Gubbels v. Hoy, 15740.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation261 F.2d 952
Docket NumberNo. 15740.,15740.
PartiesJacques Arthur GUBBELS, Appellant, v. Richard C. HOY, as District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
Decision Date14 November 1958

Marshall E. Kidder, Los Angeles, Cal., Arthur J. Phelan, Milton T. Simmons, Phelan & Simmons, San Francisco, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Alfred B. Doutre, Richard A. Lavine, Jordan A. Dreifus, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before ORR, POPE and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

After hearing before a special inquiry officer of the Immigration and Naturalization Service, and rejection of his appeal by the Board of Immigration Appeals, appellant, an alien and native of Belgium, was ordered deported from the United States on the ground that he had after entry been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, within the meaning of § 241 (a) (4) of the Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1251(a) (4)).1

Plaintiff arrived in the United States with his parents on February 3, 1948 and was admitted for permanent residence. He was then 12 years of age. In 1952 he enlisted in the United States Army and on September 13, 1954, while serving in Germany with the American Armed Forces he was convicted of two offenses. The conviction by court-martial was for larceny committed on March 16, 1954 when he was charged with stealing a pistol, the property of the United States, of the value of more than $50; the second offense of which he was convicted, also by court-martial, was robbery on August 2, 1954. This charge was that by force and violence and against the will of the owner he stole an automobile of the value of more than $50. He was sentenced to confinement for five years and given a dishonorable discharge. After he was incarcerated in a federal correctional institution he was paroled on September 29, 1956.

Appellant's appeal to the Board of Immigration Appeals was dismissed on June 12, 1956. On September 18, thereafter, he brought this action in the court below seeking a review of the order for his deportation and of the deportation proceedings, and praying for declaratory relief and an injunction against the district director. His case was heard upon a pretrial stipulation and order setting forth the foregoing facts and raising the question whether a conviction by court-martial is sufficient to sustain a deportation order under the statute mentioned.2

The provisions of the subsection under which appellant was ordered deported (footnote 1, supra), must be read in connection with subdivision (b) of the same section 241 (Title 8, § 1251(b)).3 This provision, made specially applicable to subsection (a) (4), provides that the deportation shall not take place "if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation * * * that such alien not be deported. * * *" Briefly stated, the general contention of the appellant is that when subsection (a) (4) is read in conjunction with subsection (b) (2) we must hold that it refers only to sentences imposed by ordinary criminal courts and that sentences imposed by military courts or courts-martial are not within the contemplation of this provision; that the act and the section here in question must be given a strict and narrow construction so that all doubts be resolved in favor of the person sought to be deported. He emphasizes the well known distinctions between military tribunals and other courts, some of which were noted in U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, and says that from the nature of the case a court-martial is not in a position to act upon an application for recommendation of the kind referred to in subsection (b).

These contentions were rejected by the trial court which held that in respect to an officer or soldier the judgment of a court-martial has the same finality and conclusiveness which attends the judgments of a civil court in a case of which it takes cognizance. The court was of the view that the distinction between military tribunals and civil courts was well known to Congress which would have found no difficulty in excluding the convictions of the former if it had not intended for them to come within the meaning of the act. The court thought that the statute was unambiguous and that its plain language required a conclusion that convictions by courts-martial come within the meaning of the subsection here referred to.

Obviously the question here presented is a most difficult one. The point apparently has not been decided previously and we find nothing in the legislative history attending the enactment of this statutory provision which would tend to throw any light upon the intention of Congress in the use of the language in question. This appears to be one of those difficult cases in which so far as we can tell Congress did not have this sort of case in mind when the section was enacted. We are confronted with the problem discussed in Western Union Tel. Co. v. Lenroot, 323 U.S. 490, 508, 65 S.Ct. 335, 344, 89 L.Ed. 414, where the Court said: "Ascertainment of the intention of Congress in this situation is impossible. It is to indulge in a fiction to say that it had a specific intention on a point whch never occurred to it." To use the language of that case we must (323 U.S. at page 501, 65 S.Ct. at page 341,) "take the Act as Congress gave it to us, without attempting to conform it to any notions of what Congress would have done if the circumstances of this case had been put before it."

