Hughes v. Tropello
| Decision Date | 25 February 1924 |
| Docket Number | 3018. |
| Parties | HUGHES, Commissioner of Immigration, et al. v. TROPELLO. |
| Court | U.S. Court of Appeals — Third Circuit |
George W. Coles, U.S. Atty., and Robert V. Bolger, Sp. Asst. U.S Atty., both of Philadelphia, Pa., for appellants.
Adrian Bonnelly, of Philadelphia, Pa., for appellee.
Before WOOLLEY and DAVIS, Circuit Judges, and THOMSON, District Judge.
Antonio Tropello, an alien, arrived at the port of New York on November 12, 1915, and, after examination, an order of exclusion was executed for the deportation of the alien, on the ground that he was feeble-minded and likely to become a public charge. He was, however, a little later permitted by the Secretary of Labor to enter the United States, upon giving a certain bond, the exact conditions of which do not appear of record. He and his mother resided in Philadelphia when, on April 19, 1919, a warrant of arrest was issued, and the alien was taken into custody on the ground that he was in the United States in violation of the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4a et seq.), that he was feeble-minded at the time of his entry and that he was likely to become a public charge. After various hearings, the proceedings resulted in an order of deportation dated April 5, 1921.
A writ of habeas corpus was issued, and after hearing before Judge Dickinson the relator was discharged; the discharge being based on the fact that the deportation was not effected within the five-year limitation prescribed by the act of 1917. The learned judge based his opinion on the decision of Judge Learned Hand, of the Southern District of New York, in the case of United States ex rel. David v. Tod, which case is not reported; Judge Hand holding that the five-year limitation was absolute, requiring the deportation within the statutory period. On appeal, the Circuit Court of Appeals (289 F. 60) reversed the decision of Judge Hand, holding that under the act of 1917 the statute was complied with if proceedings be commenced within the period of five years.
This raises the important question as to the proper construction of the words of limitation contained in section 19 of the Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4jj). It would seem reasonably clear that the act of 1917 applies to the case of this alien, because, although the entry was in 1915, the warrant of arrest was issued in 1919, which is subsequent to the passage of the act in question, and under the authorities the provisions of this act are retroactive, affecting all persons within the United States regardless of the time of entry. Lauria v. United States (C.C.A.) 271 F. 261; United States ex rel. David v. Tod (C.C.A.) 289 F. 60. In determining the effect to be given to the words of limitation, it may be helpful to consider in a general way certain other sections of the act of 1917. Section 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4b) enumerates the various classes of persons who shall be excluded from the United States. By this, of course, is meant that they cannot lawfully enter into the country. Sections 15, 16, and 17 (sections 4289 1/4hh-- 4289 1/4ii) designate the boards or authorities who have power to determine the question of the right of entry. Under section 17, the action of the board of special inquiry, excluding an alien, shall be deemed final, unless reversed on appeal to the Secretary of Labor. This provision is qualified by the proviso that such decision shall be based upon the certificate of the examining medical officer, and shall be final as to the rejection of aliens affected with any dangerous contagious disease, or with any mental or physical disability which would bring them within any of the excluded classes under section 3, except as provided in section 21 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4kk).
It would seem clear that where the right of exclusion exists, but the right is waived by the department for any reason, and the alien is allowed to enter the country, whatever the conditions imposed, the case at once is taken out of the procedure for exclusion, and is governed by the procedure relating to the expulsion and deportation of an alien found in the United States contrary to law. To this last-named class, the statute of limitation applies. Section 19 designates, both generally and particularly, the aliens in the United States who are subject to be taken into custody and deported, not only those who have entered, or are found in the country, in violation of that act, but in violation of any other law of the United States. This section does not undertake to prescribe the method of procedure, what hearing shall be had, if any, or before whom. The section is concerned only in designating the aliens who may be deported, and in fixing a time limit within which such deportation must be made. The effective words are:
'That at any time within five years after entry, any alien (specifying the various classes unlawfully entering or found in the United States) shall, upon a warrant of the Secretary of Labor, be taken into custody and deported.'
It must be clear that, inasmuch as this section embraces every possible case where deportation can be had, the five-year limit therein fixed must prevail, unless such limitation is removed by an exception specified therein; and we find such exception embracing a large number of cases in section 19.
To better understand the meaning and effect of certain words in section 20 (section 4289 1/4k), which have caused some conflict of opinion as to the five-year limitation, it becomes necessary to keep in mind that section 19 is dealing with two classes of aliens, whose status before the law is entirely different, but who together constitute all the deportable cases. The first class embraces those who had no right to enter the country, who were not admissible under the law, who ought to have been excluded but who have entered the country, or are found therein, in violation of the law. The status of all this class is fixed, unalterably, as of the date of arrival at port. The second class embraces those whose admission into the United States was lawful, against whose status, at that time, physically, mentally, or morally the law could raise no objection, but whose subsequent conduct was such as to forfeit their right, under the law, to remain. The status of this class is fixed, not as of the date of arrival, but as of the date when the offense was committed, or the...
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...revocation of a naturalization obtained on the strength of the suspension. Id. § 1256. 7 Cf. our two earlier decisions in Hughes v. Tropello, 3 Cir., 1924, 296 F. 306 and McCandless v. United States, 3 Cir., 1929, 33 F.2d 882. 8 See Webster, New International Dictionary 2220 (2d ed. 1939): ......
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