A-5438638
Decided by Central Office, December 13, 1948 Memorandum by Central Office, January 6, 1949 Decided by Board, March 21, 1949
Filipino — Entry into United States before May 1, 1934, as a "national" — Deportability as "alien" after May 1, 1934 — Sentenced more than once on conviction of crimes committed on and after May 1, 1934.
Where a Filipino last entered the United States before May 1, 1934, as a "national", he is subject to deportation like any other alien on the ground he was sentenced more than once on conviction of crimes involving moral turpitude committed on and after May 1, 1934, inasmuch as the date of his entry is not a necessary element in the deportation process and on and after May 1, 1934, he was placed in the category of an alien for immigration purposes.
CHARGES:
Warrant: Act of 1917 — Sentenced more than once for crimes — Burglary, burglary and pandering.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served upon the alien on November 16, 1948, are hereby adopted.
Discussion: Respondent is a single male, age 46, a native and citizen of the Republic of the Philippines. He made his only entry into the United States at the port of San Francisco on February 16, 1919, as a member of the crew of the U.S.A.T. Logan.
On May 31, 1938, at Los Angeles, Calif., he was convicted for burglary, second degree, committed on February 4, 1938, and sentenced to from 1 to 15 years.
On May 14, 1946, at Los Angeles, Calif., he was convicted on counts of pandering and pimping, committed on or about January 15, 1946, and sentenced on each count to terms of from 1 to 10 years to run concurrently. No exceptions were filed.
It is now well established that an alien who is a citizen of the Republic of the Philippines, who entered the United States prior to May 1, 1934, as a national of the United States, is deportable on charges based on his being sentenced more than once to imprisonment for a term of 1 year or more because of conviction in this country of any crime involving moral turpitude, committed any time after entry, provided the causes of deportation occurred subsequent to May 1, 1934. Matter of C---- A-5885722 (Feb. 25, 1948 B.I.A.); Matter of O---- A-5553948 (Jan. 16, 1948 B.I.A.). (See 3 IN Dec. 155, 184.)
The situation above described must be distinguished from the situation in the case of Del Guercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9th, 1947), where it was held that where the charge under which deportation is sought arises out of a charge of "crime committed within 5 years after entry of the alien," a native and citizen of the Republic of the Philippines who enters the United States prior to May 1, 1934, as a national of the United States, could not be deported on that charge only, as the crime was not committed within 5 years after entry as an alien ( Matter of O---- supra).
Burglary, second degree, for which the respondent was sentenced at Los Angeles, Calif., on May 31, 1938, involves moral turpitude. Matter of F---- A-4699844 (1946 B.I.A.).
Pandering, the crime for which the respondent was convicted at Los Angeles, Calif., on May 14, 1946, involves moral turpitude.
Pandering is defined under California statute as follows:
Any person who shall procure a female inmate for a house of prostitution, or who, by promises, threats, violence, or by any device or scheme, shall cause, induce, persuade, or encourage a female person to become an inmate of a house of prostitution, or shall procure for a female person a place as inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this State, or any person who shall by promises, threats, violence, or by any device or scheme, cause, induce, persuade, or encourage an inmate of a house of prostitution or any other place in which prostitution is encouraged or allowed to remain therein as such inmate, or any person who shall by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procure any female person to become an inmate of a house of ill-fame, or to enter any place in which prostitution is encouraged or allowed within this State, or to come into this State or leave this State for the purpose of prostitution, or who shall receive or give, or agree to receive or give, any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill-fame within this State, or to come into this State or leave this State for the purpose of prostitution, shall be guilty of a felony, to wit: Pandering, and upon conviction for an offense under this act shall be punished by imprisonment in the State prison for a period of not less than 1 year nor more than 10 years.
The information charged the respondent with the crime of pandering in that, on or about the fifteenth day of January 1946, "at and in the county of Los Angeles, State of California (he), did wilfully, unlawfully and feloniously, procure one P---- C----, a female person, a place as an inmate of a house of prostitution."
The crime of keeping a house of ill-fame is one involving moral turpitude, Matter of J---- A-5402564 (1946 B.I.A.); the crime of soliciting prostitution involves moral turpitude, Matter of M---- A-6030668 (1947 B.I.A.). These decisions are on the theory that the crimes mentioned consist of the elements of prostitution.
