311 F.2d 343 (2nd Cir. 1962), 81, Costello v. Immigration and Naturalization Service

Docket Nº:81, 27597.
Citation:311 F.2d 343
Case Date:December 04, 1962
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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311 F.2d 343 (2nd Cir. 1962)

Frank COSTELLO, Petitioner,



No. 81, 27597.

United States Court of Appeals, Second Circuit.

December 4, 1962

Argued Nov. 9, 1962.

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Edward Bennett Williams, Washington, D.C. (Harold Ungar, Washington, D.C., on the brief), for petitioner.

Roy Babitt, Sp. Asst. U.S. Atty., New York City (Vincent L. Broderick, U.S. Atty., for the Southern Dist. of New York, New York City, on the brief), for respondent.

Before MEDINA, SMITH and KAUFMAN, Circuit Judges.

MEDINA, Circuit Judge.

Frank Costello, an alien, entered the United States from Italy in 1895; he became a naturalized citizen in 1925; he was convicted in 1954 of income tax evasion for the years 1948 and 1949, under two counts of a single indictment that contained no conspiracy charge, United States v. Costello, 2 Cir., 1955, 221 F.2d 668, affirmed, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; and in 1959 his naturalization was revoked. United States v. Costello, 2 Cir., 1960, 275 F.2d 355, affirmed, 1961, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551. Deportation proceedings based upon the two convictions resulted in the order of deportation now sought to be reviewed under 8 U.S.C. § 1105a(a)(1), after an unsuccessful appeal to the Board of Immigration Appeals.

The controlling statute is Section 241(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251(a), the pertinent provisions of which follow:

'Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who--

'(4) * * * at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial; * * *.'

Costello's contentions are: (1) that the statute was not intended to apply to a person of naturalized status at the time of the convictions; (2) that the Government failed to establish conviction of two crimes 'not arising out of a single scheme of criminal misconduct'; (3) that convictions of tax evasion did not constitute convictions of crimes involving moral turpitude; and (4) that it was prejudicial error not to issue a subpoena to the lawyer who represented Costello at the criminal trial for tax evasion, and who allegedly would have testified to the effect that the two convictions did arise 'out of a single scheme of criminal misconduct.'

We find no merit in any of these contentions and dismiss the petition.


After several years of intensive study the Congress passed the Immigration and Nationality Act of 1952, and it became law. One of the specific objectives of this legislation, largely in response to recommendations by the Senate Special Committee to Investigate Organized Crime in Interstate Commerce, 1 was to broaden the provisions governing deportation, 'particularly those referring to criminal and subversive aliens.' 2

As the construction of the statute relied upon by Costello would frustrate the general legislative purpose just referred to, and in effect grant immunity, during the period between the granting and the revocation of naturalization, to those who fraudulently obtained the status of citizens, it would seem to require at least a fairly persuasive argument

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to induce us to interpret the statute in such fashion as to require, as a prerequisite to deportation in the case of a denaturalized person, two convictions of crime either prior to his naturalization, or subsequent to the revocation thereof for fraud. In other words, despite the fact that the person sought to be deported has not only been twice convicted of crime, but also has obtained citizenship status by fraud, we are told that by some mischance the statute has been so worded as to leave a loophole through which Costello may avoid deportation.

When the various integral parts of the statute are read together, as they must be, it is not surprising to find that no such loophole exists. There is no ambiguity, and no occasion to apply the rule of Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433, to the general effect that doubts are to be resolved in favor of the deportee. 3

Walter M. Besterman, Legislative Assistant to the House Committee on the Judiciary, in his Commentary on the 1952 Act, supra, 8 U.S.C.A. at page 18, states: 'Section 1101 dealing with definitions is to be regarded as probably the most important, truly pivotal segment of the statute.' See also House Report No. 1365, supra, page 31. 8 U.S.C. § 1101(a)(3), Section 101(a)(3) of the Act, defines an 'alien' as 'any person not a citizen or national of the United States.' Accordingly, as the statute speaks in terms of the time of enforcement, when Section 241(a)(4), 8 U.S.C. § 1251(a)(4), directs that any 'alien * * * shall * * * be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude,' there is no room for interpretation or construction. At the time the proceedings for deportation were commenced Costello was a person not a citizen or national of the United States and the date of his two convictions is at a time after his entry into the United States. In the context of the statute the word 'is' appears to us to be the most comprehensive word that could have been used, just as is the case with the phrase 'at any time after entry.' 4 See Sutherland, Statutory Construction, 3rd Ed., 1943, Section 4930.

Far from supporting Costello's argument on this point, U.S. ex rel. Eichenlaub v. Shaughnessy, 1950, 338 U.S. 521, 70 S.Ct. 329, 94 L.Ed. 307, strongly supports the Government view of the meaning of Section 241(a), 8 U.S.C. § 1251(a). There 'all aliens who since August 1, 1914, have been or may hereafter be convicted' of violations of the Espionage Act of 1917, as amended, were made deportable, provided the Attorney General after a hearing found them to be undesirable residents of the United States. Thus the time of conviction is stated to be, as paraphrased by the Supreme Court, at page 530 of 338 U.S., at page 333 of 70 S.Ct. 'since about the beginning of World War I (August 1, 1914), whether those convictions were had before or after May 10, 1920,' when the statute under consideration became effective. In Section 241(a), 8 U.S.C. § 1251(a), before us now, the time of the convictions is stated to be 'at any time after entry.' What the Supreme Court decided was precisely the point now raised by Costello, and it was decided against the deportee.

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Eichenlaub had fraudulently procured his naturalization, and the revocation or cancellation of his certificate of citizenship took place after his conviction. So he argued that he was not an alien when convicted and that the statute was not applicable, as it did not in terms include an alien who was not an alien at the time of his conviction. This was supposed to be at least an ambiguity to be resolved in favor of the deportee. Despite a strong dissent by Mr. Justice Frankfurter on the basis of this identical argument, the Supreme Court found no ambiguity, and held, at page 530 of 338 U.S., at page 333 of 70 S.Ct.:

'A simpler and equally complete solution lies in the view that the Act does not require that the offenders reached by it must have had the status of aliens at the time they were convicted. As the Act does not state that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have been naturalized.'

So here, the language of the statute is all inclusive, there are no exceptions. And, to paraphrase the comment in Eichenlaub, at pages 530-531 of 338 U.S., at pages 333-334 of 70 S.Ct., it is difficult to imagine a reason for the Congress to provide for the deportation of an alien, convicted of two crimes involving moral turpitude, who had never been naturalized, but to prohibit the deportation of an...

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