A-6696752.
Decided by Special Inquiry Officer December 28, 1954. Approved by Board January 27, 1955.
Prostitution — Excludability under section 212 (a) (12) of Immigration and Nationality Act — Engaging in prostitution — Isolated act.
Evidence of alien's conviction of single act of prostitution is insufficient to sustain a charge under sections 241 (a) (12) and 212 (a) (12) of the Immigration and Nationality Act that she had engaged in prostitution after entry since the term "engaged in prostitution" means conduct that is carried on over a period of time although it need not be carried on as a business or as a means of livelihood (Citing Matter of R----, 2 IN Dec. 50).
CHARGE:
Warrant: Act of 1952 — Engaged in prostitution after entry.
BEFORE THE SPECIAL INQUIRY OFFICER
(December 28, 1954)
Discussion: This record relates to a 26-year-old married female, a native and citizen of Canada, who entered the United States for permanent residence on June 1, 1947, as a nonquota immigrant under the provisions of the Act of December 28, 1945 (War Bride Act). Respondent has subsequently made week-end visits to Canada, the last of which occurred in 1951, and was readmitted upon presentation of a border-crossing card. These subsequent entries have not been verified. The ground of deportability asserted against the respondent is that she has, subsequent to her entry, by reason of conduct, behavior or activity, placed herself within a class of persons specified in section 212 (a) (12) of the Immigration and Nationality Act, to wit: aliens who have engaged in prostitution.
Following her admission for permanent residence, respondent was arrested on June 27, 1951, for disorderly conduct. The arrest report indicates that respondent had agreed to commit an act of prostitution. Respondent denies this allegation. She was convicted of disorderly conduct and fined $100. She served thirteen days in jail and thirty days were suspended. Respondent was next arrested on March 2, 1954, for loitering in a tavern. The arrest report indicates she was drinking beer with a man she did not know. While respondent also denies this allegation, she was convicted and given twenty days suspended sentence and placed on probation. Respondent was next arrested on June 2, 1954, for violation of Ordinance 73095-1. The arrest report indicates that she had committed an act of prostitution. Respondent denies this allegation and pleaded not guilty at her trial. She was convicted, however, and sentenced to pay a fine of $100 and serve thirty days in the city jail. All these arrests occurred in the City of Seattle, Washington. Ordinance 73095 is cited at the end of this decision.
The testimony of two of the arresting officers and the police matron was taken regarding this last arrest. It developed that respondent, in company with two other women, was observed "picking up" three soldiers on the night of June 1, 1954; that subsequently, the three couples were observed getting out of a taxi and entering the premises at which the arrest occurred. The two women with the respondent were known to the police as prostitutes. The officers testified to what occurred at the time of the arrest, and the police matron to what occurred at the trial of respondent on June 3, 1954, and June 22, 1954. While respondent pleaded not guilty to the charge in court, and consistently denied during the course of these proceedings that she had committed an act of prostitution, the weight of the evidence is to the contrary. It is concluded from the record that respondent did commit an act of prostitution as charged on June 2, 1954.
Respondent produced three witnesses, H---- H----, who has known the respondent very well during all the period of her residence in the United States; Mrs. C---- G----, who has known respondent seven years; and C---- S----, who has known respondent about three years. The three witnesses had each visited frequently in the home of respondent and knew her children and husband, and the respondent had visited in their homes. Each testified that respondent was a good woman, a good mother, and that they knew of nothing adverse to her character although each knew of her arrests. Each specifically denied any knowledge that would lead them to conclude that respondent was a prostitute or practiced prostitution. I find the testimony of the witnesses credible. It is concluded, that while the record establishes that respondent did commit an act of prostitution on June 2, 1954, it does not establish that she is a prostitute.
Respondent is married to J---- H---- T----, a citizen of the United States and a member of the Armed Forces, now stationed in Korea. She has two American born children, P----, aged seven, and L----, aged five. She and the two children are supported by an allotment from the pay of her husband amounting to $176.90 per month. Respondent supplements this amount by occasional work in laundries and by home embroidery work. Her supplemental income amounts to approximately $25 per month. Respondent testified that this income is sufficient to maintain herself and the children. Respondent has no property or other assets in the United States and has specified Canada as the country to which she would wish to be sent if ordered deported.
