A-1988145 and E-089350.
Decided by Board November 26, 1954.
Filipinos — Deportation — Section 241 (a) (12) of Immigration and Nationality Act — Last entry before May 1, 1934.
A Filipino who last arrived in the United States in 1925, when he was a national of the United States, is not deportable under section 241 (a) (12) of the Immigration and Nationality Act, since the entry referred to in that subsection must be made by one who was an alien at the time (citing Barber v. Gonzales, 347 U.S. 637 (1954)).
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (12) — Aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution.
BEFORE THE BOARD
Discussion: The special inquiry officer found the subject deportable on the charge stated above, authorized suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act, and certified the case to the Assistant Commissioner for review. That official, in turn, certified the case to this Board pursuant to 8 C.F.R. 6.1 (c).
This record relates to a 50-year-old male, a native and citizen of the Philippine Islands. He last entered the United States at Norfolk, Virginia, on April 25, 1925. He has testified that he has remained in the United States at all times since that date.
The respondent was convicted on March 31, 1941, on his plea of guilty, by the Court of Special Sessions, New York City, of the crime of living on the earnings of a prostitute, which crime was committed on February 26, 1941, and for some time prior thereto on the City of New York. He was sentenced to and served a term of one year. He has testified, in connection with the foregoing, that he lived on the earnings of a prostitute in New York City for about six months, during which time he received 50 per cent of the earnings of a woman who practiced prostitution in his room.
On the basis of the foregoing, the special inquiry officer found the respondent to be an alien who has been supported by, or has received, in whole or in part, the proceeds of prostitution. He then concluded that the respondent was deportable on the charge above stated. In so concluding, he found that entry as an alien was not an essential element to deportability on the charge under consideration.
We, however, disagree with the conclusion of deportability reached by the special inquiry officer. We do so on the basis of the decision of the Supreme Court in the case of Barber v. Gonzales, 347 U.S. 637 (1954). In that case, a native and citizen of the Philippine Islands came to the continental United States and lived here at all times thereafter. He was sentenced to imprisonment in 1941 and 1950 for crimes involving moral turpitude. His deportation was sought under section 19 (a) of the Immigration Act of 1917, which requires deportation for such crimes if committed after "entry." The Court held that the statute under consideration made entry as an alien an essential element of deportability and that Gonzales was not an alien when he entered the United States in 1930, prior to the Philippine Independence Act of March 24, 1934, but a national of the United States. Accordingly, the Court held that Gonzales could not be deported.
Here, deportation is sought under section 241 (a) (12) which reads:
Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who — by reason of any conduct, behavior or activity at any time after entry became a member of any of the classes specified in paragraph (12) of section 212 (a); * * *." [Emphasis supplied.]
Section 212 (a) (12) of that act provides:
"* * * aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution * * *."
The above words set up entry as an essential element to deportability. According to the Gonzales case ( supra), that entry must have been as an alien. Since the respondent was not an alien, but a national of the United States, at the time of his entry in 1925, we hold that he is not deportable on the grounds urged by the special inquiry officer. We so hold on the basis of the Gonzales case.
On the basis of the foregoing, there being no other grounds of deportation urged against the respondent, we find that the proceedings must be terminated.
Order: It is ordered that the order entered by the special inquiry officer on January 13, 1954, be withdrawn and that the proceedings be terminated.