Fong Haw Tan v. Phelan

• Decision Date: 02 February 1948
• Docket Number: No. 370,370
• Citation: Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948)
• Parties: FONG HAW TAN v. PHELAN, Acting District Director, Immigration and Naturalization Service
• Court: U.S. Supreme Court

333 U.S. 6

68 S.Ct. 374

92 L.Ed. 433

FONG HAW TAN

v PHELAN, Acting District Director, Immigration and Naturalization Service.

No. 370.

Argued Jan. 8, 9, 1948.

Decided Feb. 2, 1948.

Mr. Lambert O'Donnell, of Washington, D.C., for petitioner.

Beatrice Rosenberg, of Washington, D.C., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

An alien 'who is sentence more than once' to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude committed after his entry shall, with exceptions not material here, be deported. Section 19(a)¹ of the Immi- gration Act of February 5, 1917, 39 Stat. 889, as amended 54 Stat. 671, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a). It appears that petitioner, a native of China, was convicted of murder under each of two counts of an indictment, one count charging the murder of one Lai Quan, the other charging the murder on or about the same date of one Ong Kim.² The jury fixed the punishment for each murder at life imprisonment. He was thereupon sentenced to prison for the period of his natural life by one judgment, construed by the Circuit Court of Appeals to impose that sentence on him for each of the convictions. Sometime thereafter a warrant for his deportation to China issued. Later he was paroled, released from prison, and taken into the custody of the Immigration Service. He then filed a petition for a writ of habeas corpus challenging the legality of his detention. The District Court denied the petition on the authority of Nishimoto v. Nagle, 9 Cir., 44 F.2d 304. The Circuit Court of Appeals affirmed. 9 Cir., 162 F.2d 663. The case is here on a petition for a writ of certiorari which we granted because of the contrariety of views among the circuits concerning the meaning of the statutory words 'sentenced more than once.'

The Ninth Circuit view is that a conviction and sentence for more than one offense, whether at the same or different times and whether carrying concurrent or consecutive sentences, satisfy the statute. That was the position taken in Nishimoto v. Nagle, supra, and followed below. The Second Circuit holds that an alien who is given consecutive sentences is sentenced more than once, while an alien who is given concurrent sentences is not, even though the crimes are distinct. Johnson v. United States, 2 Cir. 28 F.2d 810; United States ex rel. Mignozzi v. Day, 2 Cir., 51 F.2d 1019. The Fourth Circuit takes the position that the statute is satisfied whether or not the sentences imposed run concurrently or consecutively provided that the two crimes which the committed and for which separate sentences are imposed arise out of separate transactions. Tassari v. Schmucker, 4 Cir., 53 F.2d 570. The Fifth Circuit takes the view that an alien is 'sentenced once when, after a conviction or plea of guilty, he is called before the bar and receives judgment, whether for one or several crimes, with one or several terms of imprisonment. He is sentenced more than once when that happens again.' Wallis v. Tecchio, 5 Cir., 65 F.2d 250, 252. That view is an adaptation of the position taken earlier by a District Court in the same circuit that Congress by this provision aimed to deport 'repeaters,' viz. 'persons who commit a crime and are sentenced, and then commit another and are sentenced again.' Opolich v. Fluckey, D.C. 47 F.2d 950.

The latter is the reading we give the statute. There is a trace of that purpose found in its legislative history. Congressman Sabath who proposed the provision as an amendment said it was aimed at the alien 'who is a criminal at heart, a man who is guilty of a second offense involving moral turpitude and for the second time is convicted.' 53 Cong.Rec. 5167. Congressman Burnett, who was in charge of the bill on the floor of the House, gave the same emphasis when he said that the amendment proposed 'that those who committed a second crime involving moral turpitude showed then a...