E-080924
Decided by the Board January 14, 1954
Pardon — Section 241 (b) (1) of the Immigration and Nationality Act — Legislative pardon not effective — Evidence.
(1) A legislative pardon, in this case under the law of Pennsylvania (sec. 181 of the act of March 31, 1860), is not effective to prevent deportation as to an offense for which deportability is charged under the provisions of section 241 (a) (4) of the Immigration and Nationality Act.
(2) Where the witness in a deportation proceeding resides at a great distance or is physically unable to appear at the hearing, depositions or interrogatories provide a reasonable opportunity to cross-examine such witness. Affidavits of witnesses in deportation proceedings are properly admissible into evidence when, after requesting cross-examination of such witnesses and accepting cross-examination by depositions or interrogatories, counsel for the respondent submits a written waiver of the taking of depositions of the witnesses.
CHARGES:
Warrant: Act of 1952 — After entry, convicted of two crimes involving moral turpitude — Attempt to enter a building with intent to commit a felony and violation of Explosives Act of 1927 (two counts) — malicious destruction of property by explosives.
Lodged: Act of 1952 — After entry, convicted of two crimes involving moral turpitude — Attempt to enter building with intent to commit a felony and malicious destruction of property by explosives.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer finding the respondent deportable on the lodged charge and ordering his deportation. Exception has been taken both to the finding of alienage and deportability.
The respondent is a married male, 55 or 56 years of age. To establish alienage, the Government presented certain documents and sworn statements which tend to establish that respondent is a native and citizen of Italy. These documents will be considered individually.
There was entered into evidence an alien registration form executed by the respondent on October 9, 1942, in which he stated that he was born in Italy and was a citizen or subject of Italy (as far as he could learn). In an application for a certificate of identification dated October 19, 1942, also entered in evidence, the respondent similarly stated that he was a citizen or subject of Italy (as far as he could learn). In 1951, he submitted an alien's address report in which he alleged that he was a national of Italy. He submitted a similar report in 1953. In a sworn statement made by him as late as June 2, 1953, respondent stated in reply to the question, "When and where were you born?"-A. "September 8 or 9, 1898 or 1897, in Italy. I don't know the town." When asked, "Of what country are you a citizen?" He stated, "I don't know." All of these documents were admittedly executed voluntarily by the respondent prior to the institution of these proceedings.
The record also contains a sworn statement executed on May 1, 1953 by M---- G---- K----, also known as J---- F---- K----, nee R----, the respondent's sister, residing in Denver, Colo., in which she swore that she was born in Provincia De Casarta, Italy, on May 28, 1896; that her parents' names were F---- and F---- R----; and that she last entered the United States at New York when she was 3 or 4 years old, at which time she was accompanied by her mother, father, sister C----, and brother J----, or G----. She further stated that her brother, J---- was born in the Provincia De Casarta, Italy, about 14 months after she was born; that he lived with her and the family in New York City until about 1 year before her marriage, which occurred in 1917 or 1918, when he went to Pittsburgh; and that he never left the United States since his first entry. To the best of her knowledge, her parents never became citizens of the United States. An affidavit executed on May 26, 1953, by the respondent's uncle, G---- R----, residing in Queens, N.Y., states that G---- R---- is the son of the affiant's brother, F----; that he was born in Alvito, Italy, about 1900; that he, the affiant, was present in F----'s house when G---- was born; that F---- came to the United States about 1901 or 1902, and shortly thereafter sent for his wife and three children — G----, M----, and J----. The statements of the respondent's sister and uncle, despite minor discrepancies in certain details, indicate that the respondent is a native of Italy, and came to the United States at an early age.
Counsel urges that these statements were improperly admitted into evidence because he was not afforded an opportunity to cross-examine the sister and uncle. The record indicates that when counsel objected to the introduction of the sworn statements into evidence, without an opportunity for cross-examination, the special inquiry officer asked him whether cross-examination by depositions or interrogatories would be satisfactory, and that he stated it would. The statements in question were thereupon marked for identification pending arrangements for the taking of the depositions or interrogatories. Subsequent to the hearing, however, counsel submitted a written waiver of the taking of depositions stating that because of the age and condition of the respondent's uncle, he was not in a position to give any testimony. No reason was advanced for not proceeding with the sister's deposition. The affidavit of the respondent's uncle and the sworn statement of respondent's sister previously marked for identification, were thereupon entered into evidence. This action of the special inquiry officer was proper.