Had this charge been urged against the respondent under the prior act, it could not be sustained ( Matter of R----, 2, I. N. Dec. 50; United States ex rel. Mittler v. Curran, 8 F. (2d) 355). The applicable charge under the Act of February 5, 1917, would have been that respondent had been found practicing prostitution subsequent to entry. However, the charge is brought under the provisions of the Immigration and Nationality Act and asserts that respondent by reason of conduct, behavior or activity at any time after entry became a member of any of the classes specified in section 212 (a) (12), to wit: aliens who have engaged in prostitution. While the two charges provide for the deportation of persons who engage in or practice prostitution there has been a change in legislative language. It is a canon of statutory construction that legislative language will be interpreted on the assumption that the legislature was aware of existing statute, 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, Vol. 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 of the Act of February 5, 1917, as it related to prostitutes and the practice of prostitution. It may also be presumed that Congress was aware of the administrative interpretations used in the enforcement of that act.
The most obvious change in the wording of the statute is the elimination of the word "found" and substitution of wording that clearly makes the charge retroactive. This change is not applicable to the instant case as the warrant was issued and served within ten days after respondent was convicted. The matter at issue is the present wording "engaged in" used in lieu of "practice of" prostitution. In a court decision under prior law ( United States ex rel. Mittler v. Curran, 8 F. (2d) 355) the court said:
Practicing prostitution within the meaning of the Act of February 5, 1917, means to pursue as a business or occupation the sale of one's body for carnal intercourse * * * and a single instance, even of sale, may or may not be evidence of `practicing' which the statute requires.
This, and similar decisions were followed by the Board of Immigration Appeals in Matter of R----, 2 IN Dec. 50. Following Sutherland, the Congress intended a different result when it substituted the words "engaged in" for "practicing" prostitution. The different result appears to be that there need be no connotation of prostitution as a business, occupation, or means of livelihood. This result is bolstered by the words used in the same section of the act making an alien excludable who is coming to the United States solely, principally, or incidentally, to engage in prostitution One can hardly engage incidentally in a means of livelihood.
The words "engaging in" and "engaged" have been interpreted by the courts in many cases. In Steinway v. Majestic Amusement Co., 179 F. (2d) 681, 682, the court said:
Each case must be determined on its own facts but the general rule is that to constitute `engaging in' there must be substantial, continuous and regular, as distinguished from casual, single or isolated, acts.
In First National Bank v. Phoenix Mutual Life Insurance Co., 57 F. (2d) 731, 734, it was stated:
`Engaging' was ordinarily held to partake of idea of frequency or continuity with sometimes suggestion of vocational connection.
In Beveridge v. Jefferson Standard Life Insurance Co. ( 197 SE 721, 722; 120 W. Va. 256), "engaged" means to carry on, to conduct, to employ one's self, and does not relate to a single act. To say that one is "engaged" in a thing is to say that the act is continuous. From the above I draw the conclusion that under the new law an alien need not make a business or vocation of prostitution to become a member of a deportable class, nor need the proscribed acts occur within a reasonable past period; they may have occurred at any time subsequent to any entry. But I also find that an alien must engage in prostitution, and that "engage in" means to carry on over a period of time a type of conduct, a pattern of behavior, or form of activity in which sale of the body for carnal intercourse is an integral part, however small that part may be. It does not include an action entered into on the spur of the moment, induced in part by poorly chosen companions, and influenced by an unusual marital situation. It does not include a single isolated act of prostitution.
From the above, it is my conclusion that, while respondent has been indiscreet and poorly advised, if not reckless in her choice of companions, and not condoning by one whit her behavior, she has not engaged in prostitution within the meaning of section 212 (a) (12) of the Immigration and Nationality Act. With due consideration of the two citizen children of respondent and the absence from the United States of her spouse as a member of the armed forces, I find that the charge contained in the warrant of arrest is not sustained and that these proceedings should be terminated.
