A-1217330.
Decided by Board June 28, 1946. Ruling by Attorney General November 17, 1946.
Prostitution — Found assisting a prostitute — Found sharing in earnings of a prostitute — Found managing a house of prostitution — Deportability under section 19 of the act of February 5, 1917 (8 U.S.C. 155).
An alien who employed a woman in 1926 to engage in prostitution in a room on his premises, and who received some of her earnings, and assisted her in her activities as a prostitute, but who was not served with a warrant of arrest in deportation proceedings until 1943, or about 17 years later, was held not to be subject to deportation because the service of the warrant of arrest could not be said to have been reasonably contemporaneous with the proscribed misconduct, as contemplated under section 19 of the act of February 5, 1917.
CHARGES:
Warrant: Act of 1917 — Found assisting a prostitute.
Act of 1917 — Found receiving, sharing in, or deriving benefit from the earnings of a prostitute.
Act of 1917 — Found managing a house of prostitution.
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Italy, 59 years old. He last entered the United States at the port of Philadelphia in 1912.
In September 1926, respondent was convicted in Pennsylvania for Pandering and Receiving for Prostitution. He received a sentence to the penitentiary of 5 to 10 years; he served 5 years and was finally discharged from parole in September 1936. Respondent testifies that in the summer of 1926 he operated a confectionery store and for a month or two employed a woman, whom he paid $6 a week. The woman used to entertain men in an upstairs room, which was also under respondent's control, and she gave him five or six dollars a week. Although at first he testified that he did not know where she got this money, he admitted subsequently that she engaged in prostitution, and that the money she gave him was earned by prostitution. He did not attempt to discharge her, or at any rate did not succeed in doing so.
Section 19 of the Immigration Act of 1917 provides in part:
* * * 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; any alien who shall import or attempt to import any person for the purpose of prostitution or for any other immoral purpose * * * shall, upon the warrant of the Attorney General, be taken into custody and deported.
In Matter of A----, 2603068 (June 12, 1945), we held that the first clause set forth above provides for deportation only where the alien's conduct has occurred within a reasonable period before arrest in deportation proceedings. The question here is whether the remaining clauses should receive the same construction. If they do, the proceedings must be cancelled, because respondent's conduct occurred in 1926, almost 17 years prior to the service of the warrant of arrest. If the A---- ruling is not followed, however, respondent is clearly deportable on the first two charges stated in the warrant of arrest.
The evidence falls short of showing that respondent managed a house of prostitution.
In early statutes Congress provided for the exclusion of prostitutes and importers of prostitutes, and for the deportation of persons of this class who entered in violation of law.
Act of Mar. 3, 1875, sec. 5 ( 18 Stat. 477) (exclusion of women imported for purposes of prostitution); act of Mar. 3, 1891, sec. 11 ( 26 Stat. 1086) (deportation within 1 year of those who entered in violation of law); act of Mar. 3, 1903, secs. 2, 20 ( 32 Stat. 1214, 1218) exclusion of prostitutes and persons who procure or attempt to bring in prostitutes; deportation within 2 years after entry of those who enter in violation of law).
The act of February 20, 1907, introduced the concept of deportation for conduct subsequent to entry. It provided for the deportation of "any alien woman or girl who shall be found an inmate of a house of prostitution or practicing prostitution, at any time within 3 years after she shall have entered the United States."
Sec. 3, ( 34 Stat. 900). Section 2 reenacted the excluding provisions of the 1903 act; secs. 20 and 21 extended the time limit to 3 years after entry, for deportation of those who entered in violation of law.
The act of March 26, 1910 amended the 1907 act to read:
36 Stat. 264. The statute also enlarged the excluding provisions by adding the class "persons who are supported by or receive in whole or in part the proceeds of prostitution."
* * * 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; or who 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, protects, or promises to protect from arrest any prostitute, shall be * * * deported * * *.
The 1910 act removed the 3-year limitation and made the stated classes of aliens deportable at any time after entry. The Immigration Act of 1917 substantially reenacted the provisions of the 1910 act set forth above.
