United States v. Watterworth, Crim. No. 24147.

• Citation: 162 F. Supp. 527
• Decision Date: 02 May 1958
• Docket Number: Crim. No. 24147.
• Parties: UNITED STATES of America v. Wilfred Thornton WATTERWORTH.
• Court: U.S. District Court — District of Maryland

162 F. Supp. 527

UNITED STATES of America v. Wilfred Thornton WATTERWORTH.

Crim. No. 24147.

United States District Court D. Maryland.

May 2, 1958.

Leon H. A. Pierson, U. S. Atty., and Martin A. Ferris, Asst. U. S. Atty., Baltimore, Md., for the United States.

Harry Kairys, Baltimore, Md., and Robert T. Reynolds, Washington, D. C., for defendant.

R. DORSEY WATKINS, District Judge.

This criminal proceeding arises out of an indictment brought against the defendant under Section 1326 of Title 8 U.S.C.A., charging in one count that as an alien citizen of Canada, he had been arrested and subsequently deported from the United States on June 12, 1957 and thereafter was found in the United States on September 11, 1957 at Baltimore, Maryland, without having obtained the permission of the Attorney General to re-apply for admission to the United States as required by law. The right to a trial by jury was waived and the defendant proceeded to trial by the court. At the conclusion of the Government's evidence the defendant moved for judgment of acquittal, first, on the ground that there was a material variance between the indictment and the proof as to the date the alleged deportation occurred and, secondly, upon the ground that the proof offered was inadequate to establish that a final and valid order of deportation had ever been entered against the defendant. The court heard oral argument and then allowed the parties time for the filing of briefs. The defendant offered no evidence.

The first ground for the motion for acquittal was abandoned by the defendant in the brief submitted by him,¹ thus leaving for consideration only the question of whether or not there was a valid, final order of deportation outstanding against the defendant at the time of his departure from the United States. The answer to this question requires an application of the immigration and naturalization regulations then in effect to the facts developed by the testimony and exhibits.

The evidence shows that the defendant, a native and citizen of Canada, arrived in the United States from Canada at Washington, D. C. on December 10, 1956 and received a six month visitor visa; that he was apprehended in Florida by the border patrol after he had been working in the United States in violation of the conditions of his visitor visa; that at the time of his apprehension, he was granted voluntary departure; that he did not effect such departure, and on April 26, 1957, at Tampa, Florida, a hearing was held by the Immigration and Naturalization Service to determine his deportability. The hearing was presided over by a special inquiry officer referred to also as a hearing officer. The defendant-respondent was not represented by counsel at said proceedings, although duly informed of his right to be so represented. In the course of the proceedings and hearing, defendant-respondent admitted deportability, but applied for the discretionary relief of voluntary departure. The hearing officer did not prepare or serve a written decision or order pursuant to such hearing, but did state an oral decision and order at the conclusion of the hearing.

At the close of the hearing the following colloquy took place between the hearing officer and the defendant:

"By Hearing Officer: I will now state for the record my decision in this matter. My decision will be a part of this record, but will be typed separately."

(At this point the hearing officer stated orally for the record his decision² in this matter.)

"Hearing Officer to Respondent: You have heard my decision in this case that you are to be deported from the United States. My decision is final unless you want to appeal to the Board of Immigration Appeals in Washington, D. C. If you want to appeal, you must pay a fee of $25 and you must put down on your appeal wherein you take exceptions to my findings. If you want to make an appeal, the entire record will be forwarded to the Board of Immigration Appeals in Washington, D. C. where the final decision would be rendered. Do you wish to appeal my decision or do you wish to accept it as final? A. I want to accept your decision but I am asking for a stay of deportation until I hear from the Congressional action on my private bill.

"By Hearing Officer: The stay of deportation is not granted by me. I will communicate this decision to the District Director.

"Q. Have you understood all the proceedings here today? A. Yes."

