56052/531
Decided by the Board January 24, 1941.
Seamen — Section 34, Immigration Act of 1917 — Criminals.
Section 34 of the Immigration Act of 1917, providing that an alien seaman who lands contrary to the provisions of the 1917 act shall within 3 years thereafter be taken into custody and brought before a board of special inquiry for examination as to his qualifications for admission, is not applicable to a seaman subject to deportation because of conviction of a crime involving moral turpitude prior to entry.
CHARGE:
Warrant: Act of 1917 — Crime prior to entry — theft.
STATEMENT OF THE CASE: Warrant of arrest was issued on November 15, 1940, served, and hearing accorded on November 25, 1940, at Buffalo, N.Y. The presiding inspector and district director recommend deportation.
DISCUSSION: The respondent testified that he is a native and citizen of Denmark, 48 years of age, single. He further testifies that his first and only entry occurred at New York during the winter of 1919 or 1920, as a member of the crew ex-S.S. Estonia, when he went ashore for a visit and the boat departed during his absence. The respondent also stated that he came to Canada during 1915 or 1916; that he served in the Canadian Army; that after his discharge from the Army he proceeded to Denmark, served 90 days in the Danish Navy, and subsequently came to the United States, where he has since resided.
The respondent first testified that he had never been arrested in Canada. There was offered in evidence a certificate from the Magistrate's Court of Kitchener, Ontario, to the effect that one of the same name as the respondent was convicted on January 31, 1916, at Berlin (Kitchener) for theft and was given a sentence of 2 months in the common jail. There was also offered in evidence a letter from the Director of the Federal Bureau of Investigation to the effect that a copy of the fingerprints of the respondent was forwarded to the police officials at Ottawa, Ontario, who informed the Federal Bureau of Investigation that there is a record of a conviction of a person whose fingerprint record was submitted in Berlin, Ontario, on January 31, 1916, for the crime of theft when a sentence of 2 months was imposed. When confronted with this evidence, the respondent was asked if he were satisfied that the record of conviction in Canada applied to him. He replied that the record must refer to him although claimed he could remember nothing concerning the conviction and sentence.
From this evidence it appears that the respondent was convicted of the crime of theft in Canada prior to his one and only entry into the United States in 1919 or 1920. He is therefore subject to deportation under the provisions of section 19 of the Immigration Act of 1917, unless it may be held that the provisions of section 34 of the same act apply to his case.
Section 34 of the Act of February 5, 1917, provides as follows:
That any alien seaman who shall land in a port of the United States contrary to the provisions of this act, shall be deemed to be unlawfully in the United States, and shall, at any time within 3 years thereafter, upon the warrant of the Secretary of Labor (Attorney General) be taken into custody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation for this act as provided in section 20 of this act.
Section 19 of the Immigration Act of 1917 in part provides:
(a) That at any time within 5 years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law; any alien who shall have entered or who shall be found in the United States in violation of this act, or in violation of any other law of the United States; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported * * *.
The Circuit Court of Appeals for the Second Circuit in United States ex rel. Danikas v. Day, 20 F. 2d 733, considered the question of whether an alien seaman was subject to deportation because of entry in violation of the provisions of the quota law of 1921, as amended, under the first clause of section 19 above quoted or whether section 34 applied. The practical distinction is, of course, that under section 34 deportation is limited to cases in which an alien is taken into custody within 3 years from entry, while under the first clauses of section 19 proceedings may be instituted within 5 years after an alien's entry. The Circuit Court of Appeals held that section 34 applied, and therefore held that alien seamen who may have entered in contravention of the first Quota Act could only be deported if taken into custody within 3 years of entry, although in regard to other aliens deportation might have been effected within a period of 5 years of entry.
The query then arises, does not the reasoning of the court apply equally to all grounds of deportation that may be based on the first clauses of section 19 of the Immigration Act of 1917, and as to them, alien seamen are deportable only if taken into custody within 3 years of entry. The court, in the course of its opinion, stated as follows:
We can in any event see no escape from the conclusion that section 34 regulates the deportation of seamen in all cases relating to improper entry such as entry in excess of quota. Moreover, if the strict language of section 19 be considered, it seems unlikely that a seaman can be regarded as a person "who at the time of entry was a member of one or more of the classes excluded by law." It is his change of status by remaining which makes his presence here unlawful.
We believe that this language means that where deportation of alien seamen relates to grounds of inadmissibility existing at time of entry and which in the case of other aliens are covered by the first clauses of section 19, the provisions of section 34 apply, and, therefore, as to such grounds of deportation, a seaman must be taken into custody within 3 years of his entry.
Deportation in this case, however, is not based on the provisions of the first clauses of section 19. It is true that section 3 of the Immigration Act of 1917 provides for the exclusion of an alien who has been convicted of or who admits committing a crime involving moral turpitude and the first clauses of section 19 could be used as a legal basis for his deportation. However, Congress singled out the alien who had been convicted of or admits committing a crime prior to entry to the United States and in section 19 specifically provided for the deportation of this class irrespective of length of residence in the United States. By singling out this one group and as to them providing for deportation without regard to time of entry, while in other cases of entry in violation of the 1917 act limiting the period within which deportation may be affected, Congress has clearly directed a more severe treatment as to this criminal class. This ground of deportation is not one that relates to an irregularity of entry. It is a basis of deportation that very definitely goes to the moral fitness of an alien as a resident of the United States. Clearly there could be no purpose on the part of Congress to give a greater privilege to criminals who may enter as seamen than to criminals who may enter in any other manner. There may be reason for concluding that because of the nature of a seaman's calling, Congress thought some leeway and some privilege were due this class, but this leeway and privilege were clearly limited to matters concerned more with the technical qualifications of an alien for admission to the United States than with the personal qualifications for such admission. We conclude, therefore, that the Danikas case, supra, is not controlling and therefore we believe the alien is subject to deportation.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent is an alien, a native and citizen of Denmark;
(2) That the respondent last entered the United States at New York during 1919 or 1920, as a seaman on the S.S. Estonia;
(3) That the respondent was convicted in Canada of the crime of theft prior to his last entry into the United States.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of February 5, 1917, the respondent is subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry, to wit: theft;
(2) That under section 20 of the Immigration Act of February 5, 1917, the respondent is subject to deportation to Denmark at the expense of the Government.
OTHER FACTORS: The respondent is single. He does not have any relatives in the United States. A brother and a sister reside in Denmark. He has resided at the Erie County Lodging House most of the time since 1937 and has also received relief assistance for a period of 10 months. He has not had any periods of long employment with one concern. He has been employed on Government projects. He has been arrested three times for intoxication, serving a 30-day jail sentence for each arrest. He has funds in the amount of $3. There is no one dependent on him for support.
ORDER: It is ordered that the alien be deported to Denmark at Government expense on the following ground:
That he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: theft.