There is nothing concrete in the legislative history of these statutes to show whether Congress intended that an alien should be deportable for his past misconduct, and there appears to be only a single court case which considers this question ( United States ex rel. Vicchitto v. Martineau, 27 F. Supp. 440 (D. Conn. 1938)). Vicchitto had lived in the United States since 1908. In 1937 he was ordered deported on the ground that he had been "found managing a house of prostitution" and "found assisting a prostitute." These acts had occurred in 1929. The court said:
The question of law posed by the petitioner is whether an alien may be deported for a deportable offense committed some 7 or 8 years before deportation proceedings are commenced. His contention is that the general statute of limitations barring actions or proceedings to enforce forfeiture or penalties is applicable, and that therefore the Government is barred from taking the deportation proceedings and that the writ of habeas corpus should be sustained.
With this contention I am unable to agree. A deportation warrant is neither a "suit" nor a "prosecution"; it is purely an administrative proceeding and the limitation invoked by the petitioner concerns only suits or prosecutions.
The specific question presented here does not seem to have been adjudicated, but on general principles and on the analogies furnished by other decisions, I am constrained to hold that the action of the Government is not barred by any time limitation whatever. No remedy of any kind is ever barred unless, perforce, by some statute of limitation applicable to such remedy. In other words, the burden lies upon the defendant in any proceeding to establish the existence of a limitation. Even in equity the doctrine of laches goes to the equity of the plaintiff and it is not a limitation on the remedy. In the present instance, no statutory enactment has been called to my attention, and I am unable to find any. It has, however, been held that where an alien who has committed a crime involving moral turpitude, illegally enters this country, he may be deported any time after entry * * *
The specific point raised by the petitioner is this — granting that prostitution committed at any time after entry implicates deportation, does the right of the Government to order deportation expire 5 years after the commission of the offense? This question I decide in the negative.
Judge Thomas' decision in the Vicchitto case was affirmed per curiam, 104 F. (2d) 1023 (C.C.A. 2d, 1939). The only other court case in which the issue here involved was considered is the Frescas case, 56018/588. Deportation proceedings began in 1939 and in 1940 the Board of Immigration Appeals ordered deportation on three grounds:
(1) That the alien was an inmate of a house of prostitution; (2) that she had been found practicing prostitution; and (3) that she had been found managing a house of prostitution. The evidence was that in 1929 and for several years prior to that time she had been associated with her husband in the operation of a house of prostitution, and that she herself had engaged in prostitution. There was no evidence that she had engaged in any activity of this kind since 1929, when her husband was deported. In October 1945, the United States District Court at Chicago sustained a writ of habeas corpus and ordered that the alien be discharged from custody. (See memorandum from Commissioner Carusi to Assistant Attorney General Caudle, on the Frescas case, November 21, 1945.) The court ruled that there was no substantial evidence to support the finding that the alien had been guilty of prostitution. The court also found:
(9) That the failure of the immigration inspectors to challenge her right to remain in this country at any time since 1924, and particularly in 1929 when the deportation proceedings were initiated and successfully completed against her husband, together with other matters and things appearing in the transcript which is attached to the return of the respondent, discloses that the petitioner was not accorded a fair hearing.
(10) That the hearing upon the deportation of the petitioner was not fair and was not supported by any evidence to justify the order of deportation.
The Commissioner did not recommend an appeal and the Solicitor General decided not to take an appeal. The Frescas case involved not only the charge of managing a house of prostitution but also two charges to the effect that the alien had herself engaged in prostitution. With respect to these two charges the A---- case was in point, and the Commissioner in his recommendation seems to have relied strongly on that case.
The Commissioner's memorandum and a memorandum from Assistant Attorney General Caudle to the Solicitor General, reaching the same conclusion, do not differentiate the "managing a house of prostitution" charge from the other charges, or suggest that with respect to this charge the alien was deportable for past conduct.
In any event, however, the ruling of the district court that the order of deportation "was not supported by any evidence" impairs the value of this case as precedent.