Pandering is a crime in which assistance and aid is given to the carrying on of the business of prostitution. It therefore partakes of the turpitudinous nature of prostitution and falls within the rulings of the cases above. It is so far contrary to moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, and is deprived of social recognition by the community. It is therefore concluded that the respondent's conviction for pandering is conviction of a crime involving moral turpitude.
At the reopened hearing on November 2, 1948, the respondent was not afforded an opportunity to apply for discretionary relief. His case will therefore be considered as if he had applied for suspension of deportation and voluntary departure.
Respondent is single and has no one dependent upon him for support. His parents are deceased. The respondent has an arrest record which commences in 1928 which includes two arrests and convictions for burglary, one in 1931 and one in 1933, in addition to the convictions previously discussed.
The charge upon which deportation is predicated places the alien within a class of persons enumerated in section 19 (d) of the Immigration Act of 1917, so as to preclude him from favorable consideration for the relief set forth in section 19 (c) of that act except insofar as such relief may be granted in conjunction with the seventh proviso. The alien's record of arrests and convictions precludes favorable consideration of the seventh proviso. Deportation is mandatory.
Recommendation: It is recommended that the alien be deported to the Republic of the Philippines, at Government expense, on the following charges:
Section 19 of the Immigration Act of 1917, in that, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude, committed after May 1, 1934, to wit: Burglary and pandering.It is further recommended, That the alien's application for suspension of deportation and voluntary departure be denied.
So ordered.
MEMORANDUM BY CENTRAL OFFICE
Discussion: Respondent is a 46-year-old single male, a native of the Philippine Islands, of the Filipino race. His only entry into the United States was at the port of San Francisco, Calif., on February 16, 1919, as a member of the crew of the U.S.A.T. Logan. At the time of this entry, the respondent was, by virtue of his birth in the Philippine Islands, a national of the United States.
By order dated December 13, 1948, the respondent was ordered deported on the charge, based on section 19 (a) of the Immigration Act of 1917, that he had been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude, to wit: Convicted on May 31, 1938, at Los Angeles, Calif., for the crime of burglary, second degree, committed on February 4, 1938, and sentenced to a term from 1 to 15 years; convicted on May 14, 1946 at Los Angeles, Calif., on counts of pandering and pimping, committed on or about January 15, 1946 and sentenced, on each of these counts, to a term of from 1 to 10 years to run concurrently.
On December 13, 1948, the warrant was issued, directing the deportation of the respondent to the Philippine Islands at Government expense. Failing a stay, the alien's deportation will be effected on January 7, 1949.
In reconsidering the outstanding order of deportation in the instant case a review of some of the more important cases which have considered the deportation of Filipinos would be appropriate. The leading decision is contained in the Gabot case (55898/979).
Gabot, a Filipino native of the Philippine Islands had arrived in the continental United States on July 11, 1929, and resided continuously in this country with exception of a 4-hour visit to Mexico on March 20, 1934. On January 28, 1935, he was convicted of the crime of second-degree murder committed on October 11, 1934, and sentenced to a term of more than 1 year. He was ordered deported on the charge that he had been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude, committed within 5 years after the entry of the alien to the United States. The deportee was ordered discharged from Service custody in habeas corpus proceedings by the District Court of the United States for the Southern District of California. In overruling the Government's appeal, the circuit court stated:
any change in the Filipino's status was effective from the effective date of the statute (May 14, 1935, per court; May 1, 1934 per C.O.), and that it was not intended to be effective retroactively, and that when Gabot came across the line in March 1934, he was not an alien, and, therefore, the "turpitude" statute was not applicable. * * * The law does not favor the retroactive application of statutes. Ex post facto application of criminal law is prohibited by the United States Constitution. Of course, the issue here is not concerned with the subject of ex post facto law yet it approaches it in principle, for if the director is right, the appellee is to be forcibly deported only by the retrospective application of a law which has constituted a perfectly legal act, when done, a necessary element for the deportation Del Guercio v. Gabot, 161 F. (2d) 559 (C.C.A. 9th, 1947).
