Hempel v. Weedin

• Decision Date: 23 January 1928
• Docket Number: No. 12043.,12043.
• Citation: 23 F.2d 949
• Parties: HEMPEL v. WEEDIN, Com'r of Immigration.
• Court: U.S. District Court — Western District of Washington

23 F.2d 949 (1928)

HEMPEL v. WEEDIN, Com'r of Immigration.

No. 12043.

District Court, W. D. Washington, N. D.

January 23, 1928.

Patterson & Ross, of Seattle, Wash., for petitioner.

Thos. P. Revelle, U. S. Atty., and Anthony Savage, Asst. U. S. Atty., both of Seattle, Wash., for respondent.

CUSHMAN, District Judge.

In April, 1927, petitioner was, upon a warrant of the Assistant Secretary of Labor, arrested, the charge being that he was found in the United States in violation of the Immigration Act of February 5, 1917 (8 USCA). In May, after a hearing conducted by an immigrant inspector in which the only testimony taken was that of the petitioner, his deportation was recommended. In June a board of review made the following recommendation:

"* * * This alien, male, aged 37, married, native and citizen of Germany, of the German race, arrived at New York November 16, 1923, ex S. S. President Roosevelt, and was admitted on primary inspection. He has been released on bond. Alien was granted a hearing at Seattle, Washington, May 4, 1927, by Immigrant Inspector Joseph H. Gee.

"This case came to the attention of the Immigration Service through information by a representative of the staff of the German Consul General at Seattle, who reports that alien had been convicted of embezzlement in Germany. Alien admits that he was convicted for misappropriating money, but he claims that he restored all the money he took and was pardoned after serving eighteen months. He also claims that he told the American consul in Berlin of his conviction and pardon prior to the issuance of his visé. Even though the alien's statement that he has been pardoned be true, yet, under the decision of the court in the case of United States ex rel. Palermo v. Smith, 17 F.(2d) 534, the alien is subject to deportation. In the case cited, the Circuit Court of Appeals held that that part of section 19 of the Immigration Act of 1917 exempting from deportation those aliens who had been convicted of crimes involving moral turpitude and were later pardoned only applied to aliens who had been convicted in this country and pardoned. In view of this fact, and the admission of the alien that he has been convicted abroad, deportation appears mandatory.

"Considered and recommended that alien be deported to Germany at the expense of the steamship company, on the grounds: That he is in the U. S. in violation of the Act of February 5, 1917, in that he has been convicted of or admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit, theft; and that he was a person likely to become a public charge."

Upon the foregoing report petitioner's deportation was ordered by the assistant to the Secretary. A rehearing was asked by the petitioner to introduce documentary evidence of his pardon of the offense committed by him in Germany, which rehearing was denied, and the petitioner is held for deportation. Upon the return of the order to show cause why a writ of habeas corpus should not issue discharging petitioner, a certificate showing full pardon of such offense was introduced. The fact of such pardon has not been questioned. The sole question for decision, is as to the effect of the pardon. This is shown by the recommendation of the board of review. Comp. St. § 4289¼jj (8 USCA § 155), provides for the deportation of:

"* * * Except as hereinafter provided, any alien who is hereafter 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, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry; * * * any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude. * * *"

The second proviso of section 19 of the Immigration Act of February 5, 1917, 39 Stat. at Large, c. 29, pp. 874, 889, 890 (Comp. Stat. Supp. 1919, § 4289¼jj), provides:

"* * * Provided further, that the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the state, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this act."

Respondent's contention is:

"* * * The entire context of the second proviso shows plainly that it relates solely to aliens convicted of crimes committed after entry into the United States, and has no application to the tenth clause of the section. In this connection attention is invited to the opinion of the Circuit Court of Appeals for the Second Circuit, in the case of United States ex rel. Palermo v. Smith, decided February 7, 1927, 17 F.(2d) 534."

Petitioner cites Mast v. Stover, etc., 177 U. S. 485, 20 S. Ct. 708, 44 L. Ed. 856, 858; 20 R. C. L. 558; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Young v. United States, 97 U. S. 39, 24 L. Ed. 992; Ill. Central R. Co. v. Bosworth, 133 U. S. 92, 10 S. Ct. 231, 33 L. Ed. 550; Jones v. Alcorn County, 56 Miss. 766, 31 Am. Rep. 385; Rison v. Farr, 24 Ark. 161, 87 Am. Dec. 52; Hilton v. Guyot, 159 U. S. 113, 16 S. Ct. 139, 40 L. Ed. 95, 108; 29 Cyc. 1565. Respondent cites Ex parte Riley (D. C.) 17 F.(2d) 646; United States ex rel. Palermo v. Smith (C. C. A.) 17 F.(2d) 534.

Full disclosure of petitioner's conviction in Germany, and pardon, it appears, was made by him to the United States consul in Berlin. While the board of review states, "He (petitioner) also claims that he told the American consul in Berlin of his conviction and pardon, prior to the issuance of his visé," the fact that he did so does not appear to be seriously questioned. The testimony given after his arrest concerning this matter is detailed, specific, and withal convincing. In this testimony he states that he furnished the American consul in Berlin a police certificate relating to his conviction. While he does not so state, it is to be concluded that the record of his pardon was covered by the certificate; otherwise it does not appear reasonable that he would have obtained the visé. The pardon shows that petitioner was sentenced by the Circuit Court of Frankfurt A/Oder. It is also to be noted that on June 17, thirteen days before the date of the board's recommendation, that Commissioner Weedin wrote the Commissioner General of Immigration:

"If any official document having reference to the matter was filed with the American consul, it is probably attached to the immigration visé, which should be in the files of the Naturalization Bureau at Washington, and to which reference may be had if the point is considered material."

There has been no showing that such papers as those mentioned were not attached to the "immigration" visé.

As stated by the board, the decision in Palermo v. Smith, holds that that part of section 19 of the act in question only applies to aliens convicted in the United States. The court, at page 535 of the report, says:

"* * * The question with us is merely one of construction of the statute, and we construe it to mean that a pardon is of assistance to the alien only when the crime of which he is pardoned was committed within the five-year period after entry into the country."

The question of the effect of such a pardon, in the absence of such statute, is not therein considered by the court. In Ex parte Garland, 71 U. S. (4 Wall.) 380, 18 L. Ed. 366, it is said:

"This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

In this case it was also said:

"* * * The Constitution provides that the President `shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.' The power thus conferred is unlimited, with the exception stated. It extends to every offense known to the law, and may be exercised at any time after its commission either before legal proceedings are taken or during their pendency or after conviction and judgment. * * *

"Such being the case the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

"There is only this limitation to its operation: It does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment. * * *

"The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offense of treason, committed by his participation in the Rebellion. So far as that offense is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him, by reason of that offense, from continuing in the enjoyment of a previously acquired...