At the conclusion of testimony on November 8, 1954, this matter was continued at request of counsel in order that respondent might proceed in Municipal Court of the City of Seattle on a petition to set aside judgment of conviction and grant new trial. While the matter of setting aside the conviction is a matter of importance to the respondent as a personal matter, it is immaterial to these proceedings in view of my decision to terminate. Whether or not the conviction is set aside would not affect that decision. Counsel having agreed that these proceedings might be concluded, continuance granted November 8, 1954, is rescinded and the hearing closed.
Findings of Fact: Upon the basis of all the evidence adduced it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent entered the United States for permanent residence on June 1, 1947, at Blaine, Washington;
(3) That the respondent last entered the United States following a short visit to Canada in 1951;
(4) That the respondent committed an act of prostitution June 2, 1954;
(5) That the respondent has not engaged in prostitution within the meaning of section 212 (a) (12) of the Immigration and Nationality Act.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 241 (a) (12) of the Immigration and Nationality Act, the respondent is not subject to deportation in that, by reason of conduct, behavior or activity at any time after entry she became a member of any of the classes specified in section 212 (a) (12), to wit: aliens who have engaged in prostitution.Order: It is ordered that the proceedings in this case be terminated.
Ordinance No. 73095
An ordinance relating to prostitution, fornication, assignation and other lewd or indecent acts; defining offenses and prescribing penalties.
Be it ordained by the City of Seattle, as follows:
SEC. 1. It shall be unlawful to commit or offer or agree to commit any act of prostitution, fornication, assignation or any other lewd or indecent act; or
(a) To secure or offer to secure another for the purpose of committing any such act; or
(b) To be in or near any thoroughfare or place open to the public for the purpose of inducing, enticing or procuring another to commit any such act; or
(c) To knowingly transport anyone to any place where he or she may commit or for the purpose of committing any such act; or
(d) To knowingly receive, offer or agree to receive anyone into any place or building for the purpose of performing any such act, or to knowingly permit anyone to remain there for any such purpose; or
(e) To direct anyone to any place for the purpose of committing any such act; or
(f) To in any way aid, abet or participate in the doing of any such act.
SEC. 2. The provisions of this ordinance are intended as cumulative and selective, and shall not repeal any other ordinance involving the same subject matter.
SEC. 3. If any provision of this ordinance is held invalid, such invalidity shall not affect any other provision, or the application thereof, which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared to be severable.
SEC. 4. The violation of or failure to comply with any provision of this ordinance shall be punishable by imprisonment in the city jail for not to exceed ninety (90) days, or by a fine not exceeding Three Hundred Dollars ($300.00), or by both such fine and imprisonment.
SEC. 5. (30 day ending).
(January 27, 1955)
Discussion: The special inquiry officer on December 28, 1954, directed in an order that the proceedings in the case at bar be terminated and at the same time he certified the case to this Board for final decision in accordance with the applicable regulations. The special inquiry officer found that the respondent is not subject to deportation under the provisions of section 241 (a) (12) of the Immigration and Nationality Act of 1952, on the ground that by reason of conduct, behavior or activity any time after entry, she became a member of one of the classes of aliens specified in section 212 (a) (12) of the Immigration and Nationality Act, to wit: aliens who have engaged in prostitution.
Counsel in a letter dated January 5, 1955, asserted that he concurred in the conclusions of law and the order entered by the special inquiry officer on December 28, 1954, but excepted to Finding of Fact number 4 of the special inquiry officer's decision. The special inquiry officer found that the respondent committed an act of prostitution on June 2, 1954. The record reflects that the respondent was convicted in the Municipal Court, Seattle, Washington, on June 22, 1954, of committing an act of prostitution in Apartment #2, 818 Poplar Street, Seattle, Washington, on or about June 2, 1954. We do not feel this finding of the special inquiry officer should be disturbed. Likewise, we agree with the reasoning and conclusion of the special inquiry officer in finding that the respondent is not subject to deportation. Accordingly, the following order will be entered.
Order: It is ordered that the order of the special inquiry officer dated December 28, 1954, directing that the proceedings in the case at bar be terminated be and the same is hereby approved.