E-080814
Decided by the Board January 28, 1954
Hearing — Not unfair where brief not permitted to be filed prior to special inquiry officer's decision — Section 242 of the Immigration and Nationality Act — Deportability under third clause of section 241 (a) (11) of the act — Date of conviction not material — Suspension of deportation, section 244 (a) (5) of the Immigration and Nationality Act.
(1) There is no requirement in section 242 of the Immigration and Nationality Act or the regulations promulgated thereunder that the special inquiry officer shall hear any extended argument or that he should permit counsel to file a brief prior to the rendering of the decision. A hearing is not unfair by reason of the fact that the special inquiry officer refuses to accept a brief prior to his decision.
(2) There is no requirement in the third clause of section 241 (a) (11) of the Immigration and Nationality Act that a conviction of narcotics violation must have occurred after entry. In view of the phrase "who has been convicted" contained in that clause, it is immaterial whether the conviction occurred prior to or subsequent to the last entry.
(3) An alien who was admitted to the United States in 1920, was convicted in 1926, and last entered the United States in 1933, is not precluded from applying for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act because of the language therein which refers to an act committed or status acquired subsequent to entry since his conviction in 1926 was subsequent to his original entry in 1920.
CHARGES:
Warrant: Act of 1952 — Convicted of violation of law relating to illicit traffic in narcotic drugs-section 241 (a) (11).
Lodged: Act of 1952 — Convicted of violation of law governing the sale, etc., of heroin-section 241 (a) (11).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer on November 4, 1953, directing the respondent's deportation.
The respondent is a 54-year-old male, native and citizen of Italy, who entered the United States on July 14, 1920, and was admitted for permanent residence. He testified that he last arrived in the United States on August 31, 1933, following a short absence in Italy, at which time he was in possession of a valid reentry permit. In 1926, the respondent was convicted on three counts of an indictment which charged respectively violations of sections 1, 2, and 8 of the Harrison Act of December 17, 1914, as amended. He was sentenced to imprisonment for 2 years on each count, the sentences to run consecutively. The special inquiry officer found that the lodged charge mentioned above had been sustained and directed deportation solely on that ground. The question of whether the respondent may be deportable also on the warrant charge is, therefore, not before us and will not be discussed.
We have carefully considered counsels' representations in their brief and at the oral argument. Several of these same points were previously raised and were considered by us in Matter of M----, A-2669541, Int. Dec. No. 442, decided June 1, 1953. We there rejected contentions that an immigation hearing violated the provisions of the Administrative Procedure Act, that a hearing was rendered unfair by adverse publicity and that there was a violation of due process and the ex post facto provisions of the Constitution. In connection with counsel's assertion that the hearing was void because there was not a compliance with the Administrative Procedure Act, we stated in Matter of M---- ( supra), that we believed that it was not the congressional intent that deportation proceedings should be subject to the specific provisions of the Administrative Procedure Act, but rather that the procedural requirements laid down in section 242 (b) of the Immigration and Nationality Act were considered by Congress to be within the pattern of the Administrative Procedure Act and to meet the standards of that act.
In arguing that the proceedings violated due process and the ex post facto and bill of attainder provisions of the Constitution, counsel assert that, at the time of the respondent's conviction in 1926, there was no provision of law which rendered such conviction or the imprisonment imposed a ground for deportation. We agree that until the effective date of the Immigration and Nationality Act, there was an absence of any statutory provision under which the respondent could have been deported. However, in Matter of M---- ( supra), where there was a specific statutory provision in 1940 that no alien should be deportable by reason of the 1940 amendment for an act committed prior thereto, we concluded that the alien was deportable under the Immigration and Nationality Act. On the basis of that decision and on the authority of Mahler v. Eby, 264 U.S. 32 (1924), we must dismiss counsel's objection concerning the retroactive effect of the statute. Insofar as concerns counsel's argument that the proceeding violates article I, section 9 of the United States Constitution which provides that no bill of attainder or ex post facto law shall be passed, the Supreme Court in Harisiades v. Shaughnessy, 342 U.S. 580 (1952), specifically held that the inhibition against the passage of an ex post facto law by Congress applies only to criminal laws and not to a deportation act. Similarly, we reject the argument that the bill of attainder provision has any application to a deportation proceeding. In United States ex rel. Marcello v. Ahrens, 113 F. Supp. 22 (E.D. La., 1953), the court specifically upheld the Government's position that the alien was deportable under section 241 (a) (11) of the Immigration and Nationality Act despite the contentions that the statutory provision was retroactive and violated the due process and ex post facto provisions of the Constitution.
