Fong Haw Tan v. Phelan
| Citation | 162 F.2d 663 |
| Decision Date | 25 June 1947 |
| Docket Number | No. 11447.,11447. |
| Parties | FONG HAW TAN v. PHELAN, Acting District Director, Immigration and Naturalization Service, Port of San Francisco, Cal. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thos. C. Lynch and Wm. J. Chow, both of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Edgar R. Bonsall, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before STEPHENS, HEALY and ORR, Circuit Judges.
Fong Haw Tan seeks release from custody of the acting District Director, Immigration and Naturalization Service, Port of San Francisco, California, by habeas corpus proceedings. After issuance of a show cause order, the court dismissed the petition, and petitioner appeals.
Appellant, a native of China, was admitted into this country in August, 1910, as a permanent resident, and has resided here ever since. On June 11, 1925, he was indicted for the murder of two persons in separate counts of the same bill. Therein he was charged with having committed both crimes on May 22, 1925. He was convicted on both counts by the same jury on July 25, 1925. Thereafter, a distinct and separate sentence of imprisonment in the state penitentiary for the term of his natural life was pronounced upon him upon each conviction. Both crimes involved moral turpitude. The point for decision involves construction of 8 U.S.C.A. § 155(a), the relevant part of which is set out in the margin.1
The Director claims that appellant has been sentenced twice in the circumstances required by the statute for deportation, while appellant claims that, giving full weight to the purpose of the act, he has been sentenced but once, and hence, having resided here more than five years before the crimes were committed, he is not subject to deportation.
There were, as has been seen, two pronouncements of sentence upon two verdicts of guilty. Both were for imprisonment for life. In the nature of things the sentence cannot be served twice; hence, says appellant, there was but one sentence to serve.
The primary fault with appellant's reasoning is that the service of the sentence is taken as the basis for applying the statute, while nothing is said in the statute about service of the sentence. What the Congress had in mind was that one who accepts the hospitality of this free country should not violate its laws. After five lawabiding years, one law infraction of the nature defined in the statute would not be taken as wholly unfitting the alien for continued residence, but two or more such infractions would do so. It thus happens that deportation results from and because of the commission of the base deed. The sentence is but the official seal that the crime was committed by the alien.
The exact point was given close analysis by this court in Nishimoto v. Nagle, 9 Cir., 44 F.2d 304, and at page 306 said: "The purpose of Congress undoubtedly was to provide for the deportation of a man who committed more than one offense involving moral turpitude for which he had been convicted and upon which conviction and sentence has been imposed; whether the sentence run concurrently or consecutively is entirely immaterial from the standpoint of the purpose of the law." Appellant, however, does not present his point without high authority, for, in considering the question where conviction had been had on more than one count for arson and the same term of imprisonment had been adjudged for each count, all to run concurrently, the second circuit court said: United States ex rel. Mignozzi v. Day, 2 Cir., 51 F.2d 1019, at page 1021.
No exception to the philosophical statement can be taken, but giving it full application to the statute, we think it does not at all follow that an alien who has twice offended is not subject to deportation. It appears...
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U.S. v. Nunez-Garcia
...of imprisonment in excess of 6 months...." 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Murder is a crime of moral turpitude. Fong Haw Tan v. Phelan, 162 F.2d 663, 664 (9th Cir.1947), rev'd on other grounds, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948). Murder is also an aggravated felony. 8 U.S.C. §......
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