Nason v. Immigration and Naturalization Service, No. 180

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: LUMBARD, , and MEDINA and KAUFMAN, Circuit
• Citation: 370 F.2d 865
• Parties: Edward NASON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Docket Number: Docket 30623.,No. 180
• Decision Date: 10 January 1967

370 F.2d 865 (1967)

Edward NASON, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 180, Docket 30623.

United States Court of Appeals Second Circuit.

Argued November 16, 1966.

Decided January 10, 1967.

370 F.2d 866

Rita E. Hauser, New York City, for petitioner.

Francis J. Lyons, Sp. Asst. U. S. Atty., New York City (James G. Greilsheimer, Sp. Asst. U. S. Atty., and Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, on the brief), for respondent.

Before LUMBARD, Chief Judge, and MEDINA and KAUFMAN, Circuit Judges.

MEDINA, Circuit Judge:

Petitioner Edward Nason seeks review of a finding by the Immigration and Naturalization Service that he is deportable under 8 U.S.C. Section 1251(a) (4) for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct.

The petitioner is a native and citizen of Canada, who was last admitted

370 F.2d 867

to the United States for permanent residence on April 29, 1961. On April 9, 1965, he pleaded guilty to three counts of an information in the United States District Court for the Southern District of New York for unlawfully, wilfully and knowingly devising a scheme to defraud by use of the mails during the period from November 1, 1962 through December 31, 1962, in violation of 18 U.S.C. Section 1341. On the same day he also pleaded guilty to three additional counts of the same information, for devising a similar scheme, in violation of the same section, during the period from October 2, 1963 through October 24, 1963. The frauds charged in the three counts covering the period from November 1, 1962 through December 31, 1962 were effected by renting a Post Office Box using the fictitious name "Charles C. Cole" and ordering various items of merchandise that were delivered to the Post Office Box and "paid" for by worthless checks signed "Charles C. Cole." A similar scheme was charged in the three other counts covering the period from October 2, 1963 through October 24, 1963, by the use of the fictitious name "Peter Hughes." Upon his plea of guilty on these six counts petitioner was given a suspended sentence and placed on probation for two years. Each of these crimes involves fraud and hence moral turpitude within the meaning of 8 U.S.C. Section 1251(a) (4)

On June 15, 1965, more than two months after his conviction, petitioner appeared at the Immigration and Naturalization Service office voluntarily and was questioned by an investigator of the Service. Prior to the commencement of the questioning the investigator advised the petitioner:

"I desire to take a statement from you concerning a matter of interest to this Service. You are advised that such a statement should be entirely voluntary and that whatever you say may be used against you or any other person in any Service proceedings."

The investigator then asked petitioner, "Do you understand and are you willing to make that statement at this time?", and petitioner responded, "Yes, sir."

When he appeared before the investigator, petitioner was not accompanied by a lawyer, he did not request an opportunity to consult a lawyer, nor was he advised that a lawyer could be present. He was under no restraint of any kind and was free to terminate the interrogation at any time and leave.

On July 9, 1965 deportation proceedings were instituted and on August 6, 1965 a hearing was had before a special inquiry officer, as provided in 8 U.S.C. Section 1252(b). He was then represented by counsel. Petitioner was adjudged deportable and, on June 2, 1966, the Board of Immigration Appeals dismissed his appeal.

On this challenge to the validity of the deportation order petitioner claims: (1) that he was entitled to have a lawyer present at the interrogation by the investigator that he should have been advised of his right to have a lawyer present and that it was error to receive in evidence at the hearing before the special inquiry officer a copy of the transcript of his answers to the questions put to him by the investigator because of the failure to advise him of his right to have a lawyer present; and (2) that the Board of Immigration Appeals had adopted an improper and prejudicial method of appraising the evidence on the record as a whole.

We think petitioner was not entitled to have a lawyer present at the preliminary interrogation and that it was not error to fail to advise him that he had a right to counsel or to receive in evidence at the hearing his sworn statement made at the preliminary interrogation. However, we agree with petitioner's contention that the method of appraising the evidence by the Board of Immigration Appeals failed to measure up to the standards required in deportation proceedings and for that reason remand the case.

370 F.2d 868

I

Although the consequences of deportation are in many instances of very serious moment to the deportee, a deportation proceeding has uniformly been held to be civil and not criminal in character. Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978 (1913); U. S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed. 2d 362, decided December...