The opinion of the court in the Gabot case was contrary to the view which the Service had taken that the phrase in the Philippine Independence Act (sec. 8 (a) (1) of the act of March 24, 1934; 48 Stat. 457), that "for the purposes of * * * all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens" meant that from its effective date (May 1, 1934), any Filipino, not a citizen of the United States, must be considered as though he had been an alien during his entire stay in this country. However, no appeal having been taken and the Gabot case being the only decision of a circuit court on the question, the doctrine of the case has been adopted as the Service view in cases involving the same facts. Distinctions have been drawn in other deportation cases involving Filipino deportees.
The first distinction was drawn in the O---- case. O----, a native and citizen of the Philippine Islands, who last entered the United States in 1927, was found deportable under the charges, "inmate of a house of prostitution" and "assisting a prostitute," arising from conduct in 1941. The Board of Immigration Appeals held that the Gabot rule did not apply here and stated:
The charge there under consideration made the entry an integral factor in that the entry must have occurred within 5 years of the commission of the offense. Such is not the case with respect to the charges placed against the respondent. It is true that the language of the statute respecting the first charge contains the words "after such aliens shall have entered the United States," but the time of entry is immaterial, hence use of the words last quoted is of no importance; * * * With respect to the second charge, assisting a prostitute, the deportation statute contains no language respecting entry or time of entry. Hence, even less basis exists for concluding that the Gabot decision should prompt a withdrawal of that charge. * * * Matter of A---- O---- A-5553948 (B.I.A. Jan. 16, 1948).
The next distinction was made in the C---- case. This Philippine citizen who last entered the United States in 1927, was ordered deported on the ground that he had been sentenced more than once to a term of 1 year or more because of conviction in this country of crimes involving moral turpitude, after entry (and after May 1, 1934). In denying a motion to reopen for the purpose of cancelling the proceedings, the Board of Immigration Appeals held, in distinguishing the Gabot ruling:
It will be seen that the court was dealing with a ground of deportation in section 19, Immigration Act of 1917, which has reference to its perpetration within 5 years of last entry; and not to that portion of the statute dealing with an alien sentenced more than once * * * in such cases, we hold, the date of entry is not necessarily the controlling factor, although it is imperative that the causes of deportation occurred subsequent to May 1, 1934 * * * thus it will be seen that the crime upon which the present respondent's deportation has been decreed occurred subsequent to the effective date of the Philippine Independence Act, namely, May 1, 1934, on and after which date, of course, C---- was placed in a category of an alien for immigration purposes. His entry prior to that date is not a necessary element for deportation on the particular charge set forth above. Matter of S---- C---- A-5885722 (B.I.A. Feb. 25, 1948).
The distinction between the two types of cases has failed of recognition in recent case in the United States District Court for the Territory of Hawaii in habeas corpus proceedings. On October 22, 1941, the petitioner, a Filipino native of the Philippine Islands, who had entered the United States at Honolulu, T.H., on July 26, 1917, was ordered deported on the charge stated in the warrant for his arrest, that in violation of section 19 of the Immigration Act of 1917, he had been found assisting a prostitute on or about September 10, 1939. Matter of L---- M----, A-2662405 (B.I.A. Oct. 21, 1941). On April 22, 1948, a motion to stay deportation was denied by the Board of Immigration Appeals. Pursuant to the warrant of deportation, the petitioner was placed on board the S.S. General Gordon, at Honolulu on July 15, 1948, and on the same day, a writ of habeas corpus was served on the master of the vessel. In granting the writ and discharging the petitioner, the Court stated:
The deportation statute allows only for the deportation under certain conditions of persons who enter the United States as aliens and who at the time of deportation continue to be aliens. This petitioner entered the United States lawfully as a national of the United States and continued to be such on the date of the order of deportation. Indeed, he did not become an alien despite the acceptance in 1935 by the people of the Philippines of the act of Congress granting them independence until such a time as the Republic of the Philippines was established as an independent sovereignty in 1946. Until that time, despite the general provisions of the Independence Act, that for immigration purposes Filipinos should be treated as if they were aliens, the petitioner in point of law remained a national of the United States for he had no means of divesting himself of American nationality and could not have become an alien and citizen of the Republic of the Philippines until such time as that government came into being.