Thereafter on May 1, 1957 a warrant of deportation was issued by the District Director at Miami, Florida, but in the exercise of the discretion vested in him, he stayed the execution of the warrant and order of deportation. The defendant subsequently left the United States and entered Canada on two occasions; on May 10, 1957 and on June 12, 1957. In between these two departures, defendant was advised that his act of leaving the United States deported him and that if he did it again, he would be effecting his deportation and would thereafter have to apply to the Attorney General of the United States for permission to reapply for admission into this country. Notwithstanding this advice, on June 12, 1957, the defendant was seen leaving the United States at Calais, Maine and thereafter re-entered, and was found in, the United States without having applied for or obtained the permission of the Attorney General to re-apply for admission to this country as required by law.

Thus the uncontradicted and uncontroverted evidence establishes:

1. That the defendant was an alien.

2. That he was deportable.

3. That he departed the United States and went into Canada on May 10, 1957 and June 12, 1957.³

4. That he was present in the United States on September 11, 1957 and had not prior thereto obtained permission of the Attorney General to re-apply for admission to the United States.

Clearly an alien against whom a final order of deportation is outstanding executes that order and brings about his own deportation if he thereafter leaves the United States. Section 1101 (g) of Title 8 U.S.C.A. defines deportation as follows:

"(g) For the purposes of this chapter any alien ordered deported (whether before or after the enactment of this chapter) who has left the United States, shall be considered to have been deported in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed."

In accordance with this statutory definition and interpreting the statutory authority granted in Sections 1252 and 1253 of Title 8 U.S.C.A. by administrative regulation, it is provided:

"(c) Permission to depart when ordered deported. A district director may, in his discretion, permit an alien who has been ordered deported to deport himself from the United States at his own expense and to a destination of his own choice. Any alien who has so left the United States is considered to have been deported in pursuance of law." (8 C.F.R., 1956 Supp., Sec. 243.3(c)).

Lacking permission of the district director to depart or lacking even knowledge of the order of deportation and with no attempt to comply with such order, the alien deports himself upon his departure from the United States when a final order of deportation is outstanding. Corsetti v. McGrath, 9 Cir., 1940, 112 F.2d 719. Thus the issue in the instant case is the validity and finality of the order of deportation issued by the special inquiry officer in Tampa, Florida, on April 26, 1957 and the determination of that issue turns on whether or not the defendant waived his right to appeal the decision of the special inquiry officer. That decision was reached pursuant to a hearing prescribed by Section 1252 of Title 8 U.S. C.A. "Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this chapter, as the Attorney General shall prescribe." The regulations in effect at the time of the hearing involved in the instant case are set forth in 8 C.F.R., 1956 Supp., Section 242—"Proceedings to Determine Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal" and the pertinent regulations may be paraphrased as follows: Section 242.16(e) provides that the respondent may apply during the hearing for the discretionary relief of voluntary departure and that he has the burden of establishing his eligibility therefor and may submit evidence in support of such application.

Section 242.17 relates to the decision of the special inquiry officer. The decision may be oral or written. The decision shall contain a discussion of the evidence relating to the respondent's eligibility for discretionary relief requested and the reasons for granting or denying the application. Provision is made for a summary written decision where no discretionary relief is requested, or the application for voluntary departure is granted.⁴

Section 242.19 requires notice of the decision to be given. A written decision must be served on respondent by the district director, together with a notice of his right to appeal. A written summary decision shall be served by the special inquiry officer upon respondent at the conclusion of the hearing, and unless appeal from such decision is waived, the respondent shall be furnished two copies of Notice of Appeal and advised of the time for taking an appeal. An oral decision shall be stated to the respondent at the conclusion of the hearing. Unless appeal from the decision is "then and there waived", a typewritten copy of the oral decision shall be served in the same manner as a written decision.

Section 242.20 states that the order of the special inquiry officer shall be final except when an appeal is taken to the Board of Immigration Appeals.

Section 242.21(c) allows the respondent ten days in which to prepare and file appeal after receiving service of the decision.

If appeal was not waived, then in the instant case before a final...