Weedin v. Tayokichi Yamada
| Decision Date | 23 March 1925 |
| Docket Number | No. 4359.,4359. |
| Citation | 4 F.2d 455 |
| Parties | WEEDIN, Commissioner of Immigration, v. TAYOKICHI YAMADA. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thos. P. Revelle, U. S. Atty., and Donald G. Graham, Asst. U. S. Atty., both of Seattle, Wash., for appellant.
M. J. Gordon, of Tacoma, Wash., and Tennant & Carmody, of Seattle, Wash., for appellee.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
On September 10, 1902, Tayokichi Yamada, a subject of Japan, entered the United States. His entry at that time was lawful. He continued to reside here until February 2, 1907, when he entered a plea of guilty to an information charging the crime of an assault with a deadly weapon, with intent to inflict bodily injury, where no considerable provocation appeared, or where the circumstances of the assault showed a willful, malignant, and abandoned heart, and was sentenced to imprisonment in the state penitentiary for the term of two years. On May 1, 1908, he was paroled from the penitentiary and resumed his residence in Seattle, Wash., where he continued to reside until September, 1913. On the latter date he made a trip to Japan to visit his parents, and returned to the United States, May 21, 1914, bearing a lawful passport from the imperial consul of Japan, and was admitted to the United States as a nonimmigrant. He has continued to reside in the United States since his return, and is now the father of two children, who are native-born citizens of the United States. On February 19, 1924, a warrant of arrest was issued by the Secretary of Labor, under which Yamada was arrested and ordered deported, on the ground that he had been convicted of and admitted the commission of a felony involving moral turpitude, prior to his entry into the United States. The alien thereupon applied to the court below for a writ of habeas corpus, and the commissioner of immigration has appealed from an order allowing the writ and granting a discharge.
The appellee was discharged by the court below, for the reason that the warrant of deportation was not issued within the time limited by law. Section 19 of the Immigration Act of February 5, 1917 (39 Stat. 889) being Comp. St. 1918, Comp. St. Ann. Supp. 1919, ß 4289ºjj, provides for the deportation of certain classes of aliens upon the warrant of the Secretary of Labor. In some instances the deportation is for acts committed before entry; in others for acts committed after entry. In some instances there is a time limit of five years; in others there is a time limit of three years, and in still others there is no time limit at all. The section first provides that, at any time within five years after entry, any alien who, at the time of entry, was a member of one or more of the classes excluded by law, shall be deported. Then follow provisions for the deportation of different classes of aliens, with different time limits, or with no time limit, until we reach the provision, "Any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude," for which no time limit is fixed or specified.
The appellee contends that he is a member of one of the classes excluded by law, and that his case is therefore controlled by the time limit of five years. The appellant, on the other hand, contends that there is no time limit fixed for the deportation of aliens of the particular class to which the appellee belongs. It must be conceded that the appellee is a member of one of the classes excluded by law, because section 3 of the act (section 4289ºb) expressly excludes from admission into the United States "persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude." But it must likewise be conceded that he also belongs to the special class for which no time limit is fixed, and under a familiar rule of statutory construction the special provision will control over the general one. This question was before the Circuit Court of...
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Ceron v. Holder
...F.2d 391 (S.D.N.Y.1926) (same); United States ex rel. Ciccerelli v. Curran, 12 F.2d 394 (2d Cir.1926) (same); Weedin v. Tayokichi Yamada, 4 F.2d 455 (9th Cir.1925) (Washington). As noted above, the fact that other assault statutes qualify under the federal definition is, today, insufficient......
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...States ex rel. Medich v. Burmaster, 8 Cir., 1928, 24 F. 2d 57 (concealing assets belonging to trustee in bankruptcy); Weedin v. Tayokichi Yamada, 9 Cir., 1925, 4 F.2d 455 (assault with a deadly United States ex rel. Leibowitz v. Schlotfeldt, 7 Cir., 1938, 94 F.2d 263; United States ex rel. ......
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...and therefore dictum. (Achen v. Pepsi-Cola Bottling Co. (1951) 105 Cal.App.2d 113, 124-125, 233 P.2d 74; see also Weedin v. Tayokichi Yamada (9th Cir. 1925) 4 F.2d 455, 456-457; Stockton v. Rattner (1972) 22 Cal.App.3d 965, 969, 99 Cal.Rptr. 787.) We must squarely face the problem created b......
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