Fong Haw Tan v. Phelan, No. 370

CourtUnited States Supreme Court
Writing for the CourtDOUGLAS
Citation68 S.Ct. 374,333 U.S. 6,92 L.Ed. 433
PartiesFONG HAW TAN v. PHELAN, Acting District Director, Immigration and Naturalization Service
Docket NumberNo. 370
Decision Date02 February 1948

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.

Page 7

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-

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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

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sentences imposed run concurrently or consecutively provided that the two crimes which the committed and for which...

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285 practice notes
  • De Lima v. Sessions, No. 15-2453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 16, 2017
    ..., 543 U.S. at 11 n.8, 125 S.Ct. 377 ; INS v. St. Cyr , 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ; Fong Haw Tan v. Phelan , 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948) ("We resolve the doubts in favor of [the alien] because deportation is a drastic measure...."). Nothi......
  • Iddir v. I.N.S., No. 01-3799.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 6, 2002
    ...225, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966); Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948). The term "judgment" is used more than twelve times throughout the Immigration and Naturalization Act ......
  • Costello v. Immigration and Naturalization Service, No. 83
    • United States
    • United States Supreme Court
    • February 17, 1964
    ...on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.' Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433. Adoption of the petitioner's construction of § 241(a)(4) does not end our inquiry, however, for the respondent u......
  • Castaneda-Gonzalez v. Immigration and Naturalization Service, CASTANEDA-GONZALE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 27, 1977
    ...347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954) (meaning of "entry" within § 19(a) of Immigration Act of 1917); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948) (meaning of "sentenced more that once" within § 19(a)); see C. Gordon & H. Rosenfield, Immigration Law and P......
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283 cases
  • De Lima v. Sessions, No. 15-2453
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 16, 2017
    ..., 543 U.S. at 11 n.8, 125 S.Ct. 377 ; INS v. St. Cyr , 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ; Fong Haw Tan v. Phelan , 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948) ("We resolve the doubts in favor of [the alien] because deportation is a drastic measure...."). Nothi......
  • Iddir v. I.N.S., No. 01-3799.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 6, 2002
    ...225, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966); Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948). The term "judgment" is used more than twelve times throughout the Immigration and Naturalization Act ......
  • Costello v. Immigration and Naturalization Service, No. 83
    • United States
    • United States Supreme Court
    • February 17, 1964
    ...on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.' Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433. Adoption of the petitioner's construction of § 241(a)(4) does not end our inquiry, however, for the respondent u......
  • Castaneda-Gonzalez v. Immigration and Naturalization Service, CASTANEDA-GONZALE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 27, 1977
    ...347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954) (meaning of "entry" within § 19(a) of Immigration Act of 1917); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948) (meaning of "sentenced more that once" within § 19(a)); see C. Gordon & H. Rosenfield, Immigration Law and P......
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2 books & journal articles
  • IMMIGRATION LAW - EXPANDING CRIMES INVOLVING MORAL TURPITUDE: NIGERIAN REFUGEE DEPORTED FOR FAILING TO REGISTER AS SEX OFFENDER - BAKOR V. BARR.
    • United States
    • Suffolk Transnational Law Review Vol. 44 Nbr. 1, January 2021
    • January 1, 2021
    ...if the crime they are convicted of a crime involving moral turpttude. Id. at [section] 1227(a)(2)(A). See also Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (analogizing deportation with exile). In Fong Haw Tan, the Court analogized that deportation is "at times the equivalent of banishment......
  • Restructuring Public Defense After Padilla.
    • United States
    • Stanford Law Review Vol. 74 Nbr. 1, January 2022
    • January 1, 2022
    ...see generally Shalini Bhargava Ray, Immigration Law's Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021). (12.) Fong Haw Tan v. Phelan, 333 U.S. 6,10 (1948); see also Lehmann v. United States ex rel. Carson, 353 U.S. 685, 691 (1957) (opinion of Black, J.) ("To banish [the noncitizen resp......

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