Gubbels v. Hoy, No. 15740.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: ORR, POPE and HAMLEY, Circuit
• Citation: 261 F.2d 952
• Parties: Jacques Arthur GUBBELS, Appellant, v. Richard C. HOY, as District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
• Docket Number: No. 15740.
• Decision Date: 14 November 1958

261 F.2d 952 (1958)

Jacques Arthur GUBBELS, Appellant,
v.
Richard C. HOY, as District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.

No. 15740.

United States Court of Appeals Ninth Circuit.

November 14, 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

261 F.2d 953

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

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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...