A-5957951.
Decided by Board November 25, 1946. Appeal by Central Office December 26, 1946. Decided by Board January 15, 1947. Ruling by Attorney General February 6, 1947.
Prostitution — Timely service of warrant of arrest — Section 19 of the Immigration Act of 1917 — Evidence — Reopening of hearing.
Where a warrant hearing record failed to clearly establish that the alien had discontinued proscribed acts in connection with prostitution charges under section 19 of the Immigration Act of 1917, and such hearing was conducted before the present interpretation as to such charges (i.e., warrant of arrest must be served within a time reasonably proximate to the commission of the proscribed act), it is not unreasonable to order the hearing reopened for further evidence where the facts suggest the alien may have continued her connection with the business of prostitution to a time very close to the date of the service of the warrant of arrest, especially where the proscribed acts were continued over a long period of time heretofore.
CHARGES:
Warrant: Act of 1917 — Found managing a house of prostitution.
Act of 1917 — Receiving, sharing in, and deriving benefit from the earnings of a prostitute.
Lodged: Act of 1917 — Found practicing prostitution.
BEFORE THE BOARD
(November 25, 1946)
Discussion: This alien was ordered deported to Italy on the charges stated above.
The conduct on the part of the alien which resulted in her arrest in these proceedings occurred prior to January 1941. Since that time she has been in no way associated with matters involving prostitution. Since January 1941 she has been employed by various concerns and presently works for the Swan Manufacturing Co., Brooklyn, N.Y. She makes her home with her niece in that city.
In Matter of P----, 1217330, approved by the Attorney General November 7, 1941, we held that warrant of arrest in deportation proceedings must issue within a time reasonably proximate to the alleged misconduct on the part of the alien. In this case the warrant of arrest issued April 29, 1942 and was served May 8, 1942. In view of the fact that the warrant of arrest issued more than a year from the time of alleged misconduct on the part of the alien, and since it appears that she has been following legitimate employment since that time, proceedings will be canceled.
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn and proceedings canceled.
Discussion: The respondent, a native and citizen of Italy, about 45 years of age, has resided in the United States continuously since July 27, 1907, when she arrived as a passenger on the S.S. Citta Di Milano and was lawfully admitted for permanent residence. On August 30, 1942, the Board of Immigration Appeals ordered the respondent deported to Italy as to all of the grounds stated above. However, on November 25, 1946, the Board ordered the outstanding order and warrant of deportation withdrawn and the proceedings canceled.
The question presented is whether the order of the Board of Immigration Appeals withdrawing the outstanding order and warrant of deportation and canceling the proceedings should be reviewed.
Deportation proceedings were commenced by the issuance of a warrant of arrest on April 29, 1942, and the service thereof on the respondent on May 8, 1942. The only evidence supporting the charge that the respondent was found practicing prostitution after entry, is her own statement to this effect. She testified that she was inmate of a house of prostitution for about 3 months when she was 17 years of age. However, she denies that she practiced prostitution at any subsequent time. As the evidence relates to acts which occurred about 24 years prior to the service of the warrant of arrest, this charge clearly cannot be sustained ( Matter of A----, A-2603068, June 12, 1945). However, the evidence relating to the other charges indicate that she was connected with the business of prostitution within a time reasonably proximate to the institution of the deportation proceedings by the service of the warrant of arrest.
According to the respondent's own testimony, she operated a house of prostitution in Scranton, Pennsylvania from 1928 to approximately January, 1941. Furthermore, she testified that the girls employed in her house gave her $7 per week for the rental of a room and in addition paid her 50 cents each time a man came to their rooms for the purpose of prostitution. She had as many as three girls in the house at one time. The respondent readily admitted that during this period she operated houses of prostitution. Although her admissions relate to periods approximately 16 months prior to the service of the warrant of arrest, reliance is not placed solely on respondent's testimony to support the charges contained in the warrant of arrest. In Scranton, Pa., between September 2, 1936 and January 25, 1942, the respondent was convicted upon ten occasions for keeping a bawdy house. The last two convictions occurred on May 19, 1941 and January 25, 1942, and were within 1 year of the commencement of the deportation proceedings. Although respondent denied that she was guilty of the offense for which she was convicted on January 25, 1942, she admitted that she had pleaded guilty. With respect to her conviction on May 19, 1941, she did not even deny her guilt. The respondent admits that for many years she operated houses of prostitution and received a portion of the earnings of prostitutes. The only question presented is whether she continued her connections with the business of prostitution to a time reasonably proximate to the commencement of deportation proceedings as required by the decision in Matter of P----, A-1217330, November 7, 1946.
At the time the hearing under the warrant of arrest was conducted, the present interpretation that the respondent be found connected with the business of prostitution within a time reasonably proximate to the institution of deportation proceedings had not been placed on the statute in question. Therefore, unless the record clearly establishes that the respondent severed all connections with the business of prostitution prior to the service of the warrant of arrest, the hearing should be reopened to determine whether such a severance actually did occur. To order the proceedings canceled merely because evidence which was then deemed unnecessary was not introduced is wholly unwarranted.
