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alien convicted for illegally possessing marijuana before enactment of the amendment, and the statute was found constitutional in Gardos V. INS, 324 F. 2d 179 (2d Cir. 1963). 3. Persons amonable to expulsion

The applicability of the expulsion laws to persons who formerly were citizens or nationals of the United States has come into question in a number of situations. As noted under section 101, certain aspects of the expulsion laws, such as those dealing with crimes, are keyed to an entry into the United States. Iu such cases, the courts have held that deportability must be predicated on entry as an alien and that a Filipino who had entered while he still was a national of the United States was not deportable. Barber v. Gonzales, 347 U.S. 637 (1954). In Rabang v. Boyd, 353 U.S. 427 (1957), the Court held, however, that the same consequence did not follow where the particular statute, there the one aimed at narcotics violators, was not keyed to an entry and merely prescribed deportation for misconduct in the United States. The requirement of entry as an alien was applied in Brancato v. Lenmann, 239 F. 2d 663 (6th Cir. 1956), where the court refused to approve deportation of a criminal violator who was a naturalized citizen at the time of his entry although the naturalization was later revoked. Another aspect of this problem was confronted in Costello v. INS, 376 U.S. 120 (1964), which ruled that under the language relating to deportation upon conviction for two crimes involving moral turpitude (sec. 241 (a) (4)), a deportation order was not proper against a person who was a naturalized citizen at the time of such conviction, even though his naturalization was later revoked for fraud.

Another decision of interest supported the propriety of deportation proceedings against a former citizen of the United States who was alleged to have expatriated himself. The Court of Appeals for the Second Circuit ruled that a deportation order could be entered on an administrative finding of alienage and reversed a district court holding that there was no power to order deportation until there was a judicial finding that expatriation had occurred. Marks v. Esperdy, 315 F. 2d 673 (2d Cir. 1963), aff'd by an equally divided Supreme Court, 377 U.S. 214 (1964). 4. Entry in violation of law (241(a)(1))

Prior law prescribed a statute of limitations for deportation based on certain improper entries. This statute of limitations was eliminated by the 1952 Act which also made most grounds of deportation retroactive. This meant that some aliens who previously had escaped deportation because of the expiration of the statute of limitations again became deportable. Such retroactivity has been unheld. De Lucia v. Pilliod, 297 F. 2d 58 (7th Cir. 1961), cert. denied, 369 U.S. 837 (1962); Cavallaro v. Lehmann, 264 F. 2d 237 (6th Cir. 1959); Lehmann v. Carson, 353 U.S. 685 (1957).

Yet, where a married alien unlawfully entered the United States as an unmarried daughter of a U.S. citizen, annulment of her marriage after enter was not given retroactive effect so as to cure her illegal entry; hence she was deportable under this section. Hendrix v. INS, 583 F. 2d 1102 (9th Cir. 1978).

5. Crimes involving moral turpitude (241(a)(4))

a. Conriction for crime.--The initial requirement is that the offense must be a crime. Here a state's classification of the offense is not necessarily controlling since Congress intended to prescribe a uniform standard, applicable in all states. Babouris v. Esperdy, 269 F. 2d 621 (2d Cir. 1959) (soliciting men to commit crimes against nature or other lewdness). Some problems have been encountered in relation to the prosecution of juvenile offenders. If they are prosecuted and convicted as adults, they may be amenable to deportation. Circella v. Sahli, 216 F. 2d 33 (7th Cir. 1954), cert. denied, 348 U.S. 964 (1955). However, if the alien is treated as a juvenile offender, he may not be regarded as convicted of a crime. Tutrone v. Shaughnessy, 160 F. Supp. 433 (S.D. N. Y. 1958).

