Tseung Chu v. Cornell

• Decision Date: 12 September 1957
• Docket Number: No. 15344.,15344.
• Citation: 247 F.2d 929
• Parties: TSEUNG CHU, also known as Bow-Quong Chew, also known as Tseung Bowquong Chew, also known as Thomas Bowquong Chew, Appellant, v. Gordon L. CORNELL, Acting Officer in Charge of United States Department of Justice, Immigration and Naturalization Service at Los Angeles, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

247 F.2d 929 (1957)

TSEUNG CHU, also known as Bow-Quong Chew, also known as Tseung Bowquong Chew, also known as Thomas Bowquong Chew, Appellant, v. Gordon L. CORNELL, Acting Officer in Charge of United States Department of Justice, Immigration and Naturalization Service at Los Angeles, California, Appellee.

No. 15344.

United States Court of Appeals Ninth Circuit.

July 11, 1957.

Concurring Opinion September 12, 1957.

Francis C. Whelan, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., James R. Dooley, Burton C. Jacobson and Richard A. Lavine, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS and BARNES, Circuit Judges, and WALSH, District Judge.

BARNES, Circuit Judge.

By this action, plaintiff, an alien, sought a judicial declaration in the District Court that an order of deportation issued by the United States Department of Justice, Immigration and Naturalization Service, was invalid. Plaintiff prayed for declaratory relief, and for an injunction restraining the execution of said order of deportation, alleging that appellant had exhausted his administrative remedies. The District Court¹ denied relief to appellant. This is an appeal therefrom.

Section 212(a) of the Immigration and Naturalization Act of 1952, 66 Stat. 182, Title 8 U.S.C.A. § 1182(a) provides in pertinent part:

"(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * *

"(9) Aliens who have been convicted of a crime involving moral turpitude, (other than a purely political offense) * * *

"(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation or seeks to enter the United States by fraud, or by willfully misrepresenting a material fact."

The order of deportation issued against the defendant rested on two grounds:

(1) that prior to his last entry into the United States he had been convicted of a crime involving moral turpitude, to wit, the crime of wilfully attempting to defeat or evade the income tax; (Internal Revenue Code of 1939, Title 26, U.S.C.A. § 145(b));

(2) that he had procured a visa for such last entry by fraud or by wilfully misrepresenting a material fact.²

The District Court found that the warrant of arrest was issued, charging appellant with being subject to deportation, on April 20, 1954, on the two grounds hereinabove stated. The District Court further found that deportation proceedings were held; that an administrative appeal from the decision of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals; that the Immigration officials who acted had jurisdiction and authority to act; that there was reasonable, substantial, and probative evidence to support the decision of deportability, the order of deportation, and the warrant of deportation; that the deportation proceedings relating to appellant were fair, in accordance with law, and in accordance with appellant's constitutional rights; further, that the violation of Title 26 U.S.C.A. § 145(b) constitutes a crime involving moral turpitude within the meaning of Section 212(a)(9) of the Immigration and Naturalization Act; and, that appellant's failure to disclose his said conviction on his application for an immigration visa was a material fact which appellant was under a duty to disclose.

The Facts.

Appellant first entered the United States at San Francisco, California, on November 9, 1907, as the son of a merchant. He departed June 15, 1912, and was readmitted October 22, 1913, as a treaty merchant. He left this country in 1947, and after six years residence in China, last entered the United States at Honolulu, T.H., on August 11, 1953, as a returning resident alien.

Prior to his last entry, and on March 27, 1944, appellant had been convicted on his plea of nolo contendere to violating Title 26 U.S.C.A. § 145(b), wilfully seeking to evade and avoid the payment of income tax.

In his application for a visa Defendant's Exhibit A, appellant failed to disclose the fact of such conviction.

Question No. 32 on the application for visa reads as follows:

"I have never been arrested; convicted; in prison; in an almshouse; treated in an institution, hospital, or other place, for insanity or other mental disease; the beneficiary of a pardon or amnesty, except as hereinafter stated.",

to which the appellant gave the sworn answer: "None."

Appellant's conviction was based upon a four count indictment, filed February 16, 1944, summarized as follows:

Count I charged that appellant for the year 1937 had returned a net income of $1,724.42; that in fact his net income had been $12,440.72; that appellant had

"* * * wilfully, knowingly, unlawfully and feloniously" attempted to evade and defeat his tax by making "* * * under his oath * * * a false and fraudulent income tax return for said calendar year * * *."

