Ex parte Eng

• Decision Date: 16 March 1948
• Docket Number: No. 27735.,27735.
• Citation: 77 F. Supp. 74
• Court: U.S. District Court — Northern District of California
• Parties: Ex parte ENG.

77 F. Supp. 74

Ex parte ENG.

No. 27735.

District Court, N. D. California, S. D.

March 16, 1948.

Walter E. Hettman and Chan Chun Wing, both of San Francisco, Cal., for petitioner.

Frank J. Hennessy U. S. Atty., and Edgar R. Bonsall, Asst. U. S. Atty., of San Francisco, Cal., for respondent.

GOODMAN, District Judge.

Petitioner seeks a writ of habeas corpus, to avoid deportation to China pursuant to an order of the Attorney General of the United States. The cause is under submission to this Court upon the petition for the writ, the respondent's (Commissioner of Immigration) return to the order to show cause,—to which is appended the petitioner's immigration record, — and the briefs on file.

The following facts appear from the record before the Court: Petitioner is an alien Chinese, who lawfully entered the United States in 1923 and has ever since resided here. On July 30, 1942, an indictment was returned against him in the Northern division of this District charging him with concealing and facilitating the concealment of opium, contrary to the provisions of 21 U.S.C.A. § 174, Jones-Miller Act May 26, 1922, c. 202, 42 Stat. 596. On the same day, petitioner entered a plea of guilty, following which the court ordered him placed on probation for a period of one year and suspended imposition of sentence accordingly. The terms of the probation have been fully complied with.

On March 17, 1943, after original and appeal proceedings before the Immigration authorities, a warrant was issued for petitioner's deportation to China because of his conviction for violation of the Jones-Miller Act. On August 5, 1946, petitioner, not yet having been deported, this court made and entered, on application of his counsel, its recommendation against deportation. The recommendation was pursuant to the provisions of Title 8 U.S.C.A. § 155(a). Notwithstanding the court's recommendation against deportation, the respondent Commissioner claims the right to and therefore intends to deport petitioner. Hence this application for writ of habeas corpus.

Statutes Involved.

Petitioner was convicted on his plea of guilty of violating the following provisions of the Jones-Miller Act, 21 U.S.C.A. § 174: "If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisiction, contrary to law, or assists in so doing or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than ten years. * * *" Feb. 9, 1909, c. 100, Sec. 2, 35 Stat. 614; May 26, 1922, c. 202, Sec. 1, 42 Stat. 596.

By Act of May 26, 1922 the Jones-Miller Act supra, was amended to add the following provisions appearing in 21 U.S.C.A. as Section 175: 21 U.S.C.A. § 175: "Any alien who at any time after his entry is convicted under section 174 of this title shall upon the termination of the imprisonment imposed by the court upon such conviction and upon warrant issued by the Secretary of Labor be taken into custody and deported in accordance with the provisions of sections 155 and 156 of Title 8 or provisions of law hereafter enacted which are amendatory of or in substitution for such sections." Feb. 9, 1909, c. 100, Sec. 2, 35 Stat. 614; May 26, 1922, c. 202, Sec. 1, 42 Stat. 596.

By Act of February 18, 1931, as amended June 28, 1940, 8 U.S.C.A. § 156a, Congress provided as follows: 8 U.S.C.A. § 156a. "Any alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this section) who, after February 18, 1931, shall be convicted for violation of or conspiracy to violate any statute of the United States or any State, Territory, possession, or of the District of Columbia taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any salt, derivative, or preparation of opium or coca leaves, shall be taken into custody and deported in manner provided in sections 155 and 156 of this title." Feb. 18, 1931, c. 224, 46 Stat. 1171.

The amendment of 1940 to Section 156a struck out after the word "convicted," the words "and sentenced."

The deportation proceedings against petitioner were pursuant to section 156a as amended in 1940. By its terms Sec. 156a adopts the manner of deportation provided in 8 U.S.C.A. § 155. Subsection (a) of Section 155 contains the provisions relating to recommendations against deportation and in this respect provides: 8 U.S.C.A. § 155 (a). "* * * The provisions of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this chapter; * * *." Feb. 5, 1917, c. 29, Sec. 19, 39 Stat. 889.

