United States v. McCandless, M-137.
| Decision Date | 28 September 1928 |
| Docket Number | No. M-137.,M-137. |
| Parties | UNITED STATES ex rel. GRIFFO v. McCANDLESS. |
| Court | U.S. District Court — Western District of Pennsylvania |
Adrian Bonnelly, of Philadelphia, Pa., for relator.
George W. Coles, U. S. Atty., and Howard Benton Lewis, Asst. U. S. Atty., both of Philadelphia, Pa., for defendant.
The conclusion reached is that the relator be discharged without day. The question here is wholly one of power. We do not go (beyond the record of conviction) into the vexing question of what kind of an act evidences "moral turpitude," further than to note that the public authorities have passed upon the character of this alien's conduct, and we would see no need to review their judgment. Assuming the alien here has been guilty of conduct evidencing such moral turpitude as would (if the power exists) justify a sentence of deportation, the question recurs: Have the immigration officials the lawful power to deport him? If they have, we see no justification for interference; if the power has not been conferred upon them, they cannot be permitted to use it.
We may premise that the question is not affected by the situation of the alien. It is urged upon us that this relator, with all the "moral turpitude" which can be heaped upon his head, is an American, not a foreign, product. He was brought to this country when 2 years of age. He is now 28 and during his whole life, since he came to the United States, he has resided here. All the members of the family of his parents reside here, and his nine brothers and sisters are citizens. He married here a native-born citizen. No one would be disposed to view a sentence of deportation as a light matter. He had been tried and sentenced for the offense of aggravated assault and battery. As the term of his sentence was about to expire, these deportation proceedings were taken. He is in consequence to suffer a double punishment for his crime.
The act of Congress does not, however, discriminate between aliens on the ground of the length of time they have been in this country; nor between those whose relatives live here and those whose relatives live abroad; nor between the married and the unmarried. The power to deport applies to all alike in these respects. Congress has not discriminated, and it is clear the courts cannot.
The real question, we repeat, is wholly one of power. Section 19 of the Act of February 5, 1917 (8 USCA § 155), grants it, if it is possessed. This act confers it, if the alien is sentenced to more than one year's imprisonment for a crime "involving moral turpitude." This relator served a term of imprisonment of more than one year for burglary. He would be, in consequence, clearly within the act, except for the further provision that the crime must have been committed "within five years" after the alien came to this country. The burglary charge alone will thus not warrant deportation.
The act of Congress, however, adds another class of deportable aliens. Those may be deported who are sentenced more than once (to a year's imprisonment) "on conviction of any crime involving moral turpitude committed at any time after entry." Whatever meaning may be given to this language, it at least means that each of at least two of the crimes must have been visited with the named length of term of imprisonment, and must have been a crime to which the phrase "involving moral turpitude" fitly applies.
It may be interpolated here that the diligence of counsel for the United States has been rewarded by the finding that the relator had also been convicted and sentenced for larceny; but as we have not been informed as to the term of imprisonment to which he was sentenced, and as this is not given as a ground for the order of deportation, we pass the fact as one introduced to give color to the cause. The question is thus narrowed to that of whether "aggravated assault and battery" implies the moral...
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