Respondents Brief — Costanzo v. Tillinghast

CHARLES ELi

FILE COPY

No. 110

Inthe Supreme Court of the United States

OcToBER TERM, 1932

ALBERTO CosTANzO, PETITIONER

v.

Anna C. M. Tiuirneuast, Unitep States Com-

MISSIONER OF IMMIGRATION

ON WRIT OF CERTIORARI TO THE UNITED STATES

CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT

REINS TIRERONUNG soon od Succ san cn cee seuousonssuen

OE tie coin ini sem rein ainrceremietn cu ainniabiie bungee iat

mney Gk MEMUIIBNG ois es os in a dee cccnc keene

Argument:

I. The order of deportation was valid, although no steps

were taken to expel petitioner within five years of his

entry into this country. -_-_-.........-.-2. 2.22.2

II. The question whether there was evidence to sustain the

administrative finding is not properly before the

Court. In any event, the finding is supported by suffi-

cient evidence, and should not be disturbed_________

SINR cin dre in alin eSp-dn aneies s niniinthhene ap MOR abIS Wi) Sorc alias aie ctl

CITATIONS

Brewster v. Gage, 280 U. 8. 827__.......--..-.--------.-

Bugajewitz v. Adams, 228 U. 8. 585...._.....-_-.-_-____-

Caranica v. Nagle, 23 F. (2d) 545, certiorari denied, 277

Cardonnel, Ex parte, 197 Fed. 774___.......-.---.__--__--

Chomel v. United States, 192 Fed. 117, certiorari denied,

Dickman v. Williams, 183 Fed. 904._.___-_.....------.--

Fawcus Machine Co. v. United States, 282 U. 8. 375 _..__-

Fong Yue Ting v. United States, 149 U. 8. 698__...______-

Gambroulis v. Nash, 12 F. (2d) 49.-.___...-.-----_____-

Gin Kato, Ex parte, 270 Fed. 348__........--.-.-.------

Grkic v. United States, 3 F. (2d) 276._.-_.-----.----_---

Hughes vy. Tropello, 296 Fed. 306. ..............--------

Lauria v. United States, 271 Fed. 261, certiorari denied,

Low Wah Suey v. Backus, 225 U. 8. 460.__.........-....

McCaughn v. Hershey Chocolate Co., 283 U. 8. passe Pan castea eas

146808—82—1 wm

: a]

Oy enh ae ee

18

22

Cases—Continued. Page

McLeod v. Nagle, 48 F. (2d) 189__..............-------- 16, 17

Millard v. Tuttie, 46 F. (2d) 342_..........--...-.------ 17

Morrell v. Baker, 270 Fed. 577, appeal dismissed, 258 U. S.

WOR ra ables puma w nests seskuuckokisenewcabo

Pillisz v. Smith, 46 F. CRE) WOO sss cnn 17

Psimoules, Ex parte, 222 Fed. 118, appeal dismissed, 224

WON As os Sones Hake ap ubabuckeak ueenneian 20

Ranieri v. Smith, 49 F. (2d) 537, certiorari denied, 284 U. 8.

eee ee eee eee a Ee 17

Shladzien v. Warden of Eastern District Penitentiary, 45 F

Cy Besos oti G eck haecesatcnscucubiceuecd 17

Siniscalchi v. Thomas, 195 Fed. 701__......-....-.-.---- 9

Skeffington v. Katzeff, 277 Fed. 129_._............-.---- 8

Tillinghast v. Di Pierro, 54 F. (2d) 459, certiorari denied, ‘

WE AIG Ie POSS he cnet hau ue ee chide makSewewcu 17

Tat 9. TON, Pe OB ABE ie ne ee ccd 19

Tzarkis v. Ebey, 3 F. (2d) 277_.-...--.----------------- 17

Vajtauer v. Commissioner of Immigration, 273 vU. 8. 103___ 19, 21

Weedin v. Yamada, 4 F. (2d) 455__.......-.2...-_-.---- 17

Weinbrand v. Prentis, 4 F. (2d) 778__...-.---.---------- 17, 21

Young, Ex parte, 211 Fed. 370__.._._.._..-.-.-.-------- 21

Zakonaite v. Wolf, 226 U. S. 272___...._---.-.---------- 19

Statutes:

Immigration Act of February 20, 1907, c. 1134, Sec. 3,

ee UNE. EO, DON a ks ike. hacen tana eaendseceuss 9

Act of March 26, 1910, c. 128, Sec. 2, 36 Stat. 263, 264___- 9

Immigration Act of February 5, 1917, c. 29, Sec. 19, 39 Stat.

