United States v. O'ROURKE, No. 14995.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSANBORN, JOHNSEN and COLLET, Circuit
Citation213 F.2d 759
PartiesUNITED STATES ex rel. DE LUCA v. O'ROURKE.
Docket NumberNo. 14995.
Decision Date14 July 1954

213 F.2d 759 (1954)

UNITED STATES ex rel. DE LUCA
v.
O'ROURKE.

No. 14995.

United States Court of Appeals Eighth Circuit.

June 17, 1954.

Rehearing Denied July 14, 1954.


213 F.2d 760

R. T. Brewster, Kansas City, Mo. (Hunt C. Moore, Kansas City, Mo., on the brief), for appellant.

Horace Warren Kimbrell, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., and William O. Russell, Asst. U. S. Atty., Joplin, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

Giuseppe (Joseph) DeLuca, an alien in custody under a warrant for deportation issued October 15, 1953, by the Acting District Director, Kansas City District, Immigration and Naturalization Service, Department of Justice, petitioned the District Court for release on habeas corpus. The court issued an order to show cause directed to the respondent, J. L. O'Rourke, District Director, United States Immigration and Naturalization Service, Department of Justice (appellee). After his response to the order and after a hearing, the court denied and dismissed the petition. DeLuca has appealed.

The order for the deportation of DeLuca, in so far as it was sustained by the Board of Immigration Appeals, was based upon findings of the Special Inquiry Officer of the Immigration and Naturalization Service who conducted the deportation hearing, that DeLuca was an alien who had twice been convicted and sentenced for violating the law relating to the importation and sale of narcotic drugs and who was therefore subject to deportation under Section 241 (a) (11) of the Immigration and Nationality Act, 66 Stat. 163 et seq., effective December 24, 1952, 8 U.S.C.A. § 1251 (a) (11). Section 241(a) (11) provides as follows:

"(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who —
* * * * * *
"(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production,
213 F.2d 761
compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate".

DeLuca, a sixty-year old alien, had first come to the United States in 1910 from Italy, where he was born, and had last entered the United States in 1934 from Italy as a returning resident. Two judgments of conviction were entered against him on March 27, 1943, in the United States District Court for the Western District of Missouri, one based upon the verdict of a jury finding him guilty under an indictment, based on 21 U.S.C. (1940 Ed.) § 174, the "Narcotic Drugs Import and Export Act", charging him and others with the concealment of narcotic drugs, knowing them to have been imported unlawfully into the United States; the other conviction based on his plea of guilty to an indictment under the same statute,1 charging him and others with the sale of narcotic drugs, knowing them to have been unlawfully imported into the United States. The District Court sentenced DeLuca to three years imprisonment for each offense, the sentences to be served concurrently.

DeLuca admitted that he was an alien who had been convicted of violations of law relating to the illicit traffic in narcotic drugs. One of his main contentions in the District Court in the habeas corpus proceedings was that, under an agreement with the United States Attorney whereby DeLuca was to forego an appeal from the judgment of conviction entered upon the jury verdict under the first indictment and was to enter a plea of guilty to the second indictment, in consideration of the United States Attorney recommending to the court that DeLuca be given a certain sentence and that the court recommend to the Attorney General that DeLuca be not deported, he had, in effect, acquired the status of a nondeportable alien, the court having accepted the recommendations of the United States Attorney and having recommended to the Attorney General in each of the cases that DeLuca be not deported. DeLuca also contended that to give Section 241(a) (11) of the Immigration and Nationality Act of 1952 a retrospective effect would be violative of his constitutional rights.

Judge Reeves, who sentenced DeLuca and who also entered the order from which he has now appealed, made timely recommendations, in conformity with Section 155(a) of Title 8 U.S.C., 1940 Ed., to the Attorney General that DeLuca be not deported because of his convictions upon charges of having violated Section 174 of Title 21 U.S.C. (1940 Ed.).

At the time Judge Reeves, in 1943, imposed sentences upon DeLuca, Section 155(a) of Title 8 U.S.C., 1940 Ed., provided as follows:

"(a) * * * 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, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this chapter; * * *."