As a general rule, an alien is entitled to a reasonable opportunity to cross-examine witnesses, section 242 (b), Immigration and Nationality Act; 8 C.F.R. 242.53 (c); Gonzales v. Zurbrick, 45 F. (2d) 934 (C.C.A. 6, 1930). What constitutes such reasonable opportunity depends upon the facts and circumstances of the individual case. Although in some situations nothing short of actual confrontation of the witness at the hearing may satisfy this requirement, in other cases, such as those where the witness resides at a great distance, or is physically unable to appear at the hearing place, depositions or interrogatories will suffice. Singh v. District Director, 96 F. (2d) 969 (C.C.A. 9, 1938), cert. den. 308 U.S. 629. In the instant case, the respondent's sister lives in Denver. His uncle, who resides in New York, is old and infirm. Under the circumstances, in permitting counsel to take the testimony of these witnesses by depositions or interrogatories, the special inquiry officer afforded him an opportunity for cross-examination which was reasonable under the circumstances. In view of the fact that counsel, at the hearing, expressly consented to such procedure, he cannot be heard to complain now. Under 8 C.F.R. 242.54 (b) the special inquiry officer is authorized to enter of record "any statement, oral or written, which is material and relevant to any issue in the case, previously made by the respondent or any other person during any investigation, examination, or hearing." Under this regulation, the special inquiry officer was justified in entering into evidence the affidavit of the uncle and the sworn statement of the sister, upon the receipt of counsel's letter waiving the taking of the depositions of those persons.
Objection was also made at the hearing to the introduction into evidence of a letter written on September 22, 1942, by a former attorney of the respondent, to the central office of the Immigration and Naturalization Service in connection with prior proceedings then pending against the respondent. This letter indicates that as a result of an investigation as to the respondent's nationality conducted by the said attorney, the attorney concluded that the respondent was born in Italy and brought to this country when he was an infant. Attached to this letter are two school certificates, one from Public School 158, Borough of Manhattan, city of New York, dated September 17, 1942, showing the date of birth of J---- R---- as September 9, 1898, and indicating that he entered that school in September 1904 and left in October 1912. In this certificate the name of his father is given as "F----". The other certificate dated September 18, 1942, is from Lincoln Hall, Lincolndale, N.Y., the successor to the New York Catholic Protectory, and states that according to the records of the latter institution, J---- R---- was committed to said institution on April 1, 1910, by the children's court. According to said school record, J---- R---- was born in Italy on September 9, 1897, and his parents' names were indicated as F---- and F---- R----, both born in Italy. According to information given by the respondent, the two school records in question apparently relate to him. He also admitted that the investigation in question was conducted by the attorney at his request, that upon its completion he was advised by said attorney that he was born in Italy, and that he received a copy of the attorney's letter dated September 22, 1942. Viewed against this background, the letter of the respondent's attorney may be considered in the nature of an admission of respondent's alienage, binding upon the respondent. Matter of K----, A-5204481, March 18, 1953, Int. Dec. No. 427; Wigmore on Evidence, vol. IV, sec. 1078 (3d ed., 1940).
At the hearing, the respondent testified that he was born on September 9, 1897, or 1898, but he did not know where his birth occurred. He stated that the names of his parents, both of whom are now deceased, were F---- or F----, and F---- R----, and that he has two sisters, M---- K---- and C---- R----. He further stated that he believes his father was naturalized in the United States because he voted in New York City before returning to Italy about 1919 or 1920. The respondent's claim to United States citizenship is based on information allegedly received from his uncle, G---- R----, subsequent to the institution of these proceedings, on the basis of which he believes he was born in the United States. According to his testimony, after he was served with a warrant of arrest, he phoned the house of his uncle's daughter, with whom the uncle was staying, to inquire about his (respondent's) birthplace and was told by the daughter that someone in the house had asked the uncle and was informed that the respondent was born in the United States, somewhere in New York. Apart from this vague phone conversation, the respondent has offered no evidence to support his claim to citizenship, nor to controvert the evidence presented by the Government.