We turn next to counsel's contention that the special inquiry officer refused to consider argument or permit a brief to be filed prior to his decision and that, for this reason, the hearing was unfair. Counsel refer specifically to a statement appearing on page 13 of the record, at which time an objection had been made by counsel which was overruled and the hearing officer then stated, "You are granted an exception which you are privileged to discuss in a brief after an opinion has been rendered." The record shows that there was further discussion of the matter and that counsel was informed that he might be accorded a continuance for the purpose of preparing a defense to the additional charge which had been lodged. Our review of the record satisfies us that the special inquiry officer, prior to his ruling, had considered counsel's argument in support of his objection.
We find no merit in counsel's contention that the special inquiry officer refused to permit the filing of a brief prior to his decision. The record does not show that any request was made for permission to file a brief. Section 242 (b) of the Immigration and Nationality Act provides that proceedings before a special inquiry officer shall be in accordance with such regulations, not inconsistent with that act, as the Attorney General shall prescribe. Certain specific requirements which such regulations were to contain were spelled out in the statute. However, there is no requirement therein that the special inquiry officer shall hear any extended argument or that he shall permit counsel to file a brief prior to the rendering of the decision. Part 242 of 8 C.F.R., which contains the regulations issued pursuant to the statutory authority mentioned, does not confer upon counsel for an alien in a deportation proceeding the right to submit a brief prior to the decision of the special inquiry officer. On the contrary, 8 C.F.R. 6.11 (a) specifically refers to the filing of a brief in support of an appeal to this Board; 8 C.F.R. 242.61 (b) provides that the respondent may submit a brief to the district director for consideration of this Board in support of an appeal within 10 days after an oral decision, and 8 C.F.R. 242.53 (g) provides that counsel for an alien shall be permitted to state his objections succinctly and that they shall be entered on the record. We find, therefore, that the procedure followed by the special inquiry officer concerning this matter was entirely in accordance with the regulations mentioned.
It is true, of course, that an alien, in deportation proceedings, is entitled to a due process hearing. However, counsel's argument concerning an asserted unfairness in the hearing, because the special inquiry officer indicated that a brief might be submitted after his decision had been rendered, is not supported by Morgan v. United States, 298 U.S. 468, 480-481 (1936). A statement in the Court's opinion was quoted to the effect that a "hearing" means the hearing of evidence and argument. The decision in the Morgan case was that the hearing, which was required as a prerequisite to the making of a rate order by the Secretary of Agriculture, had not been accorded where the Secretary, by whom the order was signed, did not personally hear or read any of the evidence presented at the hearing, or hear and consider the oral arguments which had been made, or read or consider the briefs which had been submitted. As a matter of fact, at page 478 the Supreme Court made the following statement:
Again, while it would have been good practice to have the examiner prepare a report and submit it to the Secretary and the parties, and to permit exceptions and arguments addressed to the points thus presented * * * we cannot say that that particular type of procedure was essential to the validity of the hearing.
Counsel also argue that under section 241 (a) (11) of the Immigration and Nationality Act, an alien is deportable only for conduct subsequent to his last entry. We are not impressed with counsel's argument concerning this matter. The language of section 241 (a) which is pertinent in this case is as follows:
Any alien * * * shall * * * 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 * * * sale * * * of * * * heroin * * *.
Section 241 (a) (11) sets forth three classes of persons who are subject to deportation. The phrase "is, or hereafter at any time after entry has been," relates solely to narcotic drug addicts. The next claese relates to the charge stated in the warrant of arrest in the respondent's case which is not at issue in this proceeding. The third clause contains the phrase "who has been convicted." There is no requirement that the conviction must have occurred after entry. Since the respondent is an alien who has been convicted of a violation of law governing or controlling the sale of heroin, it is entirely immaterial whether the conviction occurred prior to or subsequent to his last entry. If there were any materiality in the question of whether the conviction was subsequent to entry, there appears to be no reason why reliance could not be placed on the respondent's first entry into the United States in view of the definition in section 101 (a) (13) which is to the effect that the term "entry" means any coming of an alien into the United States from a foreign port or place. Accordingly, we find counsel's position concerning this matter untenable.
