Gagliano v. Immigration and Naturalization Service

• Decision Date: 15 December 1965
• Docket Number: Docket 29445,29603.,No. 529,530,529
• Citation: 353 F.2d 922
• Parties: Giuseppe GAGLIANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. UNITED STATES ex rel. Giuseppe GAGLIANO, Relator-Appellant, v. P. A. ESPERDY, District Director of Immigration and Naturalization of United States for the New York District, or such other person, if any, as may have the said Giuseppe Gagliano, Relator, in Custody, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

353 F.2d 922 (1965)

Giuseppe GAGLIANO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

UNITED STATES ex rel. Giuseppe GAGLIANO, Relator-Appellant, v. P. A. ESPERDY, District Director of Immigration and Naturalization of United States for the New York District, or such other person, if any, as may have the said Giuseppe Gagliano, Relator, in Custody, Respondent-Appellee.

Nos. 529, 530, Docket 29445, 29603.

United States Court of Appeals Second Circuit.

Argued June 11, 1965.

Decided December 15, 1965.

Julius C. Biervliet, Legal Aid Society, New York City (Mary B. Tarcher, New York City, on the brief), for relator-petitioner-appellant.

James G. Greilsheimer, Sp. Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for So. District of New York and Francis J. Lyons, Special Asst. U. S. Atty., on the brief), for respondent.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Consolidated for consideration are two proceedings, one an appeal from an order of the United States District Court for the Southern District of New York, Bonsal, D. J., dismissing appellant Giuseppe Gagliano's petition for a writ of habeas corpus, and the other a petition to review an order of the Board of Immigration Appeals dismissing appellant's motion to reopen deportation proceedings that had been successfully instituted against him. Our principal concern is with the question of statutory construction with respect to Section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254.¹ The threshold issue originally posed was whether Section 244, which specifically excludes from its coverage aliens who entered the United States as crewmen, is applicable to an alien such as Gagliano who originally entered the United States as a crewman, was deported once for the commission of a Section 241(a) (11), 8 U.S.C. § 1251(a) (11) deportable offense,² subsequently unlawfully reentered the country as a stowaway, and is currently subject to an order of deportation resulting from the reinstatement of the first order. This question has now been resolved, however. The amendment of the Act effective December 1, 1965 removed the bar to relief in the case of crewmen who entered before July 1, 1964.

We therefore reach the question whether Gagliano comes within the scope of subsection (a) (1) or (a) (2) of Section 244 since each subsection imposes different conditions which the deportable alien must satisfy before he is entitled to apply for relief by way of suspension. In view of the fact that appellant's current deportation order is grounded on the original deportable offense, one of the grounds specifically enumerated in subsection (a) (2), and because the two subsections are mutually exclusive, we hold that subsection (a) (1) is inapplicable to Gagliano and that he comes under subsection (a) (2). We further hold the District Court's ruling correct that appellant's twenty-eight years continuous residence in this country following the commission of the 241(a) (11) deportable offense does not satisfy the ten year residence requirement under subsection (a) (2), for the ten year period commences to run from the time that he committed the last deportable offense for which deportation is sought. The District Court's denial of appellant's petition for a writ of habeas corpus is accordingly affirmed.

We also agree with the Board's finding, largely based on appellant's own testimony, that appellant reentered the United States in 1958 thus making him ineligible in any case for relief under subsection (a) (1) since that subsection requires seven years continuous residence in this country immediately prior to the making of the application. Appellant, in moving the Board to reopen the deportation proceedings, contended simply that he had been present in the United States since 1957 and that accordingly he was entitled to apply for the discretionary relief afforded by (a) (1); the Board correctly predicated its refusal to grant the motion on appellant's failure to produce some concrete documentary evidence to that effect. We therefore dismiss appellant's petition for review of the Board order, noting also that since subsection (a) (2) is applicable to the exclusion of (a) (1), his application to the Board under (a) (1) would have been faulty in any event.