A careful review of the record reflects that the Government has fully sustained its burden of establishing respondent's alienage by reason of the documentary evidence and sworn statements previously referred to. The respondent's belated unsupported claim to United States citizenship is insufficient to overcome the effect of such evidence, United States ex rel. Barilla v. Uhl, 27 F. Supp. 746 (D.C.N.Y., 1939), aff'd, 108 F. (2d) 1021 (C.C.A. 2, 1940). We conclude, therefore, that there is reasonable, substantial and probative evidence of record to sustain the finding of the special inquiry officer that the respondent is a native and citizen of Italy who last entered the United States at New York about 1899 or 1900 on an unknown vessel.
We turn now to the issue of deportability. Although the respondent has been arrested on a number of occasions, deportability is predicated on two criminal records which were entered in evidence and admittedly relate to him. The first is a certified copy of an indictment, conviction and sentence which indicates that the respondent was indicted on September 22, 1926, in the Court of Quarter Sessions of the Peace for the County of Allegheny, Pa., for the offense committed on July 5, 1926, of unlawfully attempting to break and enter a building with intent to commit a felony therein, viz, larceny. On October 12, 1926, he was found guilty of said crime and sentenced to pay a fine of 6 1/4 cents and costs and to undergo imprisonment of not less than 1 1/2 years or more than 10 years in the Western Penitentiary. By subsequent order of the Court of Quarter Sessions and O. and T. of Allegheny County entered on June 11, 1945, it was decreed that the legal maximum for the offense of which the respondent was found guilty was a period of 7 years and not 10 years; that the maximum sentence, therefore, expired on October 12, 1933; that respondent's recommitment on December 11, 1937, for violation of parole, to serve the unexpired balance of the maximum sentence was improper; and that the respondent should be discharged from parole. The crime of attempting to unlawfully enter a building with intent to commit larceny therein involves moral turpitude, Matter of M----, A-2509877 2 IN Dec. 721, Atty. Gen. 1946; United States ex rel. Meyer v. Day; 54 F. (2d) 336 (C.C.A. 2, 1931).
The record further reflects that on September 11, 1933, the respondent was indicted in the Court of Quarter Sessions of the Peace of Allegheny County, Pa., on two counts: First, wantonly, willfully and maliciously attempting to do bodily harm to persons by use of explosives; and second, wantonly, willfully and maliciously attempting to destroy property by the use of explosives, both committed on May 30, 1933, in violation of the Explosives Act of 1927. On April 9, 1935, respondent was found guilty on the second count only and on December 18, 1935, was sentenced to pay a fine of 6 1/4 cents and costs and undergo imprisonment of not less than 2 years, nor more than 4 years in the Allegheny County Workhouse. The respondent testified that he served 2 years and subsequently was returned for further sentence because of violation of parole and was thereafter released in 1939. The crime of wanton and malicious destruction of property is a crime involving moral turpitude, Matter of M----, 55830/408, 3 IN Dec. 272, B.I.A. 1948. Since the respondent was convicted on only the second count of the indictment, the lodged charge, rather than the warrant charge, is deemed appropriate.
The pertinent portion of this statute in effect at the time of the respondent's conviction provided as follows (section 141 of the act of March 31, 1860, Public Law 382, as amended by the act of April 20, 1927 (18 P.S. 3181)):
MALICIOUS MISCHIEF BY EXPLOSIVES
Whoever unlawfully, wantonly, willfully, and maliciously, by the explosion of gunpowder, dynamite, nitroglycerine, or other explosive substances, placed or thrown in, into, upon, under, against, or near, any buildings, structure, vessel, automobile, truck, engine, motor, car, vehicle, property, machinery, tools, goods, fixtures, or chattels, does or attempts to do bodily harm to any person, or destroys, or attempts to destroy, damages or injures any such property, whether or not injury to any person or damage or injury to any such property results, is guilty of a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000) and to undergo an imprisonment, by separate or solitary confinement and labor, not exceeding 10 years or both.
