Del Guercio v. Gabot, 11433.
| Decision Date | 13 May 1947 |
| Docket Number | No. 11433.,11433. |
| Citation | 161 F.2d 559 |
| Parties | DEL GUERCIO, District Director Immigration and Naturalization Service, v. GABOT. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James M. Carter, U. S. Atty., Ronald Walker and Robert Wright, Asst. U. S. Atty., all of Los Angeles, Cal. (Bruce G. Barber, Chief, Adjudication Division, Immigration and Nat. Service, of Los Angeles, Cal., of counsel), for appellant.
L. A. Gordon and Harry Wolpin, both of Los Angeles, Cal., for appellee.
Before STEPHENS, HEALY, and BONE, Circuit Judges.
The petitioner, Sebastian Gabot, was about to be deported, when he sought release from the District Director of Immigration by petition for the writ of habeas corpus. The court granted the writ, and ordered the release as prayed. The Director appeals.
Gabot, a native of the Philippine Islands, legally entered the Territory of Hawaii, at Honolulu, September 9, 1927, and remained there until he left for Continental United States, arriving in San Francisco, California, July 11, 1929. He remained continuously in Continental United States until March 20, 1934, on which date he crossed the United States-Mexico border, got married, and four hours later re-crossed the border into the United States. He never became a citizen of the United States.
Section 155(a) of Title 8, U.S.C.A., provides: "* * * except as hereinafter provided, any alien * * *, after May 1, 1917, who is sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States * * *" shall be deported.1
On January 28, 1935, petitioner was found guilty of second degree murder for the killing of a man on October 11, 1934, a crime of moral turpitude. The crime was committed since May 1, 1917, and, therefore, falls within the time scope of the section just quoted. On November 8, 1935, the government, considering Gabot "as if he were an alien," according to its understanding of the phrase, and after appropriate proceedings, directed petitioner's deportation to the Philippine Islands. The significance of the quoted phrase will presently be shown.
The offense of which petitioner was convicted was committed more than five years after his first entry into the United States but within five years after his four-hour so-journ into Mexico on March 20, 1934.
Unless the Mexican excursion is in law his last entry into the United States, Gabot cannot be deported upon the basis of having committed the crime of which he was convicted, which was committed more than five years since his entry into this country. If, on the other hand, the coming back across the United States-Mexico line on March 20, 1934, constitutes "entry," then the crime would have been committed within five years of such entry, and petitioner's case would be within the deportation statute if the Director's understanding of the phrase "as if he were an alien" is the correct one.
Philippinos, residing in the United States during the period from the cession of the Philippine Islands to the United States and the establishment of Philippine independence, were of an uncertain status. They were not citizens of the United States, but because the United States exercised sovereignty over the Islands and their inhabitants, they are said to have been United States nationals and not aliens.2 The Independence Act (48 U.S.C.A. § 1231), although it became a law of the United States in March, 1934, was by its terms not to be effective until the Philippine people accepted it. Formal acceptance became effective May 14, 1935.
In the Independence Act it is provided that "(1) For the purposes of Chapter 6 of Title 8 except § 213c (not pertinent here), this section, 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 * * *." 48 U.S.C.A. § 1238. (Our emphasis.) It will be noticed that the statute did not classify the Philippino as an alien; it provided that he should be considered as an alien for the limited purposes of the statute. By unmistakable inference the Congress was acting upon the premise that the Philippino residing in the United States before Philippine independence was not an alien, and under the legislation in process he would, insofar as such legislation was effective, not be declared to be an alien.
It would seem that, in the absence of any other statute or treaty, the Philippino non-United States-citizen-resident would occupy the status of an alien only upon his native land becoming an independent nation. We do not, however, reach that point. It is sufficient to say that the situation was not too clear, and that it was thought desirable to enact the statute referred to in order to clarify the "immigration" situation.
The attempted clarification, however, left much to be desired as the contentions in this case indicate. The Director's construction of the statute containing the phrase "shall be considered as if they were aliens" is that from its effective date whenever any Philippino not a citizen of the United States stands before the immigration officials under a charge that he should be deported, his case must be considered as though he had been an alien during his entire stay in the United States. The trial judge thought differently. He reasoned that any change in the Philippino's status was effective from the effective date of the statute, and that it was not intended to be effective retroactively, and that when Gabot came across the line in March, 1934, he was not an alien, and, therefore, the "turpitude" statute was not applicable.
We agree with the trial judge. The law does not favor the retroactive application of statutes. Ex post facto application of criminal law is prohibited by the United States Constitution.3 Of course, the issue here is not concerned with the subject of ex post facto law, yet it approaches it in principle, for if the Director is right, the appellee is to be forceably deported only by the retrospective application of a law which has constituted a perfectly legal act, when done, a necessary element for the...
To continue reading
Request your trial
-
United States v. Perry
...615, 11 L.Ed.2d 576 (1964); Bruner v. United States, 343 U.S. 112, 117 n. 8, 72 S.Ct. 581, 96 L.Ed. 786 (1952); Del Guerchio v. Gabot, 161 F.2d 559, 561 (9th Cir. 1947). Retroactivity will, however, be found if Congress has clearly and unambiguously indicated its intent to make the statute ......
-
United States v. Haughton
...(1944), rehearing denied 323 U.S. 809, 65 S.Ct. 27, 89 L. Ed. 645; Hiatt v. Hilliard, 180 F.2d 453 (5th Cir., 1950); Del Guercio v. Gabot, 161 F.2d 559 (9th Cir., 1947); Lewis Food Company v. Los Angeles Meat and Provision Drivers, 159 F.Supp. 763 But this broad rule is inapplicable to reme......
-
Barber v. Gonzales
...States ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; DiPasquale v. Karnuth, 2 Cir., 158 F.2d 878; Del Guercio v. Gabot, 9 Cir., 161 F.2d 559. Cf. United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1598.2 In United States ex rel. Clausse......
-
Gonzales v. Barber
...very different questions involved in those cases. In the Mangaoang case, though not in the instant case, the majority cited Del Guercio v. Gabot, 9 Cir., 161 F.2d 559. As will be pointed out shortly, this court did not in that case make any attempt to define the word "entry." The majority's......