Gonzales v. Barber

• Decision Date: 14 December 1953
• Docket Number: No. 13566.,13566.
• Citation: 207 F.2d 398
• Parties: GONZALES v. BARBER, District Director, Immigration and Naturalization Service, San Francisco, Cal.
• Court: U.S. Court of Appeals — Ninth Circuit

207 F.2d 398 (1953)

GONZALES v. BARBER, District Director, Immigration and Naturalization Service, San Francisco, Cal.

No. 13566.

United States Court of Appeals, Ninth Circuit.

September 15, 1953.

Writ of Certiorari Granted December 14, 1953.

Gladstein, Andersen & Leonard, Lloyd E. McMurray, San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and HEALY and BONE, Circuit Judges.

Writ of Certiorari Granted December 14, 1953. See 74 S.Ct. 274.

DENMAN, Chief Judge.

This is an appeal from a judgment of the United States District Court for the Northern District of California, denying a petition for a writ of habeas corpus to a native of the Philippine Islands held for deportation.

The questions presented are: (1) whether appellant has been twice convicted of crimes involving moral turpitude and (2) whether the lawful coming into the continental United States from its possession the Philippine Islands by a native thereof prior to the Philippine Independence Act of 1934, 48 Stat. 456, is an "entry" into the United States within the provisions of § 19 of the Immigration Act of 1917, formerly 8 U.S.C. § 155.¹

Gonzales, a native of the Philippine Islands, lawfully came into the continental United States at the age of 17 in 1930, and has since resided there. In 1941, he was charged with the crime of assault with a deadly weapon with the intent to commit murder. He was tried and convicted of the lesser crime of assault with a deadly weapon, and was sentenced to a term of one year in the Alameda County Jail, of which he served ten months. In 1950, Gonzales was convicted of the crime of second-degree burglary and was sentenced under Washington's indeterminate sentence law to the State Penitentiary at Walla Walla and there served two years.

A warrant of arrest was issued by the Immigration and Naturalization Service on October 4, 1950, charging that after his entry into the United States he had "been sentenced more than once to imprisonment for terms of one year or more because of conviction in this country of crimes involving moral turpitude, committed after entry, to-wit: Assault with a deadly weapon, and burglary in the second degree." Warrant hearing proceedings were then held at which appellant was represented by counsel, and thereafter a warrant for the deportation was issued on July 25, 1951.

After the Order of Deportation had been issued, appellant petitioned for a writ of habeas corpus to the United States District Court for the Western District of Washington, Northern Division. The petition was denied. Thereafter, Gonzales was transferred to San Francisco to effect his deportation. There, the current petition for habeas corpus was filed and denied by the district court and this appeal followed.

Gonzales first claims that the crime of assault with a deadly weapon, of which he was convicted in the California courts, does not — under the circumstances involved — constitute a crime involving moral turpitude. He argues that the crime was only a misdemeanor inasmuch as he was not sentenced to the State Prison. See California Penal Code, § 17. While this is true, it is irrelevant. The gravity of the punishment imposed upon the alien is not determinative of the question of whether the crime is one involving moral turpitude. U. S. ex rel. Zaffarano v. Corsi, 2 Cir., 63 F.2d 757.

Secondly, he argues that the crime is not, per se, one which involves moral turpitude. A California case is cited in which it was held that an assault with a deadly weapon was not such a crime for purposes of disbarment of an attorney. In the Matter of Disbarment of Rothrock, 16 Cal.2d 449, 106 P.2d 907, 131 A.L.R. 226. However, there the California court was concerned with whether the crime involved such moral turpitude as to reflect upon the attorney's moral fitness to practice law, a state question. Here we are faced with the federal question of whether the crime involves such moral turpitude as to show that the alien has a criminal heart and a criminal tendency — as to show him to be a confirmed criminal. Fong Haw Tan v. Phelan, 333 U.S. 6. 9, 68 S.Ct. 374, 92 L.Ed. 433. In the federal law, assault with a deadly weapon is such a crime. U. S. ex rel. Zaffarano v. Corsi, supra; U. S. ex rel. Mazzillo v. Day, D.C.S.D.N.Y., 15 F.2d 391; U. S. ex rel. Ciccerelli v. Curran, 2 Cir., 12 F.2d 394; Weedin v. Tayokichi Yamada, 9 Cir., 4 F.2d 455.