Counsel urges that despite the respondent's convictions for the two crimes mentioned, by reason of the fact that he served the sentences thereunder, he was fully pardoned under the law of Pennsylvania, and therefore not amendable to deportation at the present time. This argument involves a consideration of the effect of the Pennsylvania pardon statute upon an alien's deportability, where deportability is predicated on conviction for a crime or crimes involving moral turpitude committed after entry into the United States.
Section 181 of the act of March 31, 1860 (19 Purdon's Pennsylvania Statutes 893), prior to its repeal, read as follows:
Where any person hath been or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted: Provided, That nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony or misdemeanor, and that the provisions of this section shall not extend to the case of a party convicted of willful and corrupt perjury.
This section was repealed by section 1201 of the act of June 24, 1939, Public Law 872, effective September 1, 1939.
It has been held that a person who has completely endured the punishment imposed upon him in accordance with the provisions of section 181, has been "pardoned" within the meaning of that term as used in section 19 of the Immigration Act of 1917, as amended, Perkins v. United States ex rel. Malesevic, 99 F. (2d) 255 (C.C.A. 3, 1938).
The pardon so conferred has been construed as a "legislative," as distinguished from an "executive" pardon, Matter of S----, 55845/168 2 IN Dec. 588, Atty. Gen. 1946. We assume for the purpose of this decision that by virtue of the court decree entered on June 11, 1945, previously referred to, discharging the respondent from parole nunc pro tunc, the respondent had fully endured the punishment for the crime in question prior to September 1, 1939, and had therefore received a legislative pardon. The record is not entirely clear as to when the respondent was released from the jurisdiction of the penal authorities in connection with the second crime. If, on September 1, 1939, when the pardon statute was repealed, he was still subject to the restraint imposed upon him, then he could claim no benefits thereunder for immigration purposes, Matter of S----, ( supra); United States ex rel. Forino v. Bromberg, 61 F. Supp. 1021 (W.D. Pa., 1945). His testimony indicates that he was confined for 2 years and released from parole in 1939. The conviction record reflects that sentence was imposed upon him on December 18, 1935, for a period of 2 to 4 years. It would therefore appear that he was subject to parole supervision of the Pennsylvania authorities until December 18, 1939, and therefore did not obtain a pardon for the second crime. However, for the purpose of this decision, we need not consider this question further, for if the pardon for the crime committed in 1926 is effective to eliminate that crime as a basis of deportability, then the alien would not be amenable to deportation on the ground of conviction after entry of two crimes involving moral turpitude.
For the reasons stated below, we feel that although the legislative pardon was effective to prevent deportation under the act of 1917, it is no bar to deportation under the Immigration and Nationality Act.
Section 19 (a) of the Immigration Act of February 5, 1917, as amended, after setting forth the classes of aliens who are subject to deportation provides as follows: "* * * the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned * * *". This provision makes no distinction between a legislative and executive pardon, Perkins v. United States ex rel. Malesevic ( supra); Mercer v. Lence, 96 F. (2d) 122 (C.C.A. 10, 1938). Section 241 (b) of the Immigration and Nationality Act, on the other hand, provides as follows: "The provisions of subsection (a) (4) respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the governor of any of the several States, * * *." We construe this section to represent a change in the existing law. It is a canon of statutory construction that legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, as well as the judicial interpretations thereof; and that if a change occurs in legislative language, a change was intended in legislative result, Sutherland, Statutes and Statutory Construction, volume 2, section 4510 (1943 ed.). It must be presumed, therefore, that when Congress enacted the Immigration and Nationality Act, it was aware of the judicial decisions which construed section 19 (a) of the 1917 act to include legislative pardons. This presumption is corroborated by reference to the legislative history of the Immigration and Nationality Act. By limiting the benefit of section 241 (b) to presidential and gubernatorial pardons only, Congress has manifested an express intention to grant exemption from deportation only to those aliens who have obtained an executive pardon. We therefore conclude that a legislative pardon, such as that obtained by the respondent, is ineffective to prevent deportation under section 241 (a) (4) of the Immigration and Nationality Act.