The conviction of the respondent for keeping a bawdy house as late as January 1942 creates at least a suspicion that she continued to be connected with the business of prostitution. In addition, she testified at the hearing that she was then renting premises which she owned to a person whom she knew was operating a house of prostitution. Her testimony was as follows:
Q. Can you give me the approximate date on which you discontinued the operation of a house prostitution at 426 Oakford Court, Scranton, Pa.?
A. I bought the premises at 426 Oakford Court, Scranton, Pa. in September 1940. Then I closed the place for a while and fixed it over and I moved out the latter part of January 1941 and have not had any connection with the operation or management of the house of prostitution since that time.
Q. Is that house rented now?
A. Yes.
Q. To whom do you rent?
A. To M---- M----.
Q. Does M---- M---- manage a house of prostitution now?
A. Yes — the last I knew about it.
Q. How much rent does she pay you?
A. $50 a month.
Q. How long has M---- M---- rented the house from you?
A. About 5 or 6 months.
Q. Since January 1941 until 5 or 6 months ago, was the house rented to anyone else?
A. Yes. I rented it to just one other person — J---- C---- or C---- (phonetic).
Q. Did she operate a house of prostitution there?
A. She did — yes.
Q. You had knowledge that she intended doing that when you rented the house to her?
A. I guess I did know it — yes.
Q. How much rent did you receive from J---- C---- or C----?
A. $50 also.
It is conceded that if the relationship between the respondent and M---- M---- and J---- C---- was merely that of landlord and tenant, the charge that the alien was receiving, sharing in, and deriving benefit from the earnings of prostitutes, could not be sustained. Katz v. Commissioner, 245 Fed. 316 (C.C.A. 9th, 1917). It has been held, however, that the relationship between a landlord and a tenant may be of such nature and character as to support a finding that the landlord is so directly motivated by or connected with the business of prostitution as to make such landlord deportable under Section 19 of the Immigration Act of 1917 ( Matter of A----, 56172/959 (January 19, 1945)).
The Government is entitled to an opportunity to introduce evidence establishing that between the alien and her so-called tenants there exists something more than the ordinary landlord and tenant relationship. If it can be established that the alien is presently connected with the business of prostitution by reason of such real relationship, the presumption is warranted that she continued in such business during the 4 months between the date of the last proscribed act presently established by the evidence, and the date of the service of the warrant of arrest.
Because of the interpretation placed upon section 19 of the act of 1917 at the time of the deportation hearing, there was no need to introduce evidence as to the actual relationship between this respondent and the persons she calls her tenants. The change in interpretation since the deportation hearings, the alien's operation of a house of prostitution from 1928 to approximately January 1941, and the alleged leasing by her of the same premises with knowledge that they were to be used for the purpose of prostitution, raise a serious doubt as to whether this respondent severed her connection with the operation of a house of prostitution. Because of such doubt the proceedings should not be canceled but ordered reopened for the introduction of evidence to determine whether the respondent actually severed her connection with the business of prostitution prior to the service of the warrant of arrest.
Order: It is ordered pursuant to 8 C.F.R. 90.3, the case be returned to the Board of Immigration Appeals for reconsideration, and, in the event that it does not see fit to withdraw its prior order withdrawing the outstanding order and warrant of deportation and canceling the proceedings, for certification to the Attorney General.
Discussion: The respondent in this case has resided here for the past 39 years, having been admitted on July 27, 1907. She is a native and citizen of Italy, 45 years of age, divorced. Her parents are deceased. She has a sister, a brother, a nephew and a niece residing in this country and makes her home with the latter. Since January 1941 she has been employed by various concerns and presently works for the Swan Manufacturing Co., Brooklyn, N.Y.
The respondent was ordered deported to Italy on August 3, 1942, on the grounds set forth above. On November 25, 1946, this case was reconsidered on the basis of the holding in the Matter of P----, 1217330 (approved by the Attorney General November 7, 1946) and proceedings canceled. The Commissioner has requested that our decision be reconsidered, and, if no change is made therein, that the matter be certified to the Attorney General.
As stated, our decision of November 25, 1946, to cancel proceedings was reached upon the evidence in the case and the application thereto of the ruling in the P---- decision.
The Central Office admits that on the evidence and the application of the P---- decision proceedings should be canceled. What the Central Office desires is reopening of the case in the hope of discovering evidence which might indicate that acts of prostitution on the part of the alien occurred more recently than those shown by the present record. No investigation has been made by the Service to afford any basis for the belief that more evidence is available.
This Board takes the view that on a record of this kind a reopening on a mere hope that some evidence could be uncovered is unjustified. Accordingly, no change will be made in our order of November 25, 1946, canceling proceedings in this case.
Order: It is ordered that no change be made in the decision of this Board dated November 25, 1946, canceling the proceedings.
As the order of the Board is contrary to the recommendation of the Commissioner, in accordance with section 90.3, title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The decision of the Commissioner of Immigration dated December 26, 1946, is hereby approved and it is directed that this case be remanded to the Commissioner in conformity with said decision.