In any event, having lawfully entered the United States as a national and not as an alien he was not subject to deportation as an alien on the basis of the warrant of deportation dated in 1941. Matter of L---- M----, Habeas Corpus 315 (U.S.D.C., Honolulu, Oct. 1, 1948).
The Service order in the instant case has the authority of the Board of Immigration Appeals in the C---- case, cited above, pending reversal of that decision by the Board, we are constrained not to change our original order of deportation in this case. However, in view of the conflict between the Board's decision in the O---- case, the precedent for the C---- case, and the M---- decision of the district court, it is felt that a stay of deportation should be granted pending reconsideration of its views by the Board of Immigration Appeals.
Recommendation: It is recommended that deportation be stayed pending consideration of this case by the Board of Immigration Appeals.
It is further recommended, That, in accordance with the provisions of section 90.3 (b) of title 8, Code of Federal Regulations, this case be certified to the Board of Immigration Appeals for final decision.
So ordered.
Discussion: The Service in this case on December 13, 1948, ordered respondent's deportation to the Republic of the Philippines under the provisions of section 19 of the Immigration Act of 1917, in that, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude, committed after May 1, 1934, to wit: burglary and pandering.
The Service, by its order of January 6, 1949, has stayed deportation pending consideration by this Board of its previous position in the Matter of C----, 5885722, Feb. 25, 1948, because of the Ninth Circuit Court opinion in Del Guercio v. Gabot, 161 F. (2d) 559 (1947) and the opinion of the U.S. District Court for the Territory of Hawaii in the case of L---- M----, 2662405, Oct. 21, 1941. The Service desires to change its position taken in its order of December 19, 1948, directing deportation, because it feels that the court opinions in the cases mentioned justify this but before doing so desires reconsideration of our position in the C---- case.
We held in the C---- case that our conclusion was not in conflict with that of the Circuit Court of Appeals for the Ninth Circuit in Del Guercio v. Gabot. In the Gabot case the court was dealing with a native of the Philippine Islands who legally entered Hawaii on September 9, 1927, and who last entered the United States from Mexico on March 20, 1934. On October 11, 1934, he killed a man and was convicted of murder in the second degree. In holding Gabot not deportable under section 19 of the Immigration Act of 1917, the court held that Gabot was not an alien when he entered from Mexico in March 1934, and that the Philippine Independence Act became effective May 1, 1934, after Gabot's last entry. In that act it is provided that "for the purposes of chapter 6, title 8 (except sec. 13 (c), not pertinent here) this section and all of the laws of the United States, relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands, who are not citizens of the United States, shall be considered as if they were aliens * * *."
In the C---- case the charge against him was that he had been sentenced more than once, etc., which was not so in the Gabot case, and we distinguished by stating that the date of entry, where the ground is sentenced more than once, is not necessarily the controlling factor although it must be established that the cause of deportation occurred subsequent to May 1, 1934. We found that the grounds of deportation in the C---- case occurred subsequent to May 1, 1934, on and after which date he was placed in the category of an alien for immigration purposes, and that the fact that he had entered on a date prior to May 1, 1934, was not a necessary element in the deportation process.
We took the same position in the Matter of O----, 5553948, Jan. 16, 1948.
On September 30, 1948, the United States District Court for the Territory of Hawaii discharged L---- M----, whom we ordered deported on October 22, 1941, on the ground that he had been found assisting a prostitute, M---- last entered the United States on July 26, 1927, before effective date of the Philippine Independence Act. In granting a writ of habeas corpus, and discharging M---- from the custody of immigration authorities, the District Court relied upon the ruling of the Ninth Circuit in the Del Guercio v. Gabot case ( supra). The Department agreed with the principle of law advanced by the Immigration Service but decided against appeal for practical reasons.
The Board feels that its position in the C---- case is not inconsistent with the ruling of the Ninth Circuit Court in the Gabot case. We will, therefore, direct that no change be made in our holding in the C---- case as requested by the Service.
Order: It is ordered that no change be made in our holding in the C---- case.