Tseung Chu v. Cornell
Decision Date | 12 September 1957 |
Docket Number | No. 15344.,15344. |
Citation | 247 F.2d 929 |
Parties | TSEUNG CHU, also known as Bow-Quong Chew, also known as Tseung Bowquong Chew, also known as Thomas Bowquong Chew, Appellant, v. Gordon L. CORNELL, Acting Officer in Charge of United States Department of Justice, Immigration and Naturalization Service at Los Angeles, California, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Francis C. Whelan, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., James R. Dooley, Burton C. Jacobson and Richard A. Lavine, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before CHAMBERS and BARNES, Circuit Judges, and WALSH, District Judge.
By this action, plaintiff, an alien, sought a judicial declaration in the District Court that an order of deportation issued by the United States Department of Justice, Immigration and Naturalization Service, was invalid. Plaintiff prayed for declaratory relief, and for an injunction restraining the execution of said order of deportation, alleging that appellant had exhausted his administrative remedies. The District Court1 denied relief to appellant. This is an appeal therefrom.
Section 212(a) of the Immigration and Naturalization Act of 1952, 66 Stat. 182, Title 8 U.S.C.A. § 1182(a) provides in pertinent part:
The order of deportation issued against the defendant rested on two grounds:
(1) that prior to his last entry into the United States he had been convicted of a crime involving moral turpitude, to wit, the crime of wilfully attempting to defeat or evade the income tax; (Internal Revenue Code of 1939, Title 26, U.S.C.A. § 145(b));
(2) that he had procured a visa for such last entry by fraud or by wilfully misrepresenting a material fact.2
The District Court found that the warrant of arrest was issued, charging appellant with being subject to deportation, on April 20, 1954, on the two grounds hereinabove stated. The District Court further found that deportation proceedings were held; that an administrative appeal from the decision of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals; that the Immigration officials who acted had jurisdiction and authority to act; that there was reasonable, substantial, and probative evidence to support the decision of deportability, the order of deportation, and the warrant of deportation; that the deportation proceedings relating to appellant were fair, in accordance with law, and in accordance with appellant's constitutional rights; further, that the violation of Title 26 U.S.C.A. § 145(b) constitutes a crime involving moral turpitude within the meaning of Section 212(a)(9) of the Immigration and Naturalization Act; and, that appellant's failure to disclose his said conviction on his application for an immigration visa was a material fact which appellant was under a duty to disclose.
The Facts.
Appellant first entered the United States at San Francisco, California, on November 9, 1907, as the son of a merchant. He departed June 15, 1912, and was readmitted October 22, 1913, as a treaty merchant. He left this country in 1947, and after six years residence in China, last entered the United States at Honolulu, T.H., on August 11, 1953, as a returning resident alien.
Prior to his last entry, and on March 27, 1944, appellant had been convicted on his plea of nolo contendere to violating Title 26 U.S.C.A. § 145(b), wilfully seeking to evade and avoid the payment of income tax.
In his application for a visa Defendant's Exhibit A, appellant failed to disclose the fact of such conviction.
Question No. 32 on the application for visa reads as follows:
"I have never been arrested; convicted; in prison; in an almshouse; treated in an institution, hospital, or other place, for insanity or other mental disease; the beneficiary of a pardon or amnesty, except as hereinafter stated.",
to which the appellant gave the sworn answer: "None."
Appellant's conviction was based upon a four count indictment, filed February 16, 1944, summarized as follows:
Count II charged that in 1938, in the same manner, and with the same intent and purpose, appellant had made a return of $3,778.21, but had actually received $15,795.77 net income.
Count III charged a 1939 return of $4,766.50, made with the same intent and purpose, and an actual net income of $37,760.65.
Count IV charged a 1940 return of $2,490.35, made with the same intent and purpose, and an actual net income of $14,998.78.
and was fined $1,000 on each of the four counts.
On June 24, 1954, an order was entered by the United States District Court, "correcting a clerical error in judgment," on motion of counsel for appellant.3 The deportation hearing was reopened by the Special Inquiry Officer, pursuant to motion of the alien's counsel, so that this corrected judgment could be introduced in evidence by the alien.
The Special Inquiry Officer observed that:
"* * * both judgments referring to the offenses charged in the indictment, and showing that the respondent (appellant) had been convicted on his plea of nolo contendere of those offenses."
The Law.
Appellant states, which, stated briefly, are these:
1. A violation of Title 26 U.S.C.A. § 145(b), Internal Revenue Code of 1939, is not a crime involving moral turpitude.
2. A violation of the same section was not a material fact which appellant was under a duty to disclose on his application for visa.
3. A "conviction" upon a plea of nolo contendere is not such a conviction as need be admitted in a civil proceeding, and therefore need not be disclosed in an application for an immigration visa.
4. The phrase "crime involving moral turpitude" as used in the Immigration and Naturalization Act does not have a sufficiently definite meaning, "to afford a constitutional standard for deportation."
We shall consider these four points in turn.
In the leading case of Jordan v. De George, 1951, 341 U.S. 223, 71 S. Ct. 703, 704, 95 L.Ed. 886, there was but one question presented:
Defendant pleaded guilty, was sentenced, served his time and was again indicted.
De George sought release by habeas corpus, claiming the crime of which he had been convicted did not involve moral turpitude. The Supreme Court, determining this one issue before it said:
In Chanan Din Khan v. Barber, D.C. N.D.Cal., 1957, 147 F.Supp. 771, 775, the same matter was in issue. There the District Court found that a violation of § 145(b) is a crime involving moral turpitude.
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