Count II charged that in 1938, in the same manner, and with the same intent and purpose, appellant had made a return of $3,778.21, but had actually received $15,795.77 net income.

Count III charged a 1939 return of $4,766.50, made with the same intent and purpose, and an actual net income of $37,760.65.

Count IV charged a 1940 return of $2,490.35, made with the same intent and purpose, and an actual net income of $14,998.78.

On March 27, 1944, the appellant

"* * * was convicted on his plea of nolo contendere of the offenses charged in the Indictment in the above entitled cause, to wit: make (sic) false and fraudulent income tax returns, as more fully set forth and charged in the counts of the indictment herein;"

and was fined $1,000 on each of the four counts.

On June 24, 1954, an order was entered by the United States District Court, "correcting a clerical error in judgment," on motion of counsel for appellant.³ The deportation hearing was reopened by the Special Inquiry Officer, pursuant to motion of the alien's counsel, so that this corrected judgment could be introduced in evidence by the alien.

The correction in the judgment, removes the words

"make false and fraudulent income tax returns"

in the original judgment, and substitutes the words

"wilful attempts to evade and defeat income tax."

The Special Inquiry Officer observed that:

"* * * both judgments referring to the offenses charged in the indictment, and showing that the respondent (appellant) had been convicted on his plea of nolo contendere of those offenses."

The Law.

Appellant states, "This appeal involves questions of law. While there are thirteen different specifications of error, appellant's position can be set forth in the discussion of four legal points," which, stated briefly, are these:

1. A violation of Title 26 U.S.C.A. § 145(b), Internal Revenue Code of 1939, is not a crime involving moral turpitude.

2. A violation of the same section was not a material fact which appellant was under a duty to disclose on his application for visa.

3. A "conviction" upon a plea of nolo contendere is not such a conviction as need be admitted in a civil proceeding, and therefore need not be disclosed in an application for an immigration visa.

4. The phrase "crime involving moral turpitude" as used in the Immigration and Naturalization Act does not have a sufficiently definite meaning, "to afford a constitutional standard for deportation."

We shall consider these four points in turn.

Is a Violation of Title 26 U.S.C.A. § 145(b), Internal Revenue Code of 1939, a Crime Involving Moral Turpitude, As That Term Is Used In Section 212(a) (9) of the Immigration and Naturalization Act?

In the leading case of Jordan v. De George, 1951, 341 U.S. 223, 71 S. Ct. 703, 704, 95 L.Ed. 886, there was but one question presented:

"* * * whether conspiracy to defraud the United States of taxes on distilled spirits is a `crime involving moral turpitude\' within the meaning of § 19(a) of the Immigration Act of 1917. * * * The indictment specifically charged him with possessing whiskey and alcohol `with intent to sell it in fraud of law and evade the tax thereon.\' He was further accused of removing and concealing liquor `with intent to defraud the United States of the tax thereon\'."

Defendant pleaded guilty, was sentenced, served his time and was again indicted.

"He was charged with conspiring to `unlawfully, knowingly and willfully defraud the United States of tax on distilled spirits\'."

He was tried, found guilty, and sentenced. Deportation proceedings were then commenced against De George, as an alien who more than once had been sentenced for one year or more

"* * * because of conviction in this country of any crime involving moral turpitude."

De George sought release by habeas corpus, claiming the crime of which he had been convicted did not involve moral turpitude. The Supreme Court, determining this one issue before it said:

"Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude. * * * In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. This has been true in a variety of situations (citing cases and the facts therein)."

In Chanan Din Khan v. Barber, D.C. N.D.Cal., 1957, 147 F.Supp. 771, 775, the same matter was in issue. There the District Court found that a violation of § 145(b) is a crime involving moral turpitude.

"* * * the Courts have, with apparent unanimity, held that in order for a conviction under § 145(b) to stand, the government is required to prove that the evading taxpayer had a specific intent to evade taxation amounting to an intent to defraud the United States. (Emphasis by the Court.) Fraud is so inextricably woven into the term wilfully, as it is employed in § 145(b), that it is clearly an ingredient of the offense proscribed by that section. Only by creating unwarranted semantic distinctions could a contrary

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