Gonzales next contends that he is not within the statutory class referred to in the deportation order. He claims that he is not an alien but a national of the United States. This contention is without merit. Gonzales became an alien on July 4, 1946, upon the proclamation of Philippine Independence. Mangaoang v. Boyd, 9 Cir., 205 F.2d 553; Cabebe v. Acheson, 9 Cir., 183 F.2d 795.

Gonzales claims that he is not within the intent of § 19 of the Immigration Act of 1917, former 8 U.S.C.A. § 155 (the applicable portions of which are set forth in the margin).² His argument essentially is that he was not an alien until Philippine Independence and hence that as to acts occurring prior to the time the statute is inapplicable. Section 8(a) (1) of the Philippine Independence Act of 1934, 48 Stat. 456, 462, provides in part that: "For the purposes of the Immigration Act of 1917 * * * and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens."

The District Director argues that this statute compels a conclusion that Gonzales was to be treated as an alien at the time he was convicted of assault with a deadly weapon in 1941. The Immigration Act of 1917 was one of the statutes specifically envisioned by Congress in providing that for its purposes Filipinos "shall be considered as if they were aliens." Since both convictions occurred after the effective date of the Philippine Independence Act of 1934, Gonzales is properly subject to deportation under § 19 of the Immigration Act of 1917 if he is otherwise subject to its terms.

Gonzales contends that he is not otherwise subject to the terms of that statute, because when he came into the United States in 1930, he did not make the "entry" required by § 19 of the Immigration Act of 1917 cited supra. This contention is meritorious. In Mangaoang v. Boyd, supra, it was stated, one judge reserving judgment, that a Filipino who came into the United States prior to the Philippine Independence Act had not technically "entered" the United States and hence that Section 22 of the Internal Security Act of 1950 U.S.Code Congressional Service 1950, p. 984 (providing that aliens who, at the time of entering the United States or at any time thereafter, are members of the Communist Party of the United States, shall be deported) was inapplicable. Here we are dealing with the portion of Section 19 of the Immigration Act of 1917 concerning convictions for two crimes involving moral turpitude "committed at any time after entry". The question then is whether Gonzales had made an "entry" as that word is used in the clause last quoted.

In U. S. ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 77 L.Ed. 1298, "entry" was defined as including "any coming of an alien from a foreign country into the United States." This definition was followed in subsequent cases, Delgadillo v. Carmichael, 332 U. S. 388, 68 S.Ct. 10, 92 L.Ed. 17; U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, and has been adopted by the Immigration and Nationality Act of 1952, § 101(a) (13).³ At the time Gonzales arrived in this country in 1930, he was not an alien and hence not covered though coming from a foreign country or outlying possession, but was a United States national coming from an outlying possession. There has been no "entry" by an alien, and hence there have not been two crimes involving moral turpitude "committed at any time after entry". It follows that Gonzales is not subject to deportation under Section 19 of the Immigration Act of 1917.

We recognize the fact that this definition of the word "entry" is not its plain and obvious meaning, but we also recognize that the word has become a word of art. While it is true that the ultimate holdings in Volpe v. Smith, supra, and U. S. ex rel. Schlimmgen v. Jordan, supra, were that the coming of an alien into the United States for the second time was an "entry," we do not rely upon the holding of these cases but merely cite them as showing the narrow meaning which has been ascribed to the word.

To the contention that the holdings in Delgadillo v. Carmichael, supra, and Di Pasquale v. Karnuth, 2 Cir., 158 F.2d 878, were necessary to avoid an obvious injustice and hence do not support our position, it should be noted that not all judges agree on what is an "obvious injustice"; in fact this court did not see the obvious injustice in the Delgadillo case, Del Guercio v. Delgadillo, 9 Cir., 159 F.2d 130. No appellate case has been found which ascribes any other meaning to the term "entry" than that used here. The meaning of a term used in a statute cannot mean one thing for one situation and something else for a different situation else the law would not have that reasonable certainty which the people have a right to expect.

The definition of entry set out in § 101(a) (13) of the Immigration and Nationality Act of 1952 is not cited because we think it controlling in this case, but only because it shows that Congress, in revising the immigration and nationality laws, recognized what we hold to be the judicial meaning of the term in relation to immigration and nationality statutes.

For the contention that we should give the plain and ordinary meaning of the word entry is quoted a passage written by Justice Rutledge speaking for a majority of the Supreme Court in a case...