I. FACTUAL AND JURISDICTIONAL BACKGROUND

Gagliano first gained entry to this country in 1921 at Boston, Massachusetts as a crewman on a foreign freighter. He continuously resided here, raising a family in the ensuing years, until 1955 when he was deported for having been convicted in 1927 of unlawfully selling narcotics, a deportable offense under Section 241(a) (11). During his thirty-four years of residence here he was arrested on three other occasions; twice the charges were dropped, and once he was convicted and later pardoned. In 1958 he reentered the United States illegally as a stowaway and successfully eluded the authorities until 1961 when he was finally apprehended. Deportation proceedings were immediately commenced against him under Section 242 (f), 8 U.S.C. § 1252(f),³ which directs the Attorney General of the United States to reinstate the original deportation order in cases where it is found that the alien has unlawfully entered the United States after having been previously deported pursuant to an order of deportation on one of the grounds specified in Section 242(e), i. e., Section 241 (a) (11). A deportation hearing was conducted before a Special Inquiry Officer as is required under Section 242(b), 8 U.S.C. § 1252(b).⁴ He found the facts to be as alleged by the immigration authorities and reinstated the original deportation order. Gagliano's appeal to the Board of Immigration Appeals was dismissed subject to further consideration if he proved successful in setting aside the narcotics conviction in coram nobis proceedings which he had already instituted, contending that he was innocent and that he neither had nor was offered the assistance of counsel. The Board's dismissal became final when this court affirmed the District Court's denial of the coram nobis application,⁵ United States v. Castelli, a/k/a Gagliano, 306 F.2d 640 (2 Cir.), and the Supreme Court denied certiorari, 371 U.S. 921, 83 S.Ct. 290, 9 L.Ed.2d 231 (1962).

In January 1963, the Board denied Gagliano's petition to reopen his deportation case in order that he might apply for suspension of the deportation order pursuant to Section 244(a) (2). The Board grounded its refusal on its finding that appellant did not have the requisite continuous physical residence in the United States to qualify for the discretionary relief afforded by Section 244(a) (2), or 244(a) (1) for that matter. Gagliano then proceeded to bring a declaratory judgment action in the District Court seeking judicial review of the Board's action. The Government moved for summary judgment, and the motion came before District Judge Bryan who reserved judgment pending the Supreme Court's review of Giova v. Rosenberg, 308 F.2d 347 (9 Cir.1962), which posed the question whether Section 106 of the Immigration Act, 8 U.S.C. § 1105a, conferred initial jurisdiction upon the Court of Appeals, to the exclusion of the District Court, to review denials by the Immigration Board. Following the Court's resolution of the issue in favor of jurisdiction in the Court of Appeals, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964), Judge Bryan filed a memorandum decision dismissing Gagliano's action for lack of jurisdiction. Appellant's subsequent petition for review of the Board decision addressed to this court, brought more than six months after the Board denial, was dismissed because the appeal had not been perfected within the six-month time bar specified in Section 106 (a) (1), 8 U.S.C. § 1105a(a) (1). Gagliano v. Immigration and Naturalization Service, December 23, 1964, Docket No. 29294. We noted at the time that the harshness of the result — the delay had been caused by Judge Bryan's reserving decision — was compensated by the availability to Gagliano of the statutory right to apply for a writ of habeas corpus.

Gagliano then proceeded in two different directions. He filed a petition with the Board to reopen his deportation proceedings, contending that he reentered the United States in January or February 1957 rather than in the fall of 1958 and that accordingly he had satisfied the seven year residence requirement of Section 244(a) (1). As already indicated, the Board found against him on the factual issue; the Board further noted by way of information that the reinstatement of the deportation order is merely a procedural matter under Section 242 (f) and that accordingly the ground for deportation remains the commission of the 241(a) (11) offense, rather than the earlier order of deportation. (Thus, the Board inferred that Section 244(a) (1) is inapplicable.)

Gagliano also sought relief in the District Court where he filed a petition for writ of habeas corpus under Section 106 (a) (9), 8 U.S.C. § 1105a(a) (9). The District Court, Bonsal, D. J., denied the application, holding that Gagliano did not come within either of the classes provided in subsections (a) (1) or (a) (2) of Section 244. United States ex rel. Gagliano v. Esperdy, 239 F.Supp. 968 (S.D.N.Y. 1965). First of all, the court held he did not come within subsection (a) (1) because his narcotics conviction rendered him deportable under a ground enumerated in subsection (a) (2). Secondly, subsection (a) (2) was found to be inapplicable since Gagliano, by illegally reentering the country in 1957 or 1958 as a stowaway, committed an act which constituted a ground for deportation and hence had not satisfied the ten year residence requirement even though he was being deported on the basis of the earlier deportation order. The statutory language "ten years immediately following the commission of an act * * * constituting a ground for deportation" was construed to mean...