See S. Rep. 1515 (81st Cong., 2d sess.), a voluminous report containing the basic findings of the Senate Judiciary Committee in respect to the proposed revision of the immigration and naturalization laws, which discusses (at p. 637) the effect of presidential, gubernatorial, and legislative pardons under sec. 19 (a) of the act of 1917.
H. Rep. 1365 accompanying H.R. 5678 (82d Cong., 2d sess.), subsequently enacted, with minor changes, as the Immigration and Nationality Act refers (at p. 27) to S. Rept. 1515 as containing the basic findings, and incorporates some of these findings in its abbreviated report.
Counsel also argues that since the respondent's pardon was obtained prior to the enactment of the Immigration and Nationality Act, that he obtained a vested right thereunder which rendered him immune to deportation thereafter. We find that argument to be untenable. The power of Congress to enact a statute to render aliens residing in the United States amendable to deportation because of past conduct is no longer open to question, United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950). Since deportation proceedings are not criminal in character, the proscription against ex post facto laws does not apply. Harisiades v. Shaughnessy, 342 U.S. 580 (1952); Mahler v. Eby, 264 U.S. 32 (1924). The clear intention of Congress to make the deportation provisions of section 241 of the Immigration and Nationality Act retroactive in effect is apparent from a perusal of section 241 (d) of that act which reads as follows:
Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this act.
The language of this subsection is broad enough to embrace new classes of deportable aliens as well as to remove preexisting bars to deportation, United States ex rel. Marcello v. Ahrens, 113 F. Supp. 22 (E.D. La., 1953); United States ex rel. Barile v. Murff, 116 F. Supp. 163 (D.C. Md., 1953). In the absence of an express exemption set forth in section 241, all aliens falling within the designated classes enumerated in that section are rendered amenable to deportation, regardless of when the facts, on which deportability is predicated, arose. Section 241 (a) (4) of the act renders deportable any alien "who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." Reading that section in conjunction with section 241 (d), the respondent clearly appears to be amenable to deportation at the present time.
Nor can the respondent find any salvation in the savings clause (sec. 405 (a)) of the Immigration and Nationality Act. That section, insofar as pertinent, states:
Nothing contained in this act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * *
Savings clauses in statutes are generally strictly construed, Sutherland, Statutes and Statutory Construction, volume 2, section 4937 (1943 ed.). Even assuming that the respondent's immunity to deportation under the 1917 act might be termed a "status" or "condition" as those terms are used in section 405 (a), we nevertheless feel that such immunity is not preserved by that section. Under section 403 (a) (13) of the Immigration and Nationality Act, the Immigration Act of February 5, 1917, as amended, is expressly repealed. Section 405 (a), in preserving certain matters arising under the statutes repealed by the Immigration and Nationality Act, expressly states that such matters are considered in force and effect, unless "otherwise specifically provided therein." This condition contains an express limitation on the scope of the savings clause. Since, as has been pointed out above, Congress has specifically provided for the deportation of aliens falling within the purview of section 241 (a) (4) of the Immigration and Nationality Act, regardless of when the crimes were committed, unless the aliens have received executive pardons, it has manifested an intention not to preserve any immunity for aliens in the respondent's position. In an analogous situation, we have held that an alien convicted in 1943 of a violation of a law relating to traffic in narcotics to be deportable under the Immigration and Nationality Act, despite the fact that at the time of such conviction the court made a timely recommendation against deportation and the alien would not have been deportable under the act of 1931, as amended, because of such recommendation, Matter of I----, E-25308, (A-4771776) Int. Dec. No. 469, July 21, 1953. We likewise hold that the respondent obtained no immunity to deportation under the Immigration and Nationality Act by reason of the legislative pardon which he received.
We therefore conclude that the respondent is subject to deportation on the lodged charge, and since no application has been made for discretionary relief, we find no error in the order of the special inquiry officer directing deportation. Consequently, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.