United States v. Garfinkel, 136.
| Decision Date | 22 January 1947 |
| Docket Number | No. 136.,136. |
| Citation | 69 F. Supp. 846 |
| Parties | UNITED STATES ex rel. FORINO v. GARFINKEL, Officer in Charge, Immigration and Naturalization Service. |
| Court | U.S. District Court — Western District of Pennsylvania |
Edward C. Boyle, Asst. U. S. Atty., of Pittsburgh, Pa., and Maurice A. Roberts, of Philadelphia, Pa., for respondent.
This action is before the Court on the petition of Lenzi Forino for a writ of habeas corpus, wherein he alleges that he is being unlawfully deprived of his liberty by the District Director of Immigration and Naturalization and the United States Attorney for this District.
The Relator is a native and a citizen of Italy now thirty-nine years of age. He was admitted to the United States for permanent ent residence September 17, 1928, at New York and has resided in this country continuously since that time. On December 5, 1932, and within 5 years after his entry, he pleaded guilty in the Court of Oyer and Terminer, Allegheny County, Pennsylvania, to an indictment charging him with murder. The Court fixed the decree of guilt as murder in the second degree and sentenced him to imprisonment for a term of not less than eight or more than sixteen years.
On January 11, 1933, a warrant for relator's arrest was issued under the immigration laws by the Assistant to the Secretary of Labor, charging him with being in the United States in violation of the Immigration Act of February 5, 1917, by reason of his conviction and sentence aforementioned. The applicable provisions of Section 19 of the Immigration Act of February 5, 1917, 8 U.S.C.A. § 155, reads as follows:
"That * * * 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 * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: * * * 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. * * *"
The relator was accorded a hearing under the immigration warrant and after reviewing the record, the Secretary of Labor entered an order directing relator's deportation to Italy. The warrant of deportation, entered April 18, 1933, provided that execution thereof be deferred until such time as the alien was released from imprisonment. The relator does not now allege that the hearing accorded him was not fair and does not in any way attack the validity of the proceedings which culminated in the issuance of the warrant of deportation.
After serving his minimum sentence of eight years, the relator was released from imprisonment on parole January 22, 1941. Because of the international situation, it was not then feasible to effect deportation to Italy and the relator was permitted to remain at large on his own recognizance under the outstanding warrant of deportation.
With the termination of hostilities, deportation became feasible, and the relator was notified by the Immigration authorities that his deportation would be effected on or about July 15, 1945. On July 13, 1945, the relator filed with the Board of Immigration Appeals a petition for rehearing, alleging that he was no longer deportable, by virtue of the decision in Perkins v. United States ex rel. Malesevic, 3 Cir., 99 F.2d 255. On July 17, 1945, he was taken into custody for deportation by the immigration authorities, and on the same day sued out a writ of habeas corpus in this Court. The writ was vacated August 9, 1945 (United States ex rel. Forino v. Bromberg, D.C., 61 F.Supp. 1021), and relator's appeal to the Circuit Court of Appeals was subsequently dismissed for want of prosecution.
On December 4, 1945, the Governor of Pennsylvania commuted the relator's maximum sentence from sixteen years to thirteen years and ten days, the sentence to expire December 15, 1945. On December 19, 1945, the relator filed with the Board of Immigration Appeals another petition for rehearing, alleging that the commutation of sentence placed relator within the terms of the decision in Perkins v. United States ex rel. Malesevic, supra. The petition for rehearing was denied by the Board of Immigration Appeals May 28, 1946, and on July 2, 1946, the relator was taken into custody for deportation, at which time he sued out the instant writ of habeas corpus.
Relator claims that he has received a legislative pardon by virtue of the Pennsylvania Act of March 31, 1860, P.L. 382, Section 181, 19 P.S. § 893, and therefore cannot be deported under the Federal Act of February 5, 1917, supra. Section 181 of the Act of 1860 provides that:
"Where any person hath been or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted. * * *"
Respondent contends that relator did not receive a legislative pardon by virtue of the aforesaid Act of March 31, 1860, for the reason that this Act was repealed by Section 1201 of the Pennsylvania Act of June 24, 1939, P.L. 872, 18 P.S. § 5201, which became effective September 1, 1939. This section in its terms specifically repeals the aforesaid provision of the Act of 1860. This act, however, provides in section 1102:
Relator claims that his case is not within the provisions of the Act of 1939, that the Act of 1939 expressly preserves civil rights and remedies existing at the time of its passage by virtue of the common or statute law. He also claims that the Act should not be construed to take away his civil rights, which would include his right to remain in this country. That such a construction would make the Act of 1939 retroactive, and in effect an ex post facto law.
The Board of Immigration Appeals, in October, 1942, in the case of In re Giovanni or John Rando, had before it a case in which the facts were substantially the same as in the present case. In the opinion, it is stated that it was the opinion of the Board that the repealing Act of 1939 did not take away from the alien the substantive right or grant which was attached to and became a part of the conviction, and that the Board did not think it was the legislative intention to take away such rights. Further, the Board stated:
The Board of Immigration Appeals seemingly maintained this position until the present case was before it, May 28, 1946, wherein it held that the relator was not entitled to a legislative pardon, stating in its opinion:
The Pennsylvania Act of May 28, 1937, P.L. 1019, which is an Act relating to Statutory Construction, provides that:
"No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature." 46 P.S. § 556.
In Commonwealth v. Quaranta, 295 Pa. 264, 273, 145 A. 89, 93, the Supreme Court of Pennsylvania, by Justice Kephart, stated:
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