In a few cases the alien's conduct occurred several months or even a few years before deportation proceedings began, but the courts do not consider this issue ( Ex parte Young, 211 Fed. 370 (W.D. Wash. 1914); Shee v. Haff, 94 F. (2d) 336 (C.C.A. 9th, 1938); Costanzo v. Tillinghast, 287 U.S. 341 (1932); United States ex rel. Wlodinger v. Reimer, 103 F. (2d) 435 (C.C.A. 2d, 1939) (apparently proceedings begun 4 or 5 years after conduct)). In the overwhelming majority of cases, however, the misconduct appears to have been reasonably contemporaneous with the beginning of deportation proceedings. See, e.g., Ex parte Garcia, 205 Fed. 53 (N.D. Ca. 1913); Ranieri v. Smith, 49 F. (2d) 537 (C.C.A. 7th, 1931); Ex parte Garcia, 2 F. Supp. 966 (S.D. Tex. 1933); Jung Back Sing v. White, 257 Fed. 416 (C.C.A. 9th, 1919); Meier v. Lebaris, 23 F. (2d) 187 (C.C.A. 8th, 1927).
The Commissioner's memorandum referred to above, relies on the Supreme Court's decision in Kessler v. Strecker, 307 U.S. 22 (1939). Strecker had been a member of the Communist Party, but his membership had ceased several months prior to the issuance of the warrant of arrest. He was ordered deported under the act of October 16, 1918, as amended by the act of June 5, 1920. Section 1 of that act provided for the exclusion of aliens "who are members of" an organization that advocates the overthrow by violence of the Government of the United States. Section 2 provided for the deportation of "any alien who, at any time after entering the United States, is found to have been at the time of entry, or to have become thereafter, a member of any one of the classes of aliens enumerated" in section 1.
The court said through Justice Roberts, at pages 29 and 30:
The phrase "at any time" qualifies the verb "found." Thus, if at any time the Secretary finds that at entry the alien was a member, or has thereafter become and is a member, he may be deported. The natural meaning is that, as the alien was excludable for present membership, he is deportable for present membership subsequently acquired * * * If Congress meant that past membership, of no matter how short duration or how far in the past, was to be a cause of present deportation the purpose could have been clearly stated. The section does not bear this import. [Italics supplied.]
* * * When the Congress came to provide for deportation, instead of again enumerating and defining the various classes of aliens who might be deported, it provided that if at any time it should be found that an alien had been admitted and, at the time of admission, was a member of any of the proscribed classes, or had thereafter become such, he should be deported. It is not to be supposed that past membership, which does not bar admission, was intended to be a cause of deportation. And the fact that naturalization is denied to an alien only on the ground that he " is a member of or affiliated with any organization entertaining" disbelief in or opposition to organized government, and not for past membership or affiliation, lends added force to this view. [Italics supplied.]
In the absence of a clear and definite expression, we are not at liberty to conclude that Congress intended that any alien, no matter how long a resident of this country, or however well disposed toward our Government, must be deported, if at any time in the past, no matter when, or under what circumstances, or for what time, he was a member of the described organization. In the absence of such expression we conclude that it is the present membership, or present affiliation — a fact to be determined on evidence — which bars admission, bars naturalization, and requires deportation. [Italics supplied.]
The court then considered the legislative history of the statute and pointed out that the 1918 act eliminated the time limitation of 5 years after entry contained in a previous statute. The court concluded that it was the purpose of Congress to remove the time limitation, and not to make past misconduct a ground of deportation.
This Board in the A---- case cited Kessler v. Strecker in support of its holding that the clause in section 19 relating to the practice of prostitution did not require deportation for past misconduct. As we pointed out, the word "found" appears in this clause as well as in the statutory provision considered in Kessler v. Strecker. This word does not appear in the following clauses in section 19, with which we are here concerned. Too much emphasis, however, should not attach to this distinction. Justice Roberts in the Strecker decision did not stress the meaning of the word "found" as implying present conduct, that is, as meaning "discovered." He regarded the statute as if it read: "Any alien whom the Secretary of Labor finds." The opinion argues that since Congress did not clearly state its intention to require deportation for past misconduct, the statute should not be given this effect. The absence of the word "found," therefore, in the section 19 clauses here involved should not be regarded as implying in itself that Congress intended to make past misconduct a ground of deportation.