The remaining question relates to counsel's contention that the respondent did not receive a fair hearing on the issue of discretionary relief and that he is entitled to such relief upon the basis of the record. The respondent applied for suspension of deportation under section 244 (a) of the Immigration and Nationality Act. The only paragraph of that section under which he would be eligible is paragraph (5). While counsel appear to be of the opinion that the respondent's last entry is controlling, we do not consider that the respondent is precluded from applying for suspension of deportation because of the language therein which refers to an act committed or status acquired subsequent to entry since his conviction in 1926 was subsequent to his original entry in 1920. Our review of the record satisfies us that the respondent received a fair hearing on the issue of discretionary relief. At the hearing on March 4, 1953, counsel stated that the respondent desired to apply for suspension of deportation but that some of the evidence in support of the application was not yet available and the hearing was adjourned. At the continued hearing on May 20, 1953, counsel was given ample opportunity to present evidence in support of the application and statements on behalf of the petitioner were presented and witnesses examined at that time. The hearing was closed on May 20, 1953, but upon counsel's motion to reopen for the testimony of the respondent's wife, the special inquiry officer granted the motion and a further hearing was had on June 29, 1953. After careful review of the record, we find no merit in counsel's contention that there was any unfairness in the hearing on the issue of discretionary relief.
There is attached to the record as part of exhibit 12 what purports to be a transcript of proceedings in the case of the people of the State of New York against J---- R---- P----. This transcript indicates that the defendant was indicted in June 1942 for murder in the first degree in connection with the shooting and killing of one M---- D----. The court, in directing a verdict of not guilty, stated that he was personally convinced beyond any shadow of a doubt that the defendant was the person who had shot and killed the said M---- D---- and that he was of the opinion that the defendant was the "trigger man" for Murder, Inc. The transcript of testimony is not certified or authenticated in any manner and since the respondent was acquitted, we will disregard this evidence as well as the comments made by the judge who presided at the trial. It is clear from exhibit 6, which is a report from the Federal Bureau of Investigation, that the respondent was apprehended by the State police at Wyoming, Pa., on October 14, 1949; that he was turned over to the New York City Police Department; and that on April 13, 1950, the charge of murder in the first degree was dismissed.
Counsel contend that the respondent's deportation would result in exceptional and extremely unusual hardship to him and to his native born citizen wife. They were married in 1931. According to the testimony of the respondent and his wife, he left their home in Brooklyn in 1940, stating that he was going to see a cousin in another city with a view of entering a new business. He never attempted to communicate with her and never contributed to her support and she never heard from him until 1949 when he was arrested in connection with the murder charge. She did not notify the police concerning his disappearance. He claims that in 1940 he was wounded by an unknown assailant but he did not report this to the police nor did he receive medical treatment at that time. The respondent claims that he was unemployed from 1940 until 1950 and that he did not file a United States income tax return until 1950. The record shows that the respondent did not register under the Alien Registration Act in 1940 as required by law; that he did not register as an alien of enemy nationality in 1942; and that he never registered under the Selective Training and Service Act of 1940 although he was of an age required to register in 1942. He did not register under the Alien Registration Act until about 1951. His only explanation for failure to comply with these various requirements was that he was sick at the time.
Under section 244 (a) (5), the respondent is required to prove physical presence and good moral character during the 10 years preceding his application for suspension of deportation. 8 C.F.R. 242.54 (d) specifically provides that the burden of establishing that the respondent meets the statutory requirements for discretionary relief shall be upon the respondent. Since the respondent's application for suspension of deportation was executed on May 20, 1953, he is required to prove physical presence and good moral character from May 20, 1943, until at least May 20, 1953. There is almost a complete absence of any proof of physical presence or good moral character during the period from 1943 to 1949. We hold, therefore, that the respondent has failed to establish that he meets the statutory requirements for suspension of deportation.
Section 244 (a) specifically provides that "the Attorney General may, in his discretion, suspend deportation * * *." Since the statute makes it discretionary with the Attorney General whether or not suspension of deportation shall be granted, no alien can claim this relief as a matter of right. United States ex rel. Weddeke v. Watkins, 166 F. (2d) 369 (C.A.2), cert. den., 333 U.S. 876. The respondent's failure to comply with the Alien Registration Act for approximately 11 years, his failure to register as an alien of enemy nationality and his failure to register under the Selective Training and Service Act of 1940, as well as his failure to contribute to the support of his wife during the period from 1940 to 1950, are all matters which in our opinion amply justify a refusal of the discretionary authority to suspend deportation. Accordingly, we agree with the special inquiry officer that suspension of deportation and voluntary departure should not be authorized in this case and the respondent's appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.