suspended sentence. Aug. 12, 1922 ................ Breaking and entering .............................. Probation Nov. 11, 1922. Filed Nov. 24, 1922. Mar. 31, 1923 ................ Obstructing traffic ................................ On file. May 20, 1925 ................. Unlawful appropriation auto ........................ 6 months house of correction, suspended May 21, 1926. May 28, 1926 ................. No license ......................................... Filed June 7, 1926. July 15, 1926 ................ Not slowing down ................................... $15 sentence suspended July 29, 1926. Apr. 15, 1927 ................ Speeding ........................................... $10, paid. Aug. 4, 1927 ................. Restricted street .................................. $5, paid. Nov. 15, 1927 ................ Suspicious person, burglar tools ................... No bill. (Nov. 25, 1927) Mar. 30, 1928. Carnal abuse of female child ....................... Cf.P. No. 3, and exhibit No. 6. Dec. 21, 1927 ................ Speeding ........................................... $15, committed. Nov. 10, 1931 ................ Attempt to break and enter and larceny, nighttime... Dismissed. Sept. 3, 1932 ................ Met. Dist. Commonwealth rules ...................... Filed. Jan. 13, 1933 ................ Suspicious person, breaking windows................. Jan. 16, 1933 ................ Breaking and entering, daytime ..................... 2 years house of correction, appealed Dec. 4, 1933-not guilty. Jan. 16, 1933 ................ Accessory before the fact and breaking and entering. Probable cause. June 3, 1933 ................. Suspicious person, breaking and entering, nighttime. June 21, 1933 ................ Not slowing down ................................... $5, paid. May 4, 1934 .................. Suspicious person, robbery armed.................... June 18, 1934 ................ Speeding ........................................... Do. Jan. 28, 1935 ................ Suspicious person, robbery armed ................... Released. Feb. 13, 1935 ................ Suspicious person, breaking and entering............ Mar. 19, 1935 ................ Suspicious person breaking and entering store....... Released. Mar. 11, 1935 ................ Suspicious person, safe job ........................ Do. Jan. 4, 1936 ................. Suspicious person, murder, armed robbery............ Jan. 16, 1936 ................ Suspicious person, robbery armed.................... Jan. 29, 1936 ................ Speeding ........................................... $10, paid. Feb. 13, 1936 ................ Suspicious person, robbery armed ................... No bill. Oct. 9, 1936 ................. Suspicious person, armed robbery ................... Nov. 2, 1936 ................. Suspicion of larceny ............................... Released on waiver. Feb. 18, 1937 ................ Conspiracy to steal ................................ No bill. Nov. 27, 1937 ................ Possessing burglar tools ........................... Dismissed, want of prosecution. Jan. 6, 1938 ................. Breaking, entering, intent to commit felony......... 3-4 years. (Day) having in possession burglar implements....... Pardoned Sept. 6, 1949. July 12, 1946 ................ Speeding ........................................... $5. Dec. 3, 1948 ................. Larceny (cf. No. 3, exhibit No. 5)........... July 5, 1950 ................. Violation fish and game law ........................ $10. Att'y Gen. v. Pelletier, 240 Mass. 264; Karasik v. Bockus, 293 Mass. 371; City of Boston v. Sdutuosso, 307 Mass. 302; Comm. v. Gorham, 99 Mass. 420; Mariano v. Judge of District Ct., 243 Mass. 90; Comm. v. Boldi, 250 Mass. 528; Comm. v. Hersey, 324 Mass. 245; Fay v. Harlan, 128 Mass. 244; 1944 Op. Att'y Gen. 17; 1931 Op. Att'y Gen. 51. [See page 395.]