The Board's decision in the A---- case relied primarily on the interpretation given the word "found" appearing in that clause in section 19 relating to persons found practicing prostitution in two unreported decisions in 1928 by the United States District Court for Massachusetts ( Moore v. Tillinghast, 55617/927 and Cronin v. Tillinghast, 55656/481), and the administrative acceptance of these decisions. In sustaining a writ of habeas corpus in the Moore case, the court said:
The Government contends that the word "found" is equivalent to "proved to have been." In my opinion this contention is unsound. The idea expressed by the statute is that the alien must be discovered as an inmate. It was evidently framed with the idea that in some way, through a raid by the police or in a similar manner, an alien of immoral habits would be "found."
However this may be, the statute relates to the present time, and not to the past * * *. The unsoundness of the contention of the Government is shown clearly by the fact that if it is correct a person who had been immoral in her youth might be deported when she had reformed and had been leading a virtuous life for many years.
The Assistant Secretary of Labor in a memorandum dated October 1, 1928, recommended against an appeal in these cases.
In view of the opinion of the District Court of Hawaii in Matter of Shigematsu Umeno, 3 United States District Court Hawaii 481, there is room for difference of opinion regarding Judge Lowell's holding on the meaning of the word "found" as used in the act. However, consistency and interpretation of the language of the statute would seem to require that the alien to be deported must be found; that is, ascertained to be by the Secretary of Labor, or actually taken by the police or the immigration officers or in a similar manner, practicing prostitution or an inmate of a house of prostitution at the time taken into custody, and it is extremely doubtful that the contention can be maintained that an alien is subject to deportation or that it becomes the duty of the Secretary to deport any alien whose testimony shows that at some indefinite time in the past she was an inmate of a house of prostitution or practiced prostitution.
Assistant Attorney General Luhring subsequently agreed that "this seems to be a reasonable construction of the statute," and the Solicitor General directed that no appeal be taken.
Despite these statements, the Service apparently pursued an administrative practice of regarding the clause relating to prostitution as applying to past conduct. (See memorandum from Commissioner Carusi to Assistant Attorney General Caudle on the Frescas case, Nov. 21, 1945, mentioned on p. 662.)
The Moore opinion treats "found" as meaning "discovered," but the court goes on to say, "However this may be, the statute relates to the present time, and not to the past." The memorandum by the Assistant Secretary of Labor agrees that the statute refers to present misconduct, and treats "found" as meaning "ascertained." We think that the reasoning of the court and of the Assistant Secretary of Labor are in substantial harmony with the reasoning of Justice Roberts in the Strecker case.
We have considered the meaning of the word "found" as it appears in the clause relating to prostitutes involved in the A---- case, and we have concluded that the absence of this word in the clauses which follow is not enough, in itself, to justify a holding that these clauses make an alien deportable for past conduct. Nevertheless, we do not think the Strecker ruling is controlling here. Even in the A---- case, in which we cited Kessler v. Strecker and quoted its language with approval, we relied primarily on the Moore and Cronin cases, supra. These were the only court decisions squarely in point. Here the only court ruling of this nature is the Vicchitto case, supra.
We are impressed by the fact that over a long period of years there has been a well-established and consistent administrative practice to construe the clauses here involved as requiring deportation for past misconduct. Although the validity of this interpretation seems never to have been tested in court, with the exception of the Vicchitto case, the courts have interposed no objection in those cases in which the question was implicit. Congress amended the 1918 act in 1940 to require deportation for past membership in proscribed organizations, designedly "to meet the requirements indicated by the Supreme Court" in Kessler v. Strecker, but failed to make a similar amendment to the clauses here in question.
See cases cited supra, note 8.
Alien Registration Act of 1940, sec. 23; see 76th Cong., 1st sess., H. Rept. 994, S. Rept. 1154.
