Cadby v. Savoretti, 17039

• Decision Date: 18 June 1958
• Docket Number: No. 17039,17048.,17039
• Citation: 256 F.2d 439
• Parties: Carl Fraser CADBY, Appellant, v. Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Appellee. Frederic Arthur BRUNT, Appellant, v. Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 439 (1958)

Carl Fraser CADBY, Appellant, v. Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Appellee.

Frederic Arthur BRUNT, Appellant, v. Joseph SAVORETTI, District Director, United States Immigration and Naturalization Service, Miami, Florida, Etc., Appellee.

Nos. 17039, 17048.

United States Court of Appeals Fifth Circuit.

June 18, 1958.

David W. Walters, Miami, Fla., for appellant.

Richard R. Booth, Asst. U. S. Atty., Miami, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., Gilbert Zimmerman, Regional Counsel Immigration and Naturalization Service, Richmond, Va., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The principal question in these two cases briefed and argued together, though tried on separate records, is whether in a post-1952 deportation proceeding, the alien is entitled to have the Attorney General entertain an application for discretionary relief authorized under the 1917, but not under the 1952, Act, and, as a corollary to it, whether the Savings Clause of Section 405(a) of the 1952 Act, 8 U.S.C.A. § 1101 note affords the alien any such relief.

Deportation is on the basis that at the time of the last entry, each was excludable. Since, prior to that entry, each had had an extended residence long in excess of seven years, the relief specifically sought is that accorded by the Seventh Proviso of Section 3 of the Immigration Act of February 5, 1917 which provided:

"that aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such condition as he may prescribe."

Reliance on the 1917 Act is necessary because, in contrast to its terms which do not require seven years lawful continuous residence, that is the requirement of its counterpart Section 212(c) in the 1952 Act:

"(c) Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a). * * * Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b) * * *." 8 U.S.C.A. § 1182.

As it is unquestioned that the 1952 Act expressly repealed¹ the Immigration Act of 1917, the aliens attempt to circumvent that by the argument that since excludability at the time of the last entry was on the basis of the 1917 Act sauce for both goose and gander, National Rag & Waste Co. v. United States, 5 Cir., 237 F.2d 846, requires that one subject to the pains and disadvantages of the 1917 Act is entitled to its benefits. But the argument falls from the defect in the major premise.

The minute facts concerning Cadby² or Brunt³ are of little consequence. Each made an illegal entry, Cadby in 1952 and Brunt in 1951, both at times prior to December 24, 1952, the effective date of the Immigration and Nationality Act of 1952. At that time each of them was subject to exclusion under the then applicable Act,⁴ Section 3, Immigration Act of 1917, as a person who had been convicted of having committed a felony or other crime or misdemeanor involving moral turpitude.

But of course the sanction being asserted in these proceedings is not exclusion, it is deportation. And for deportation, it rests on the law applicable at the time deportation is asserted. This was, of course, Section 241(a) (1), 8 U.S.C.A. § 1251(a) (1), which provides:

"(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who —

"(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry."

This was not, as the aliens would have us believe, the momentary resuscitation of the 1917 Act, whose demise was otherwise complete and final, note 1, supra, as a basis for deportation. On the contrary, it was Congress, legislating in 1952, prescribing the standards which currently would be applied. These currently prescribed standards were those which had formerly applied. This did not revive the old. The old merely became a part of the new. This was particularly true of this complex legislation which plainly reflected a comprehensive purpose to cover the past and the future, and to make much of it retroactive⁵ in nature.

It should be borne in mind that we are not here dealing with the attempted deportation of aliens who subsequent to their last entry had acquired any supposed right to remain in this country. Consequently the problem reserved in Shomberg v. United States, 348 U.S. 540, 543, 75 S.Ct. 509, 99 L.Ed. 624, 628, footnote 3, is not before us. Ours is the much narrower one: since Cadby in early 1952 and Brunt in 1951 might have applied to the Attorney General for Seventh Proviso discretionary relief which, if granted, would have entitled each of them to admission on conditions specified, does that "right" continue perpetually until exhausted by an application and denial of discretionary relief?

Certainly it does not by the terms of the 1917 Act, for it was repealed, note 1, supra, and after December 24, 1952, had no further effect. The only way this result can come about is through the Savings Clause in Section 405(a) in the 1952 Act. It provides⁶ that "* * * unless otherwise specifically provided * * *" for therein "nothing contained in this Act" shall be construed to affect "* * * any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing * * *, or matter * * * done or existing, at the time this Act shall take effect."

Section 405(a) is unavailing for two reasons. First, the Act has "otherwise specifically provided" for this situation. In Section 212 (8 U.S.C.A. § 1182), the 1952 Act prescribes the standards of excludability, and in Section 241 (d) (8 U.S.C.A. § 1251(d)), note 5, supra, it expressly provides that deportability shall be retroactive. Similarly, the area of the Attorney General's administrative relief was sharply changed⁷ under Section 212(c) of the 1952 Act. As a basis for exercise of the Attorney General's discretion, the return must be to a "lawful unrelinquished domicile" and only aliens "lawfully admitted for permanent residence" are eligible to apply. Cadby was never lawfully admitted since his felonies were committed prior to his initial entry. Brunt commenced his residence as one lawfully admitted for permanent residence, but lost that in 1944 by a valid deportation so that his return could not have been to "a lawful unrelinquished domicile of seven consecutive years."

If Congress is deemed, as the Court held it was, Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122; Lehmann v. United States ex rel. Sciria, 6 Cir., 248 F.2d 519, to have required deportation because of prior events of aliens currently enjoying residence, then the Savings Clause warrants parallel construction that the situation has been "otherwise specifically provided" for when the aliens, as here, have only a tenuous residence which, under the old law, might, if administrative relief had been sought and if sought, granted, have permitted either their return or continued stay.

Second, the Savings Clause cannot here operate because there is no "status, condition or, right in process of acquisition." It was sometime in 1949 when Brunt made what he claims was his latest application for administrative relief. Cadby's was in 1952, the last step being the rejection by the Toronto Consulate in May 1952, note 2, supra. In no sense was either application a pending unresolved open matter. United States er rel. Zacharias v. Shaughnessy, 2 Cir., 221 F.2d 578. All that had been sought had been denied. The decision was known in each case before December 24, 1952, and no steps had been taken by either toward staying the effect of any such denial or seeking the benefit of reconsideration or rehearing. Shintaro Miyagi v. Brownell, 97 U.S.App.D.C. 18, 227 F.2d 33. Nor was the benefit of the Seventh Proviso that type of right which might be characterized as a continuing inchoate one, the mere existence of which might keep it alive. Cf. United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615 and Shomberg v. United...