More difficult questions have been presented in determining whether there has been a conviction within the contemplation of the statute. In Pino v. Landon, 349 U.S. 901 (1955), the Supreme Court held that a conviction which had been revoked and placed on file under Massachusetts procedure had not attained sufficient finality to support an order of deportation. It has been held that a conviction occurs when a sentence is imposed but its execution is suspended. Wood v. Hoy, 266 F. 2d 825 (9th Cir. 1959); Arrellano-Flores v. Hoy, 262 F. 2d 667 (9th Cir. 1958). A finding of guilty in California for a narcotics violation after which the proceedings were suspended and defendant placed on probation for three years, on condition that he spend the first ninety days in the county jail, was held to be a conviction under the deportation statute. Gutierrez v. INS, 323 F. 2d 593 (9th Cir. 1963). A finding of guilty following a plea of no lo contendere also has been regarded as à conviction for such purposes. Ruis-Rubio v. INS, 380 F. 2d 29 (9th Cir. 1967), cert. denied, 389 U.S. 944 (1967). In Marino v. INS, 537 F. 2d 686 (2d Cir. 1976), the court held that even though an alien had been found guilty of fraudulent destruction of his own property while at home in Italy, because he neither waived nor was allowed to exhaust his right to appellate review, his Italian conviction never achieved the finality necessary to render him "convicted” and thus he was still eligible for adjustment of status.

Some jurisdictions have provisions for expungement of a conviction after an offender serves his sentence. Such expungement may remove the conviction as a basis for deportation. Burr v. INS, 350 F. 2d 87 (9th Cir. 1965), cert. denied, 383 U.S. 915 (1966); Cf. Zgodda v. Holland, 184 F. Supp. 847 (E.D. Pa. 1960). This result does not follow in the case of a narcotics conviction for which Congress has prescribed greater severity. Garcia-Gonzales v. INS, 344 F. 2d 804 (9th Cir. 1965), cert. denied, 382 U.S. 840 (1965). Henrandez-Valensuela v., Rosenberg, 304 F. 2d 639 (9th Cir. 1962). In any event, the possibility that the conviction may later be expunged does not deprive it of the necessary finality. Kolios v. INS, 532 F. 2d 786 (1st Cir. 1976), cert. denied, 429 U.S. 884 (1976).

However, where there has been an expungment of a narcotics offense under the Federal Youth Corrections Act, 18 U.S.C. 5021, it has been held that the conviction has been nullified as a ground for deportation. Morera v. INS, 462 F.2d 1030 (1st Cir. 1972). Similarly, where a nonimmigrant's state narcotics conviction was accompanied by a certificate of relief from disabilities, which was clearly intended to

prevent automatic deportation, and full expungement of a federal conviction would have been available in an analogous case, the alien was not "convicted” and thus not subject to the mandatory deportation under section 241(a)(11). Rehman v. INS, 544 F.2d 71 (2d Cir. 1976). The expungement of a conviction by writ of coram nobis also may remove it from consideration for deportation purposes. See Wood v. Hoy, 266 F. 2d 825 (9th Cir. 1959); United States v. Marcello, 210 F. Supp: 892 (E.D. La. 1962). In any event, the question whether a conviction is final for deportation purposes is a federal, rather than a state, question. Gutierrez v. INS, 323 F. 2d 593 (9th Cir. 1963); Arrellano-Flores v. Hoy, 262 F.2d 667 (9th Cir. 1958). Lastly, conviction by a court-martial or military court has been deemed insufficient to incur deportability. Gubbels v. Hoy, 261 F. 2d 952 (9th Cir. 1958).

b. Two or more convictions.—Conviction, at any time after entry, of two or more crimes involving moral turpitude, which do not arise "out of a single scheme of criminal misconduct" constitutes a ground for deportation. The "single scheme" restriction has resulted in considerable litigation. Some courts have read this language quite restrictively, holding a single scheme present in different acts of bribery, larceny, and fraud in obtaining money from a city over a two-year period (Jeronimo v, Murff