On this score it might be urged that Congress did not intend the aliens referred to in these clauses to be deportable for past conduct. But we believe that in view of the well-established administrative interpretation, the failure of Congress to amend should be regarded as approving that interpretation. We must not disregard the following observation of the Supreme Court found in Kelly v. Hedden, 124 U.S. 236:
In view of the foregoing facts the case comes fairly within the rule often announced by this court, that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.
In addition to the administrative construction, we have a court decision squarely in point. The Vicchitto case deals with the specific statutory provisions here involved, and the district court decision was affirmed by the circuit court of appeals. In the absence of other judicial precedent, we shall be governed by the conclusion reached in that case. Findings of Fact: Upon the basis of all the evidence presented, it is found:
There is one remaining consideration which might indicate that Congress intended aliens such as respondent to be deportable. As stated above, the statutory provisions for deportation of aliens who assist prostitutes or derive benefit from their earnings first appear in the act of 1910. These provisions were enacted by Congress on the recommendation of the Immigration Commission which had recently completed an exhaustive study of immigration problems (2 Abstracts of Reports of the Immigration Commission (1911) p. 327). The Immigration Commission in its report and the sponsors of the legislation in the House of Representatives emphasized not only that there was a large number of alien prostitutes, who were undesirable residents of this country, but they also stressed that the procurers and managers of houses of prostitution who exploited and lived on the earnings of prostitutes were a most despicable class of individuals (see supra, pp. 334, 339, 345; 45 Cong. Rec. 547, 550. See also Report of Commissioner General of Immigration, 61st Cong., 2d sess., S. Doc. 214, p. 14). This might lead to the conclusion that Congress intended to differentiate between the prostitutes themselves and the aliens who exploited them by giving the prostitutes an opportunity to reform, but insisting on the deportation of a person who at any time had assisted a prostitute or derived benefit from her earnings. The difficulty with this suggestion is that it gives an unwarranted importance to the appearance of the word "found" in the first clause and its absence in the latter clauses.
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That in 1926, for a period of a month or two, the respondent permitted a woman to use premises under his control for the purpose of practicing prostitution, and in return be received from her a share of her earnings derived from prostitution;
(3) That the warrant of arrest in this proceeding, dated January 29, 1943, was served on respondent March 8, 1943.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, respondent is subject to deportation on the ground that he has received, shared in, or derived benefit from the earnings of a prostitute;
(2) That under section 19 of the Immigration Act of 1917, respondent is subject to deportation on the ground that he has assisted a prostitute;
(3) That under section 19 of the Immigration Act of 1917, respondent is subject to deportation on the ground that he has managed a house of prostitution;
(4) That under section 20 of the Immigration Act of 1917, respondent is deportable to Italy at Government expense.Other Factors: Respondent was employed at the time of the hearing as a janitor. The file contains police certificates and affidavits by local government officials and business men showing that since respondent's release from prison in 1931 his record has been good.
In view of the ground of deportability, respondent is not eligible for discretionary relief (Immigration Act of 1917, as amended, sec. 19 (d)).
Order: It is ordered that respondent be deported to Italy at Government expense on the charges stated in the warrant of arrest.
I approve the reasoning and the conclusion reached in this case by the dissenting members and therefore reverse the decision made and the order entered by the majority of the Board.
I am constrained to dissent from the majority's position that the clauses here involved should be construed to require deportation although the proscribed conduct took place 17 years prior to the beginning of deportation proceedings. This alien entered the United States in 1912. In 1926 for a period of a month or two, he permitted a woman to use premises under his control to practice prostitution. He shared in her earnings. In 1943 a warrant of arrest was served in deportation proceedings. From the time of his misconduct in 1926 to date the subject's record has been good.
