Barber v. Lal Singh, 15300.
| Decision Date | 24 June 1957 |
| Docket Number | No. 15300.,15300. |
| Citation | 247 F.2d 213 |
| Parties | Bruce G. BARBER, District Director, Immigration and Naturalization Service, San Francisco, Appellant, v. LAL SINGH, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellant.
Milton T. Simmons, San Francisco, Cal., for appellee.
Before STEPHENS, POPE and HAMLEY, Circuit Judges.
Appellee is an applicant for suspension of deportation. It is conceded that he is subject to deportation, and the issue before us is the correctness of the District Court's order holding that his eligibility for suspension of deportation should be determined under the provisions of the Immigration Act of 19171 rather than the Immigration Act of 1952.2
Appellee first entered this country in 1925. He was convicted of violation of the Passport Act of 1918 and deported, but in 1927 he again illegally entered the United States. In 1935 he stated under oath to an examining officer of the Immigration and Naturalization Service that he had entered this country only once. In May, 1938, a warrant of arrest pursuant to deportation proceedings was issued, but it was returned unserved. In 1949, he made application for Registry of an Alien in which he stated he had entered this country only once, in 1923, and had never been deported. This application was denied when it was learned of his prior deportation. In 1950 a warrant of arrest in a deportation proceeding was issued charging petitioner with being in this country in violation of the Immigration Act of 1924. A hearing was held before a Special Inquiry Officer on February 8, 1954. On April 12, 1955, appellee made application for suspension under § 244 of the Immigration and Nationality Act of 1952, and a second hearing in deportation proceedings was also held on that date. The Special Inquiry Officer found that he was deportable and ordered his deportation; he also found that he was not of good moral character for seven years before the application for suspension of deportation, and therefore denied the application. But the Special Inquiry Officer did find that he was of good moral character for the last five years, and thus granted him the privilege of voluntary departure. 8 U. S.C.A. §§ 1254(e), 1101(f). The Board of Immigration Appeals affirmed the order of the Special Inquiry Officer and held that appellee's application for suspension of deportation made April 12, 1955, had to be considered under the 1952 Act, and under that Act he did not qualify for consideration of suspension of deportation.
Appellee brought this habeas corpus proceeding3 in the District Court arguing that by virtue of the Savings Clause in the 1952 Act, Section 405(a), note to U.S.C.A. § 1101,4 that he was entitled to have his eligibility for discretionary suspension considered under the 1917 Act. The District Court agreed with appellee, basing its decision on the fact that the warrant of arrest was issued in 1950, prior to the 1952 Act.
Appellee is not eligible for consideration for discretionary suspension of deportation if the 1952 Act is applicable since the Special Inquiry Officer held that he was not of good moral character for seven years before the application was filed. But under the 1917 Act, appellee would be eligible for consideration of discretionary suspension of deportation since under that law, he meets the five year requirement of good moral character.
The Savings Clause provides:
This Court, in Aure v. United States, 9 Cir., 225 F.2d 88, held that no affirmative action need be taken by one claiming the benefits of the Savings Clause in order to preserve those benefits under that clause, and the test was whether the benefit claimed was a substantive right or a mere procedural one. In United States ex rel. Zacharias v. Shaughnessy, 2 Cir., 221 F.2d 578, it was held that in a deportation proceeding which began with a warrant of arrest served after 1952, eligibility for voluntary departure should be determined under the prior law, since the application for voluntary departure related back to an application for an immigrant visa filed by petitioner's wife some three months before the effective date of the 1952 Act. In Shintaro Miyagi v. Brownell, 97 U.S.App. D.C. 18, 227 F.2d 33, 35, it was held that the 1917 Act was applicable, although an alien had not formally applied for suspension of deportation before the 1952 Act was enacted, but had filed a motion for reconsideration and as a result of such motion, the original order and warrant of deportation were withdrawn, and the hearing was "reopened for the reception of such application for relief from deportation as may be made and for further appropriate proceedings in connection therewith." In Ferreira v. Shaughnessy, 2 Cir., 1957, 241 F.2d 617, it was held that under the Savings Clause of the 1952 Act, an application for suspension of deportation filed between the date of the enactment and the effective date of the 1952 Act should be considered under the prior 1917 Act. It was not necessary for decision in Ferreira to determine the status of an application filed after the effective date of the 1952 Act. Foradis v. Brownell, D.C.Cir., 1957, 242 F.2d 218, involved an application for suspension of deportation filed subsequent to the date of enactment but prior to the effective date of the 1952 Act. It was therein held that the 1917 Act was applicable, the Court referring to United States v. Menasche, 348 U.S. 528, 75 S. Ct. 513, 99 L.Ed. 615, where it was held that a petition for naturalization filed subsequent to the effective date of the 1952 Act () was to be governed by the 1940 Act, in a case in which the alien had filed his declaration of intention under the latter. We find further support for the result reached in Ferreira and Foradis in House Report No. 1365, which was prepared by the House Committee on the Judiciary explaining in detail H. R. 5678, which subsequently became the Immigration and Nationality Act of 1952. The report states:
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Kavoukdjian v. Rogers, Civ. A. No. 2364.
...the 1952 Act. Ferreira v. Shaughnessy, 2 Cir., 1957, 241 F.2d 617; Miyagi v. Brownell, D.C.Cir., 1955, 227 F.2d 33; cf. Barber v. Lal Singh, 9 Cir., 1957, 247 F.2d 213. In my opinion the plaintiff's application for suspension of deportation was governed by the provisions of subsection 19(c)......