United States v. Kershner

• Citation: 228 F.2d 142
• Decision Date: 17 December 1955
• Docket Number: No. 12361.,12361.
• Parties: UNITED STATES of America, ex rel. Bruno CARSON or Bruno Carasaniti, Appellant, v. J. S. KERSHNER, Officer in Charge, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

228 F.2d 142 (1955)

UNITED STATES of America, ex rel. Bruno CARSON or Bruno Carasaniti, Appellant, v. J. S. KERSHNER, Officer in Charge, Appellee.

No. 12361.

United States Court of Appeals Sixth Circuit.

December 17, 1955.

Henry C. Lavine, Cleveland, Ohio, for appellant.

Eben H. Cockley, Asst. U. S. Atty., Cleveland, Ohio, Sumner Canary, Cleveland, Ohio, on brief, for appellee.

Before MARTIN, MILLER and STEWART, Circuit Judges.

STEWART, Circuit Judge.

A warrant of arrest in deportation proceedings was issued against the relator, Bruno Carson, in June of 1953. After a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service he was ordered to be deported in the manner provided by law on the charges contained in the warrant of arrest. Following an unsuccessful appeal to the Board of Immigration Appeals he sought a writ of habeas corpus in the district court. He is here on an appeal from the district court's order denying the writ.

Carson is about fifty-four years old. He was born in Italy and entered the United States as a stowaway in 1919. Under the Immigration Act of February 5, 1917, then in effect, deportation proceedings could have been brought against him at any time within five years after his entry as a stowaway. No such proceedings were brought, and relator thereafter became immune from deportation on the stowaway charge under then existing law.¹

In 1936 Carson was convicted in Ohio courts of two separate offenses of blackmail and was sentenced to a prison term of one to five years upon each conviction. After his release from prison in 1941 deportation proceedings were commenced against him under a warrant of arrest issued in 1937, based upon these two criminal convictions. In 1945 the outstanding order of deportation was withdrawn and the proceedings were terminated when the Governor of Ohio granted a conditional pardon for the second of his two convictions. This pardon was granted to Carson "From this time forward, conditioned upon good behavior and conduct and provided that he demeans himself as a law-abiding person and is not convicted of any other crime, otherwise this pardon to become null and void." It is conceded that the pardon granted to Carson was sufficient to confer immunity to deportation under the law then in effect.²

So far as the record shows, Carson has been a law-abiding person since his release from the penitentiary in 1941. He is married to a native born citizen and is the father of four native born children, two of them dependent minors. He is a carpenter and builder, earning about $6,000 a year.

The current deportation proceedings were initiated under the provisions of the Immigration and Nationality Act, effective December 24, 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq. They are based upon Carson's entry as a stowaway thirty-six years ago, and upon his two criminal convictions almost twenty years ago. Though conceding that Carson had acquired a status of nondeportability prior to the passage of the 1952 Act, appellee contends that Carson has now become deportable by virtue of the provisions of that statute.

The claim that Carson is deportable by reason of having entered as a stowaway is based upon Section 241(a) (1) of the 1952 Act, 66 Stat. 204, 8 U.S.C.A. § 1251(a) (1). That section provides: "Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — (1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry". As to Carson's deportability by reason of the two 1936 convictions despite his conditional pardon for one of them, appellee relies upon Section 241(a) (4) and Section 241(b) of the 1952 Act, 8 U.S.C.A. § 1251(a) (4) and 8 U.S.C.A. § 1251(b). The first of these sections provides in part: "Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — * * * (4) * * * at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct * * *." The second of the two sections provides in part: "The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by * * * the Governor of any of the several States * * *." (Emphasis added.)

As to each of the grounds upon which the proposed deportation is based, appellee also calls our attention to Section 241 (d) of the 1952 Act, 8 U.S.C.A., § 1251 (d). That section provides: "Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a) of this section, notwithstanding (1) that any such alien entered the United States prior to June 27, 1952, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a) of this section, occurred prior to June 27, 1952."

In the district court it was contended that since Carson was not deportable under the law as it existed prior to the effective date of the 1952 Act, that statute, insofar as it sought to make his previous conduct grounds for deportation, was an ex post facto law and therefore violative of Article I, Section 9, of the Constitution. In a brief memorandum incorporating the findings and reasoning of the Board of Immigration Appeals, the district court rejected this contention and denied the writ.

In this respect the court's conclusion was entirely correct, and supported by unambiguous authority. "And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation." Galvan v. Press, 1954, 347 U.S. 522, at page 531, 74 S.Ct. 737, at page 743, 98 L.Ed. 911. "That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state. Such is the traditional power of the Nation over the alien and we leave the law on the subject as we find it." Harisiades v. Shaughnessy, 1952, 342 U.S. 580, at pages 587-588, 72 S.Ct. 512, at page 518, 96 L.Ed. 586. "The interest which an alien has in continued residence in this country is protected only so far as Congress may choose to protect it; Congress may direct that all shall go back, or that some shall go back and some may stay; and it may distinguish between the two by such tests as it thinks appropriate." United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 490. So if the question here were one only of the power of Congress to deport Carson, the answer would seem clear that that power exists.

The unanswered question in this case, however, is not what Congress had the power to do, but what it did do. As to that, the above-cited statutory provisions, standing alone, would appear to give a clear answer, and require affirmance of the district court's order denying the writ of habeas corpus. But these provisions do not stand alone.

Section 405 of the 1952 Act, 8 U.S. C.A., § 1101 note contains a broad general savings clause. This clause provides in material part as follows:

"(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of * * * any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such * * * statutes sic, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * *"

This section therefore preserves Carson's status of nondeportability, "unless otherwise specifically provided" in the Act. It is appellee's contention that the Act does "otherwise specifically provide," in the above-cited sections upon which he relies. Relator insists that the quoted sections do not "otherwise specifically provide." Upon the resolution of that issue depends the disposition of this appeal.

The scope of the savings clause has recently been examined by the Supreme Court in two cases decided the same day, United States v. Menasche, 1955, 348 U.S. 528, 75 S.Ct. 513, and Shomberg v. United States, 1955, 348 U.S. 540, 75 S.Ct. 509. Though both cases involved the naturalization rather than the deportation provisions of the 1952 Act, the analysis the opinions make of the savings clause is significantly helpful in determining the questions at issue in the present case.

In the Menasche case it was held that the savings clause operated to protect the alien's previously acquired status. The Court traced the origin and development in our immigration and naturalization statutes of this savings provision. 348 U.S. 528, at pages 531-535, 75 S.Ct. 513, at pages 515-517. It was the Court's conclusion that "The whole development of this general savings clause, its predecessors accompanying each of the recent codifications in the field of immigration and naturalization, manifests a well-established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress." 348 U.S. at page 535, 75 S.Ct. at page 518.

In the Shomberg case the Court held that the savings provisions of section 405 of the Act did not preserve the alien's...