It seems to me that the reasoning in Kessler v. Strecker, 307 U.S. 22 (1939) is conclusive on the question here involved. As the majority points out, Justice Roberts reasoned that the statute should not fairly be construed to require deportation for past misconduct, in the absence of clear language to that effect. This reasoning is applicable here, since the statutory provisions are of a kind closely similar to those construed in the Strecker case. To paraphrase the language of Justice Roberts: In the absence of a clear and definite expression, we are not at liberty to conclude that Congress intended that any alien, no matter how long a resident of this country, must be deported, if at any time in the past, no matter when, or under what circumstances, or for what time, he engaged in the proscribed conduct. The clauses are phrased in the present tense, and Congress could easily have expressed a clear intention to deport for past conduct by providing, for instance, "any alien who assists, or has at any time assisted * * *"
In the Alien Registration Act of 1940 Congress amended the statutory provisions considered in the Strecker case, to require deportation for past conduct. But although in the same statute it amended section 19 of the Immigration Act of 1917, it failed to change the language relating to prostitutes, or the following clauses. This, to me, is a strong indication that Congress did not intend the aliens referred to in these clauses to be deported for past misconduct.
The rule that a failure to amend operates to confirm a consistent administrative interpretation is inapplicable for two reasons: (1) There is no indication that Congress was aware of any such administrative construction; and (2) the Strecker ruling showed that the administrative interpretation was wrong, or at the very least cast doubt on its validity. Cf. Girouard v. United States, 90 L. Ed. 776, 781 (1946): "It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law. We do not think under the circumstances of this legislative history that we can properly place on the shoulders of Congress the burden of the court's own error."
Furthermore, as the majority concedes, its holding is in direct conflict with the A---- case. There is no warrant for differentiating between the clause relating to prostitutes and the three clauses which follow. The majority ruling leaves the law in the incongruous position of allowing a prostitute to reform but requiring deportation of an alien 17 years after he assisted a prostitute, although his conduct since that time has been irreproachable.
An additional absurdity would be that an alien "found * * * connected with the management" of a house of prostitution would not be deportable for past misconduct while an alien who "manages" or "is employed by, in, or in connection with" a house of prostitution would be deportable for past misconduct.
In Moore v. Tillinghast (Mass. 1928), Service file 55617/927, Judge Lowell sustained a writ of habeas corpus in a case where the alien practiced prostitution prior to the service of the warrant of arrest. He stated:
* * * The statute relates to the present time, and not to the past * * *. The unsoundness of the contention of the government is shown clearly by the fact that if it is correct a person who had been immoral in her youth might be deported when she had reformed and had been leading a virtuous life for many years.
A similar ruling was made by Judge Lowell in Cronin v. Tillinghast (Mass. 1928), Service file 55656/481.
In recommending against appeal from Judge Lowell's orders the Solicitor of Labor stated on October 1, 1928:
* * * it is extremely doubtful that the contention can be maintained that an alien is subject to deportation or that it becomes the duty of the Secretary to deport any alien whose testimony shows that at some indefinite time in the past she was an inmate of a house of prostitution or practiced prostitution.
Assistant Attorney General Luhring, on October 6, 1928 (D.J. file 39-36-137) agreed that "this seems to be a reasonable construction of the statute."
This view was subsequently approved by this Board in Matter of A---- A.R. 2603068 (June 12, 1945) and Matter of K---- 6035483 (June 25, 1945). On July 12, 1945, and again on November 21, 1945, the Commissioner of the Immigration and Naturalization Service voiced his complete agreement with this interpretation of the statute.
Memorandum of General Counsel dated July 5, 1945.
Christine Frescas v. Andrew Jordan (No. 45C 1663, Northern District of Illinois, Eastern Division, 1945) (Service file No. 56018/588) recently presented the very issue raised in the instant case. The alien was ordered deported in 1929 for managing a house of prostitution, being an inmate and practicing. The misconduct occurred in 1925. Judge Igoe sustained a writ of habeas corpus on October 12, 1945. Commissioner Carusi, in recommending against an appeal, reviewed the question fully in a memorandum dated November 21, 1945, and relying largely on the Strecker ruling, concluded that the statutory provisions do not cover past misconduct. He stated:
It seems to me that the reasoning adopted in construing the statute involved in the Strecker case is inescapably applicable to the statute considered herein. Comparable language is used in both statutes and they seek to reach cognate objectives — the expulsion of groups actually engaged in objectionable activities. Here, too, the excluding provisions relating to prostitutes, set forth in section 3 of the act of February 5, 1917, 8 U.S.C. 136, are phrased in the present tense, and there is no apparent reason for applying a different construction to the provisions governing deportation. And, like the statute before the court in the Strecker case, a reasonable interpretation of the statutory provisions under consideration, viewed in the light of their history and purpose, would seem to preclude deportation predicated only on past misconduct.