, 157 F. Supp. 808 (S.D. N. Y. 1957); tax fraud for liquor violations on different dates (Zito v. Moutal, 174 F. Supp. 531 (N.D. Ill. 1959)); two similar crimes involving thefts of automobiles committed within one day of each other (Sawkow v. INS, 314 F. 2d 34 (3d Cir. 1963)), and two robberies by the same group three days apart (Wood v. Hoy, 266 F. 2d 825 (9th Cir. 1959)). Other courts have been more expansive in their reading and have found no single scheme present in convictions for tax evasion for separate years (Costello v. INS, 311 F. 2d 343 (2d Cir. 1962), reversed on other grounds, 376 U.S. 120 (1964)); (Khan v. Barber, 253 F. 2d 547 (9th Cir. 1958), cert. denied, 357 U.S. 920 (1958); and separate charges of lewdness and indecent assault (Fitzgerald v. Landon, 238 F. 2d 864 (1st Cir. 1956)). Likewise, in Pacheco v. INS, 546 F. 2d 448 (1st Cir. 1976), cert. denied, 430 U.S. 985 (1977), the court declined to find a single scheme so as to preclude deportation of an alien who was convicted of two break-ins, separated by a two day interval and connected only by a prolonged period of drunkenness.

Unless the facts and circumstances clearly indicate otherwise, the burden is on the Government to show that the crimes did not arise out of a single scheme of misconduct. Sawkow v. INS, 314 F. 2d 34 (3d Cir. 1963); Cf. Costello v. INS, supra.

c. Sentence. —Where conviction is for a single crime within five years after entry, the statute requires that the conviction must be followed by a sentence of a year or more in a prison or corrective institution. If the sentence is indeterminate, its possible maximum is controlling for the purpose (Dentico v. Esperdy, 280 F. 2d 71 (2d Cir. 1960)), even though an alien's actual release occurs before a year's confinement (Petsche v. Clingan, 273 F. 2d 688 (10th Cir. 1960)). A suspended sentence has been found effective for deportation purposes. Burr v. Edgar, 292 F. 2d 593 (9th Cir. 1961).

It has been held that state law must be consulted to determine the purpose of the confinement and when the aim of the confinement is

treatment rather than punishment, there is no sentence for deportation purposes. Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958).

d. Scope and definition of moral turpitude.The courts have repeatedly held that any larceny, whether grand or petty, involves moral turpitude, Wyngaard v. Kennedy, 295 F. 2d 184 (D.C. Cir. 1961), cert. denied, 368 U.S. 926 (1961); Orlando v. Robinson, 262 F. 2d 850 (7th Cir. 1959), cert. denied, 359 U.S. 980 (1959); Qinlodran-Brau v. Holland, 232 F. 2d 183 (3d Cir. 1956).

e. Pardon or judicial recommendation against deportation (241(b)).Since a pardon must be "full and unconditional,” à conditional pardon is not effective to prevent deportation. Lehmann v. Carson, 353 U.S. 685 (1957). A pardon cannot be vitiated or ignored on a claim that it was fraudulently obtained in the absence of action by the granting authority to revoke it. Taran v. United States, 266 F. 2d 561 (8th Cir. 1959).

In order to forestall deportation, a judicial recommendation must be made "at the time of first imposing judgment or passing sentence or within thirty days thereafter." There is a division of authority as to whether an omission to make a timely recommendation can be corrected by a corum nobis revocation of the conviction, followed by reimposition of the same sentence, with a recommendation against deportation. Favoring the affirmative is Sawkow v. INS, 314 F. 2d 34 (3d Cir. 1963), which found that state law was determinative as to whether a valid conviction had occurred initially. Opposed is Piperkoff v. Esperdy, 267 F. 2d 72 (2d Cir. 1959), which found that the statutory specification of the time of "first" imposing sentence outlawed such procedure for deportation purposes. Moreover, the time limitation on making a recommendation against deportation cannot be avoided by contending that the alien, his attorney, and the sentencing judge did not know that the alien could have made application on the sentencing court for a recommendation against deportation pursuant to section 241(b)(2) of the Immigration and Nationality Act. Marin v. INS, 438 F. 2d 932 (9th Cir. 1971). cert. denied, 304 U.S. 923 (1971). Yet, in Cerujo v. INS, 570 F. 2d 1323 (7th Cir. 1978), the court held that the alien should not be penalized because INS had not been given prehearing notice of the state judge's recommendation against deportation; there was no evidence that the alien's role in failure to give notice was intentional, and the judge was available and willing to consider the nondeportation recommendation.