Immediately following the above provisions of 155(a) it is provided: "nor shall any alien convicted as aforesaid be deported until after the termination of his imprisonment."

8 U.S.C.A. § 180b provides: 8 U.S.C.A. § 180b. "An alien sentenced to imprisonment shall not be deported under any provision of law until after the termination of the imprisonment. For the purpose of this section the imprisonment shall be considered as terminated upon the release of the alien from confinement, whether or not he is subject to rearrest or further confinement in respect of the same offense." Mar. 4 1929, c. 690, Sec. 3, 45 Stat. 1552.

Contentions and Issues.

Counsel for petitioner contends:

(1) The court's recommendation against deportation, made and entered four years after defendant was placed on one year's probation, was nevertheless timely under 8 U.S.C.A. § 155(a) because sentence having been suspended and never thereafter imposed, the Court still (i. e. at the time of recommendation against deportation) had power to sentence petitioner. Federal Probation Act, 18 U.S.C.A. § 725.

(2) That 8 U.S.C.A. § 155(a) and 8 U.S. C.A. § 180b, each contemplate the deportation of an alien convicted of violation of the narcotic statutes only after termination of an actual imprisonment.

(3) That petitioner is an addict and hence not deportable under 8 U.S.C.A § 156a.

Counsel for respondent contends:

(1) The portion of Section 155(a) relating to recommendations against deportation is no part of the manner of deportation. It therefore does not apply to aliens deportable under 8 U.S.C.A. § 156a by reason of conviction of a narcotic violation because it is only the manner of deportation outlined in Section 155(a) which is adopted by Section 156a. But even regarded as part of the manner of deportation, the court's recommendation against deportation, having been made more than thirty days after the entry of the order placing petitioner on probation and suspending imposition of sentence, came too late under 8 U.S.C.A. § 155(a).

(2) Imprisonment is not a condition precedent to deportation of such alien under 8 U.S.C.A. § 155(a) 8 U.S.C.A. § 180b or 21 U.S.C.A. § 175 because these sections merely postpone deportation until termination of imprisonment, if sentence of imprisonment be followed by an actual confinement.

(3) The Immigration records affirmatively establish, by petitioner's own testimony given at the deportation hearing, that petitioner is not an addict.

The issues to be decided are:

I. (a) Are the provisions of Section 155(a) relating to recommendations against deportation part of the manner of deportation and therefore applicable to aliens subject to deportation under Sec. 156a?

(b) Was the order of July 30, 1942 placing petitioner on probation and suspending sentence, itself a passing of sentence as well as an imposition of judgment, within the meaning of 8 U.S.C.A. § 155(a), thereby making the recommendation against deportation more than thirty days later, ineffectual?

II. Must petitioner have been actually imprisoned as a result of his conviction, and must imprisonment have terminated, before he is subject to deportation?

III. Is petitioner an addict exempt from deportation?

Discussion.

I. (a) Section 156a, Title 8 U.S. C.A., pursuant to which petitioner is to be deported, provides that aliens convicted of violation of the narcotic laws shall be taken into custody and deported "in the manner" provided in Section 155. In Dang Nam v. Bryan, 9 Cir., 74 F.2d 379, 380, it was held that sentence is part of the manner of deportation within the meaning of Section 155 (a). It is true that Dang Nam v. Bryan was decided in 1934 at a time when Section 156a provided for the deportation of aliens convicted and sentenced. By the 1940 amendment to Section 156a aliens merely convicted of narcotic violations were made deportable, the words "and sentenced" having been stricken. Since some form of sentence impliedly follows conviction,¹ it is obvious that sentence is still a part of the "manner" of deportation, and hence Dang Nam v. Bryan supra, is still apposite.²

(b) We come to the major issue— the timeliness of the court's recommendation against deportation. The imposition of any sentence of fine and imprisonment within the limits prescribed by 21 U.S.C.A. § 174, for the offense for which petitioner was convicted, was suspended by the probation order of July 30, 1942. There is no dispute about the fact that under the Federal Probation Act., 18 U.S.C.A. § 725,³ and the cases interpreting it, (Frad v. Kelly, 302 U.S. 312, 58...