The Criminal Division adopted the same view. On January 7, 1946, Assistant Attorney General Caudle advised the Commissioner as follows:
This will advise that on January 3, 1946, the Solicitor General directed that no appeal be taken from the decision of the District Court in this case. In our recommendation that no appeal be taken we relied principally upon the action taken by the then Secretary of Labor, and the then Solicitor General, in the cases of Moore and Cronin v. Tillinghast which arose in the District Court for the District of Massachusetts in 1928, which determined that the construction given to the statute by the court in those cases was a reasonable one. And, in our view, this result was fortified by the decision of the Supreme Court in the case of Kessler v. Strecker.
On February 5, 1946, the General Counsel advised the Acting Commissioner of this action stating as follows:
You will observe that the Solicitor General concluded that no appeal should be taken in the Frescas case. In his memorandum of January 7, 1946, Assistant Attorney General Caudle also explicitly approved the view of this Service that deportation on charges arising out of prostitution may be sustained only on establishment of current misconduct. * * * Manifestly it would be embarrassing to the Department and to the Service if we again are called upon to defend in court a position we deem legally untenable. Indeed, some while ago I was consulted orally by the Department as to a case in which the United States Attorney had solicited instructions. I was asked why we continued to permit such cases to reach the habeas corpus stage.
The majority appears to concede the strength of what I have said; it then proceeds to conclude that all this is outweighed by the Vicchitto case, 27 F. Supp. 440 (D. Conn. 1938), aff'd per curiam, 104 F. (2d) 1023 (C.C.A. 2d, 1939). That decision deals only with the alien's contention that the general statute of limitations applies; it does not consider the question of the intent of Congress, with which we are here concerned. By way of precedent, the Strecker ruling by the Supreme Court, which, incidentally, is more recent than the Vicchitto case, is far stronger. The Department's recent ruling in the Frescase case is likewise far more persuasive.
Kessler v. Strecker was decided April 17, 1939. The per curiam decision by the Circuit Court of Appeals in the Vicchitto case is dated April 18, 1939. It cannot be assumed that that court considered the Strecker ruling in reaching its decision.
I am convinced that the three clauses in section 19, beginning with "who shall receive" and ending with the clause relating to importation for the purpose of prostitution, provide for deportation only where the alien's conduct is reasonably contemporaneous with his arrest in deportation proceedings. This view is in harmony with the A---- and F---- cases and carries out the intent of Congress, as shown by Kessler v. Strecker. I think the majority has reached an incongruous result by following blindly a court decision which does not even touch on the issues before us here.
In the two following clauses the ground of deportability is not the alien's conduct. In the first it is his reentry after deportation as a member of the "immoral" classes, while in the second it is his conviction and imprisonment under a specified criminal statute. With respect to these two clauses the alien is deportable irrespective of the time when the ground of deportation arose, and there is nothing in my reasoning which leads to a contrary result.
The view of the majority is in conflict with that expressed by the Commissioner and the Criminal Division. To sustain it would mean that this alien who has been here since 1912 would be subject to deportation upon a warrant issued in 1943 based upon misconduct which occurred for a 1- or 2-month period in 1926. Such result is unreasonable. It is not warranted by justice or by the statute. It will force the Department into the embarrassing situation of defending a legally untenable position in habeas corpus proceedings. It is all the more unfortunate to reach such result in view of the Department's recent ruling to the contrary on this very subject. I, therefore, vote to cancel the instant proceeding in accordance with the views recently adopted and approved by the Department.
I concur in the reasoning and conclusions advanced in the dissenting opinion of J. Wasserman, Member.
In accordance with the provisions of title 8, Code of Federal Regulations, section 90.12, this case is certified to the Attorney General for review of this Board's decision on the ground that a dissent has been recorded, and as a question of difficulty.