Another aspect of the provisions for pardon or judicial recommendation is that they are limited to convictions for crimes involving moral turpitude and do not ameliorate deportability for other offenses mentioned in the statute, e.g., bringing in aliens in violation of the law. Ten v. INS, 307 F. 2d 832 (9th Cir. 1962), cert. denied, 371 U.S. 968 (1963). Rehman v. INS, 544 F. 2d 71 (2d Cir. 1976), held otherwise. One court has ruled that a trial judge's recommendation against deportation of an alien convicted of fraud prevents discretionary consideration of the conviction in adjustment of status proceedings as well. Giambanco v. INS, 531 F. 2d 141 (3d Cir. 1976). 6. Violators of registration and reporting requirement (241(a)(5))

This provision for deportation is new in the 1952 Act, and its constitutionality has been upheld. Czapkowski v. Holland, 220 F. 2d 436 (3d Cir. 1955), cert. denied, 350 U.S. 826 (1955). An alien who requires that INS officials focus not on whether a bona fide and lasting relationship exists at the time the application is reviewed but on whether a valid marriage was entered into in the first place. Whetstone V. INS, 561 F. 2d 1303 (9th Cir. 1977).

SECTION 215. TRAVEL CONTROL DURING TIME OF WAR OR

NATIONAL EMERGENCY

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Decisions relevant to this section chiefly have concerned the requirement of American passports by citizens departing from or reentering the United States during a national emergency. In Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court underscored the critical value of an American passport, particularly in the light of section 215, and found that while the Secretary of State's power to issue passports is discretionary, such discretion is not unbridled. It held that the Secretary of State did not then have authority to deny passports because of Communist membership or associations since the relevant provision of the Internal Security Act had not yet become effective. In Aptheker v. Secretary of State, 378 U.S. 500 (1964), a statutory provision precluding the issuance of passports to Communists was found unconstitutional as too broad. On the other hand, the restrictions imposed on travel of American citizens to Cuba were upheld by the Supreme Court. Zemel v. Rusk, 381 U.S. 1 (1965). Similar restrictions on travel to Communist China have also been upheld. Porter v. Herter, 278 F. 2d 280 (D.C. Cir. 1960) cert, denied, 364 U.S. 837 (1960); Worthy v. Herter, 270 F. 2d 905 (D.C. Cir. 1959); Frank v. Herter, 269 F. 2d 245 (D.C. Cir. 1959), cert. denied, 361 U.S. 918 (1959). However, it has been held that the statute does not authorize the Secretary of State to refuse to issue or renew a passport if the citizen agrees to abide by the area restrictions in using the passport but plans to travel to restricted areas without using his passport, Lynd v. Rusk, 389 F. 2d 940 (D.C. Cir. 1967).

In another type of restrictive situation, not limited in scope to times of war or national emergency, the Supreme Court in Califano v. Aznavorian, 439 U.S. 170 (1978), held that section 1611(b) of the Social Security Act, which provides that no person shall receive Supplemental Security Income benefits for any month spent entirely outside the United States, has a rational basis and its incidental effect on the freedom of international travel does not render it unconstitutional.

In Worthy v. United States, 328 F. 2d 386 (5th Cir. 1964), the criminal penalty imposed upon a citizen entering the United States without à valid passport was found unconstitutional as an improper restraint on his right to return to his own country. Moreover, the Supreme Court has held that the criminal penalties imposed by this section apply only to one'who has departed without a valid passport and are inapplicable when the holder of the passport simply violates restrictions on its use. United States v. Laub, 385 U.S. 475 (1967); Travis v. United States, 385 U.S. 491 (1967).

SECTION 224. IMMEDIATE RELATIVE AND SPECIAL IMMIGRANT

VISAS

Children of special immigrants may be admitted as special immigrants exempt from labor certification requirements provided that

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