United States v. Smith

• Decision Date: 01 February 1933
• Docket Number: No. 4607.,4607.
• Citation: 62 F.2d 808
• Parties: UNITED STATES ex rel. VOLPE v. SMITH, District Director of Immigration.
• Court: U.S. Court of Appeals — Seventh Circuit

62 F.2d 808 (1933)

UNITED STATES ex rel. VOLPE v. SMITH, District Director of Immigration.

No. 4607.

Circuit Court of Appeals, Seventh Circuit.

January 11, 1933.

Rehearing Denied February 1, 1933.

John Elliott Byrne, of Chicago, Ill., for appellant.

Thomas Dodd Healy, of Chicago, Ill., for appellee.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge (after stating the facts as above).

The legal questions involved may be stated in the form of two queries:

First. Is an alien deportable under Section 155, Title 8, U. S. C. (8 USCA § 155), which provides for the deportation of "any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude," because of a conviction in the United States for counterfeiting, which conviction occurred nineteen years after his first entry and three years prior to his reentry?

Second. Does an alien enter the United States without inspection within the meaning of the statute (8 U. S. C. § 155 8 USCA § 155) subjecting him to deportation therefor, when he falsely states to the immigration inspector upon reentry that he is a naturalized citizen of the United States and thereby avoids further interrogation by the inspector?

The district court answered the second question in the affirmative and dismissed the petition for habeas corpus. Judge Wilkerson answered the first question in the negative, basing his decision on what he believed to be the weight of divided judicial opinions. He did not express his personal opinion on this question, but said:¹

"The question is one which has not been decided by either the Supreme Court of the United States or the Circuit Court of Appeals for the Seventh Circuit. * * *

"It appears that this question has been decided against the United States by the Circuit Court of Appeals of two circuits. A District Court, in my opinion, should accept that as the weight of authority and should follow it, unless and until a different rule is laid down by the Supreme Court or by the Court of Appeals of this Circuit."

Courts which have passed on both questions have differed in their conclusions. This court has been unable to agree upon the correct answer to either question.

The part of the statute applicable to the facts set forth in the first query reads: "any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported."

Cases which hold that the deportable offense involving moral turpitude may have been committed in the United States or abroad are here collected.² Cases which limit the commission of the offense referred to by the statute to those committed abroad are also here collected.³

In reaching our conclusion on this question, the majority of this court have done so on the following assumptions and reasoning.

Entry into the United States and continuous residence herein afterwards are not natural nor inalienable rights which an alien possesses, but are privileges enjoyed by sufferance of the United States. Johannessen v. U. S., 225 U. S. 227, 240, 32 S. Ct. 613, 56 L. Ed. 1066. In other words, the United States may deny an alien permission to enter the United States altogether, and likewise the United States may remove the alien from its borders as it sees fit. This absolute right to deny entry to the alien, as well as the right to remove him from its boundaries, carries with it the lesser authority to impose conditions upon the alien's right to enter or to make his stay here conditional upon his good behavior, and his respect for law, and his non-violation of the criminal laws of the land. Congress has exercised its power to deal with the subject and has limited and restricted both the alien's right to enter and his right to remain after he has entered. Responding to a rising tide of public sentiment, Congress has, during the past fifteen years, made these limitations and restrictions more specific and drastic. The same authoritative voice of the United States has, with what seems to be a reasonable regard for the welfare of both the alien and the people of the United States, declared that an alien who has committed one of several designated crimes, all of which are offensive and reprehensible and involve moral turpitude, shall be excluded from the United States. In other words, it has provided that the alien who is here by sufferance, and who is, so to speak, a guest, betrays the confidence which was evidenced by his permission to enter, when he commits an offensive crime. This betrayal of confidence terminates his right to remain here. His privilege of staying may thereafter be revoked. Protection against removal of the alien by the United States, however, has been provided by extending to him the privilege of citizenship which is open to all who have lawfully entered the United States for the purpose of residing here permanently. Once a citizen, the alienborn is not subject to deportation.

The entire matter being one for determination by the United States Government, and Congress having spoken on the matter, courts may not legislate on the subject or attempt to substitute their judgments for that of Congress.

In studying the language of this statute, it is significant to note that the crimes specified are those familiar to the people of the United States — "felony," "misdemeanor." The phrase "involving moral turpitude" is a familiar term in the courts of the United States. The language thus adopted is rather persuasive. For it would indeed be strange that Congress in phrasing the statute should define the offenses for which the alien might be removed, in the language of the American lawyer and the American court, if only offenses committed by the alien in a foreign country were to be included.

In Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967, and Claussen v. Day, 279 U. S. 398, 49 S. Ct. 354, 73 L. Ed. 758, the word "entry" as used in the above-quoted section was held to include a subsequent entry as well as the original entry. Why then should courts restrict its meaning by holding that the offense must be committed before the original entry? Finally, there is no reason — no basis for the distinction between like offenses committed abroad and those committed in the United States. When we make this statement we assume, of course, that appellant would be excludable had he practiced counterfeiting in Cuba. Are not the same reasons justifying his exclusion present if he counterfeited in the United States? The time limitations in the statute no doubt are in the nature of a Statute of Limitations, which has sound reason to support it. But a distinction based upon the place where the crime is committed is one which offers no rational explanation for the distinction which appellant has attempted to make.

It is not the length of the alien's residence in the United States that is significant. What controls is the fact that alien status has continued during all the years he resided in the United States. As an alien, he enjoyed certain privileges and immunities which would not have been his had he been a citizen. On the other hand, as such alien he was subject to deportation if and when Congress saw fit to provide for his removal. Under the legislation which Congress enacted on the subject, his stay was made to depend upon his own good behavior. If he saw fit to flout the laws of the country which gave him shelter, to engage in counterfeiting its money or its war savings stamps, then his exclusion was the result of his own improper conduct. If there be any basis for distinguishing between offenses committed abroad and those committed in the United States, it would seem that Congress might well have viewed the latter as the more reprehensible. For naturally, counterfeiting by the alien abroad, while conduct over which Congress would hardly be enthusiastic, would be less irksome, less provocative of action by Congress than indulging in a similar pastime in the United States.

It is, however, idle to further pursue the possible or probable reasons that motivated the various Congresses in passing the legislation enacted on the subject of immigration. But surely, in passing, it may be fairly and persuasively said that there are better reasons for closing the door to the immigrant who has a criminal record than for excluding one because he is illiterate, a pauper, or because of the color of his skin.

The question in the last analysis is a very narrow one. It is: What is the meaning of the word "entry"? Does it mean original entry? Or do the courts give to the word a meaning unrestricted by a limiting adjective? Fortunately, the Supreme Court, in Claussen v. Day and Lewis v. Frick, supra, defined it as meaning what it says — not only the original, the second or the last entry, but any entry.

Question number one should be answered in the affirmative.

As to the second question, the courts are likewise in disagreement as to the effect of an alien's falsely stating to the immigration inspector that he is a citizen of the United States. Herewith are collected cases which uphold an affirmative answer⁴ and also those which hold to the contrary.⁵

The section of the statute applicable to this question reads as follows: "* * * at any time within three years after entry, any alien * * * who enters without inspection, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported. * * *" (8 USCA § 155.)

The character of the deception which is here under consideration is significant. It was not one that went to a matter of detail — an incident in the officer's examination of the applicant. It was not merely a case of the applicant's falsifying. The falsification went to the vitals of any inspection. If appellant were a citizen of the United States, there was...