Section 175 of Title 21 U.S.C., 1940 Ed. provided:

"§ 175. Any alien who at any time after his entry is convicted under
213 F.2d 762
section 174 of this title shall upon the termination of the imprisonment imposed by the court upon such conviction and upon warrant issued by the Secretary of Labor be taken into custody and deported in accordance with the provisions of sections 155 and 156 of Title 8 or provisions of law hereafter enacted which are amendatory of or in substitution for such sections."

In the habeas corpus proceeding, Judge...

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45 practice notes
  • Cnty. of Charles Mix v. United States Dep't of the Interior, No. CIV 10–3012–RAL.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 31, 2011
    ...officer in administrative proceedings or to justify a ruling that the hearing was unfair.” United States ex rel. De Luca v. O'Rourke, 213 F.2d 759, 765 (8th Cir.1954). A party claiming bias on the part of an administrative tribunal must overcome “a presumption of honesty and integrity in th......
  • Costello v. Immigration and Naturalization Service, No. 83
    • United States
    • United States Supreme Court
    • February 17, 1964
    ...13. See Jew Ten v. Immigration and Naturalization Service, 307 F.2d 832 (C.A.9th Cir.). Cf. United States ex rel. De Luca v. O'Rourke, 213 F.2d 759 (C.A.8th Cir.); Ex parte Robles-Rubio, 119 F.Supp. 610 (D.C.N.D.Cal.). 14. Section 19 of the 1917 Act specified three categories of aliens depo......
  • Padilla v. Ky., No. 08-651
    • United States
    • United States Supreme Court
    • March 31, 2010
    ...early as 1922, 4 the JRAD procedure was generally available to avoid deportation in narcotics convictions. See United Statesv. O'Rourke, 213 F.2d 759, 762 (CA8 1954). Except for "technical, inadvertent and insignificant violations of the laws relating to narcotics, " ibid., it appears that ......
  • C. Line, Inc. v. City of Mali, No. 3:11–cv–92.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • August 2, 2013
    ...a “substantial showing” that the adjudicator was biased or the hearing was otherwise unfair. United States ex rel. De Luca v. O'Rourke, 213 F.2d 759, 765 (8th Cir.1954). In this case, C. Line has made a substantial showing that the October 22–23, 2009 hearing was fundamentally unfair, both ......
  • Request a trial to view additional results
45 cases
  • Cnty. of Charles Mix v. United States Dep't of the Interior, No. CIV 10–3012–RAL.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 31, 2011
    ...officer in administrative proceedings or to justify a ruling that the hearing was unfair.” United States ex rel. De Luca v. O'Rourke, 213 F.2d 759, 765 (8th Cir.1954). A party claiming bias on the part of an administrative tribunal must overcome “a presumption of honesty and integrity in th......
  • Costello v. Immigration and Naturalization Service, No. 83
    • United States
    • United States Supreme Court
    • February 17, 1964
    ...13. See Jew Ten v. Immigration and Naturalization Service, 307 F.2d 832 (C.A.9th Cir.). Cf. United States ex rel. De Luca v. O'Rourke, 213 F.2d 759 (C.A.8th Cir.); Ex parte Robles-Rubio, 119 F.Supp. 610 (D.C.N.D.Cal.). 14. Section 19 of the 1917 Act specified three categories of aliens depo......
  • Padilla v. Ky., No. 08-651
    • United States
    • United States Supreme Court
    • March 31, 2010
    ...early as 1922, 4 the JRAD procedure was generally available to avoid deportation in narcotics convictions. See United Statesv. O'Rourke, 213 F.2d 759, 762 (CA8 1954). Except for "technical, inadvertent and insignificant violations of the laws relating to narcotics, " ibid., it appears that ......
  • C. Line, Inc. v. City of Mali, No. 3:11–cv–92.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • August 2, 2013
    ...a “substantial showing” that the adjudicator was biased or the hearing was otherwise unfair. United States ex rel. De Luca v. O'Rourke, 213 F.2d 759, 765 (8th Cir.1954). In this case, C. Line has made a substantial showing that the October 22–23, 2009 hearing was fundamentally unfair, both ......
  • Request a trial to view additional results

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