It seems plain that the qualifying provisions of subsection (b) are an important part of the legislative scheme expressed in subsection (a) (4). While that section makes a conviction there referred to ground for deportation, it is qualified in an important manner by the provision of subsection (b) (2) that if the court sentencing the alien makes the recommendation mentioned, then the provisions of subsection (a) (4) do not apply. This extends to the alien an important right or privilege. No doubt in most cases counsel for a convicted alien would by motion call this provision to the attention of the court where the judgment was imposed. It also seems plain that if a military court is so constituted or its procedures are such as to make this privilege extended by subsection (b) (2) not readily available to a convicted alien, then it would be a fair conclusion that convictions in a military court were not contemplated by subsection (a) (4).

There are important respects in which court-martial prosecutions differ from those in a civil court. Thus in Reid v. Covert, 354 U.S. 1, 38, 77 S.Ct. 1222, 1241, 1 L.Ed.2d 1148, Justice Black, speaking for four members of the Court, in announcing the Court's decision said: "It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law — law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms. It emphasizes the iron hand of discipline more than it does the even scales of justice." And he concluded by quoting from the opinion of the Court in Toth v. Quarles, supra, as follows (354 U.S. at page 39, 77 S.Ct. at page 1242): "In summary, `it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts'."

As suggested in Ex parte Quirin, 317 U.S. 1, 39, 63 S.Ct. 1, 87 L.Ed. 3, not all of the constitutional guarantees extended to defendants prosecuted in civil courts are available to an accused tried by a military tribunal.4 Thus in any case other than capital, depositions may be used against the accused (Art. 49, Uniform Code of Military Justice, § 1, Title 50 U.S.C. § 624(d)*); sworn testimony taken in another proceeding may be introduced (Art. 50, Title 50 U.S.C. § 625**).

But what we think more significant about the procedure of a court-martial as it bears upon this problem is the fact, conceded by the Government, that a court-martial is an ad hoc body. Certainly in times of emergency an accused tried in Germany in one week may find two weeks later that of the five members of his general court-martial one may then be in Korea, another in Lebanon, a third in Formosa, a fourth in Japan and a fifth in the United States. In such a case, before the expiration of the thirty days provided in subsection (b) (2) the recommendation there referred to would have become a practical impossibility.

The briefs of the Government recognize this difficulty and suggest that the convening officer and the board of review, as reviewing authorities (Art. of War 59 to 66, Title 50 U.S.C. §§ 646 to 653) are a part of the court-martial which have themselves sentencing power, and that the accused would therefore have a continuing opportunity to seek recommendation against his deportation within 30 days after the reviewing processes have been completed. As authority for this theory the Government cites...

To continue reading

Request your trial
13 cases
  • Costello v. Immigration and Naturalization Service
    • United States
    • U.S. Supreme Court
    • February 17, 1964
    ...the court sentencing the alien makes the recommendation mentioned, then the provisions of subsection (a)(4) do not apply.' Gubbels v. Hoy, 9 Cir., 261 F.2d 952, 954. Yet if § 241(a)(4) were construed to apply to those convicted when they were naturalized citizens, the protective provisions ......
  • Sharaiha v. Hoy
    • United States
    • U.S. District Court — Southern District of California
    • January 14, 1959
    ...or exile', Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433, and should be strictly construed." See also Gubbels v. Hoy, 9 Cir., 1958, 261 F.2d 952. This court is of the opinion that the Special Inquiry Officer erred in concluding plaintiff was precluded from establishing ......
  • Costello v. Immigration and Naturalization Service
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 4, 1962
    ...supra, p. 694. 7 Mangaoang v. Boyd, 9 Cir., 1953, 205 F.2d 553, cert. denied, 346 U.S. 876, 74 S.Ct. 129, 98 L.Ed. 384; Gubbels v. Hoy, 9 Cir., 1958, 261 F.2d 952; Resurreccion-Talavera v. Barber, 9 Cir., 1956, 231 F.2d 8 Jeronimo v. Murff, S.D.N.Y., 1957, 157 F.Supp. 808, 813; Zito v. Mout......
  • United States v. Lee
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 24, 1970
    ...the judgment of sentence in excess of one year, are entitled to the conclusiveness of a judgment of an Article III court. Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958), relied on by Lee, does not dictate a result different from the one we have reached. That case is inapposite because its hol......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT