Matter of S----
| Decision Date | 15 May 1962 |
| Docket Number | A-10494958. |
| Citation | 9 I&N Dec. 688 |
| Parties | MATTER OF S----. In EXCLUSION Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
DISCUSSION: Appellant is 61 years old, a native of Russia, who was first admitted to the United States for permanent residence in July 1912, accompanied by other members of his family. He was naturalized in 1930, but his citizenship was revoked in July 1958. See Stacher v. United States, 258 F.2d 112 (C.A. 9, 1958), cert. den. 358 U.S. 907. The Court of Appeals sustained the finding of the District Court that despite the passage of 28 years, the Government had established "by clear, unequivocal and convincing evidence that the defendant under oath had stated he had no previous arrests," while in fact appellant had "a prior criminal record." The court had before it other matters of proof and jurisdiction not pertinent here. The court recited appellant's nine arrests between 1924 and 1928, prior to his naturalization, most of them for "assault and battery" or for "atrocious assault and battery." He was convicted on only one of these charges; his arrest for "atrocious assault and battery" was reduced to assault and battery, for which he paid a fine of $50 at Newark, New Jersey, on December 14, 1927.
Appellant departed from the United States on or about April 10, 1960, and returned on July 19, 1960. He departed again on January 20, 1961, and applied for readmission on March 20, 1961. In connection with his last entry the present exclusion proceeding was instituted. At the time of his return in March 1961 he presented an affidavit in lieu of passport (Exh. 4) and an alien registration receipt card (Form I-151). The special inquiry officer found appellant inadmissible on the first two charges set forth above, under section 212(a)(9) and section 212(a)(20) of the Immigration and Nationality Act. Appellant appeals from the order of exclusion.
The special inquiry officer found that atrocious assault and battery is a crime involving moral turpitude, but conviction for assault and battery is not conviction of a crime involving moral turpitude. The special inquiry officer concluded that appellant did not abandon his residence in the United States by making two trips to Italy, one of 3 months' duration and one of 2 months, to see his estranged wife and their 2 children. The special inquiry officer further concluded that the Immigration and Naturalization Service has not established that appellant is inadmissible as a person whose entry is prejudicial to the public interest. The special inquiry officer found that appellant's conviction for failure to timely file State income tax returns in California in 1955 is not a crime involving moral turpitude.1 It is not necessary, therefore, for us to consider further the charge laid under section 212(a)(27).
The special inquiry officer stated that "no probative value" was being given to the testimony of appellant before Congressional committees investigating organized crime in interstate commerce in New York and New Jersey. This testimony and the magazine articles and newspaper clippings referring to appellant's business associates and gambling activities were introduced in support of the "entry prejudicial to the public interest" charge. These exhibits, 11, 12, 13, 18, 19, and 21, are not now admissible for any purpose, except to establish reputation, and have not been given any consideration by us.
Counsel has alleged in briefs and in oral argument that there was a "sly scheme" to entrap the alien. A watch notice was posted for him before he returned from his first trip to Italy, but he returned without being apprehended. He was interviewed by the Immigration Service once between his first and second trips. Following his second trip to Italy a year later, he was apprehended by an inspector who found his name in a "Lookout Book" when he entered via plane at California. Counsel contends that appellant should have been warned by the Immigration Service following his denaturalization that if he went abroad he might not be readmitted, that the Immigration Service has pursued a policy of warning aliens but deliberately refrained from warning appellant. Entrapment is a criminal law concept,2 and has no appropriate place in this case. Counsel claims that the Immigration Service failure to apprehend him at New York on his first return was "lulling" him into a sense of security (counsel's pre-decision memo, p. 3), and refers to appellant as an "unwary victim." Appellant has had continuous competent legal assistance for years, defending him in criminal prosecutions, representing him when he has testified before various investigatory bodies, and in immigration matters. Counsel declares that, while the usual practice of the Immigration Service is to notify an alien that he might be excludable or could be excluded upon reentry, in this case the Service delivered to appellant his alien registration card in 1959 without any such warning. The examining officer has stated that at the time the "watch notice" was posted the Service was not aware of appellant's conviction at Saratoga, New York in 1952. An investigator for the Immigration and Naturalization Service at Los Angeles testified that appellant's record was given him in January 1959 for the purpose of registering appellant under the Alien Registration Act. The witness testified that he concluded on the basis of the record then before him that Mr. S---- did not fall within the excludable classes. The fact that the Government posted a lookout notice for Mr. S---- before his first return from Italy in June 1960 (p. 8, oral argument) at various ports, including the Northeast Region, but failed to apprehend him until the occasion of his second return, does not constitute "entrapment" by the Immigration Service, either on the law or the facts.
Concerning counsel's contention that the Service conduct was improper with regard to appellant's departures and reentries, see Klapholz v. Esperdy, 201 F.Supp. 294 (S.D., N.Y., 1961), referring to the standard procedure of "Lookout Book," detention by an immigrant inspector, and parole into the United States pending determination of admissibility.3
Counsel states that appellant lives from the proceeds of a $1,000,000 note resulting from the sale of some of his properties in Nevada and that he has not been engaged in gambling activities in the past ten years. Stacher v. United States, 258 F.2d 112, 116, fn. 11, states that in July 1950 defendant purchased "an interest" costing roughly $91,000 in two corporations, the Bank Club of Nevada, Inc., and the Golden Security Company. According to his tax attorney he sold his interest in the Golden Hotel and the Bank Club of Reno in May 1952 and received $86,000 cash, a one-third interest in the Earl Carroll Theater Building in Hollywood, valued at $97,000, and "Installment Notes" of $1,166,000.
Following his indictment by the Extraordinary Grand Jury on September 8, 1952, sitting in Saratoga County, New York, for the crimes of conspiracy, gambling, owning and operating a gambling establishment, and forgery in the third degree, appellant went to Nevada. A State court in Nevada refused to extradite appellant to New York. The extradition proceedings went to the Supreme Court as State of Nevada v. Stacher, 346 U.S. 906 (1953), and in a per curiam memorandum decision the Supreme Court reversed the Court for the 7th Judicial District of Nevada, citing Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), and Pierce v. Creecy, 210 U.S. 387 (1908). Biddinger states the rule (p. 134) that a fugitive from justice:
. . . if found in another State must be delivered up by the Governor of such State to the State whose laws are alleged to have been violated, on the production of such indictment or affidavit, certified as authentic by the Governor of the State from which the accused departed. Such is the command of the Supreme law of the land, which may not be disregarded by any State.
. . . that when the extradition papers required by the statute are in the proper form the only evidence sanctioned by this court as admissible on such a hearing is such as tends to prove that the accused was not in the demanding State at the time the crime is alleged to have been committed.
Pierce v. Creecy, supra, is to the same effect saying:
. . . This indictment meets and surpasses that standard, and is enough. If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States, and fruitful of miscarriages of justice. (p. 405)
The Supreme Court decided that the indictment was in the form and certified as required by the law, and that the appellant did...
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