A-2603068
Decided by Board June 12, 1945.
Prostitution — "Found practicing" — Section 19 of the act of February 5, 1917.
A woman who presumably practiced prostitution from about July 1939 to June 1940, but who was not served with a warrant of arrest in deportation proceedings until April 7, 1944, was held not to have been "found practicing prostitution" within the meaning of section 19 of the act of February 5, 1917, because the prohibited acts were not performed at or near the time that the alien was taken into custody in deportation proceedings.
CHARGE:
Warrant: Act of 1917 — Found practicing prostitution.
BEFORE THE BOARD
Discussion: The respondent, a native citizen of Italy, 48 years of age, testified that she last entered the United States on May 18, 1904, at the port of New York where she arrived as a passenger ex-SS City of Naples and was admitted for permanent residence. Entry as claimed has been verified.
The respondent testified that she was arrested in New York City in 1939 and 1940 on the charges of prostitution, the former time receiving a suspended sentence and the latter time being sentenced to 120 days of which she served 15, and that she was guilty of the offenses with which she was charged. There were admitted in evidence court records establishing the subject's convictions on September 9, 1939, and June 26, 1940, for violation of section 887, subdivision 4, clause "A" of the Code of Criminal Procedure, in that she "did offer to commit prostitution with deponent, demanding and receiving the sum of $2.50 and $4.00, respectively." The respondent testified that she practiced prostitution only from about July 1939 to June 1940 and explained that at that time she was in dire circumstances, had been dispossessed four or five times from her apartment, and, desiring to provide for her children, then 15, 16, and 17 years of age, she resorted to accepting money from men to supplement her earnings of about $25 a week. She further testified that she did not associate indiscriminately with men but went only with those who attracted her, that she was never connected with a house of prostitution, never frequented places where prostitutes gathered, and that the acts she performed were a means of lucrative entertainment to her rather than prostitution as that term is commonly defined.
The statute under which the respondent is charged with being subject to deportation reads:
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, * * * shall, upon the warrant of the Attorney General, be taken into custody and deported; * * * (8 U.S.C. 155).
This provision of law was considered by the United States District Court at Boston, Mass. in two unreported cases, ( Moore v. Tillinghast, 55617/927 and Cronin v. Tillinghast, 55656/481) the facts of which are comparable to those presently before this Board. In his opinion sustaining the writ of habeas corpus in Moore v. Tillinghast (Case no. 2949 D.C. Mass. August 13, 1928), Judge Lowell stated:
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 Secretary of Labor agreed with the conclusion of the court and the Solicitor General directed that no appeal be taken from the orders sustaining the writs of habeas corpus.
A memorandum of Assistant Attorney General Luhring dated October 6, 1928, D.J. File No. 39-36-137 stated:
"On habeas corpus proceedings in both cases, Judge Lowell held that the statute relates to the present time and not to the past and that the evidence in both cases merely established that by the admission of the aliens they had been in the past inmates of a house of ill fame. The court stated that if the Government's contention were sound, namely, that the word `found' is equivalent to `proved to have been,' that a person who had been immoral in her youth might be deported when she had reformed and been leading a virtuous life for many years.
"The Secretary of Labor agrees with the conclusion of the court that to come within the language of the statute the alien must be `found' to be practicing prostitution at or near the time of her arrest. This seems to be a reasonable construction of the statute."
The view taken in these cases which has been approved by the Department of Justice was subsequently reinforced by the Supreme Court decision in the case of Kessler v. Strecker, 307 U.S. 22 (1939). In the Strecker case it was held that an alien was not "found to have become" a member of an organization proscribed by the act of October 16, 1918, as amended, where he was not a member at the time of the institution of deportation proceedings. The court stated (at p. 30):
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.
Similarly in the instant case, we decide that deportation should not be based upon past practice of prostitution in the absence of a clear and definite expression from Congress that an alien, however long a resident of this country, should be deported for conduct however remote in the life of the subject.
In the subject case, assuming but not conceeding that the respondent's conduct from 1939 to 1940 constituted prostitution, there is no evidence to indicate, much less to establish, that she has performed any sexual act for a monetary consideration since that time. The warrant of arrest in this case was not issued until August 4, 1943, and was not served upon the respondent until April 7, 1944. It cannot be said, therefore, that at the time of the institution of proceedings the respondent was "found" to have been practicing prostitution and, accordingly, the charge contained in the warrant of arrest is not sustained.
By our construction of the statute we do not mean to say that an alien must be apprehended in an act of prostitution or in a house of prostitution at the time of the service of the warrant of arrest. It is, however, necessary that the alien be found practicing prostitution within a reasonable period before arrest in deportation proceedings. Such is not the case in the proceeding before us.
Findings of Fact: Upon the basis of the evidence, it is found:
(1) That the respondent is an alien, a native citizen of Italy;
(2) That the respondent last entered the United States on May 18, 1904, at the port of New York where she arrived as a passenger ex SS City of Naples and was admitted for permanent residence;
(3) That from about July 1939 to June 1940 the respondent engaged in sexual acts with various men for monetary considerations;
(4) That the warrant of arrest in these proceedings was issued on August 4, 1943, and served on the respondent on April 7, 1944;
(5) That at the time of the institution of these proceedings the respondent was not found to be practicing prostitution.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that she has been found practicing prostitution subsequent to her entry into the United States.
Order: It is ordered that these proceedings be terminated.