874, 889-890 (U.S. C., Title 8, Sec. 155)_.-.--.-.------ 2

General Laws of Rhode Island, 1923, c. 399, Sec. 6. _---- 21

Miscellaneous:

Senate Report No. 352 (64th Cong., Ist sess.).....------- 11

House Report No. 95 (64th Cong., Ist sess.)_........---- 12

House Report No. 1292 (68th Cong., 2d sess.) ......._---- 12

House Report No. 1348 (69th Cong., Ist sess.) __...__---- 12

Rules of the Bureau of Immigration, May 1, 1917, Rule 22:

BOE ERY, AGE oka ca cnde te nee cca medateckannes 12

2d ed., November, 1917_.-.--..---------.--------- 14

Sa Oe. WENO FOTO. acs oe ek 14

4th ed., February, 1920__.-...-.-.----.----------- 14

5th ed., December, 1920....-.-.---..-..----.-.---- 14

6th ed., September, 1921_.__.....--.---..-----.--- 14

Tel Bd., AUBUNG 1088. oo ooo nc euc ce kk 14

Immigration Rules of February 1, 1924...........------ 14

Inthe Supreme Court of the United States

Ocroser TrerRM, 1932

No. 110

ALBERTO COSTANZO, PETITIONER

v.

Anna C. M. Titirncuast, Unirep States Com-

missioner of Immigration

ON WRIT OF CERTIORARI TO THE UNITED STATES CIR-

CUIT COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The order of the District Court appears at R. 5.

The majority and concurring opinions of the Circuit

Court. of Appeals (R. 35, 39) are reported in 56 F.

* (2d) 566.

JURISDICTION

The judgment of the Circuit Court of Appeals was

entered on February 25, 1932. (R. 40.) Petition

for certiorari was filed on May 25, 1932, and was

granted on October 10, 1932. (R. 40.) The juris-

diction of this Court rests upon Section 240 (a) of the

Judicial Code as amended by the Act of February 13,

1925.

(1)

2

QUESTIONS PRESENTED

1. Whether under Section 19 of the Immigration

Act of 1917, an alien found managing a house of

prostitution must be taken into custody and deported

within five years after entry, or whether such arrest

and deportation may be effected at any time after

entry.

2. Whether there was sufficient evidence to support

the administrative finding that petitioner was man-

aging a house of prostitution.

STATUTE INVOLVED

Section 19 of the Immigration Act of February 5,

1917, c. 29, 39 Stat. 874, 889-890 (U.S. C., Title 8,

Sec. 155), reads as follows:

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 ex-

cluded by law; any alien who shall have

entered or who shall be found in the United

States in violation of this Act, or in violation

of any other law of the United States; any

alien who at any time after entry shall be

found advocating or teaching the unlawful

destruction of property, or advocating or

teaching anarchy, or the overthrow by force

or violence of the Government of the United

States or of all forms of law, or the assassina-

tion of public officials; any alien who within

five years after entry becomes a public charge

from causes not affirmatively shown to have

arisen subsequent to landing; except as here-

inafter provided, any alien who is hereafter

sentenced to imprisonment for a term of one

3

year or more because of conviction in this

country of a crime involving moral turpitude,

committed within five years after the entry

of the alien to the United States, or who is

hereafter sentenced more than once to such a

term of imprisonment because of conviction

in this country of any crime involving moral

turpitude, committed at any time after entry;

any alien who shall be found an inmate of or

connected with the management of a house of

prostitution or practicing prostitution after

such alien shall have entered the United

States, or who shall receive, share in, or derive

benefit from any part of the earnings of any

prostitute; any alien who manages or is em-

ployed by, in, or in connection with any house

of prostitution or music or dance hall or other

place of amusement or resort habitually fre-

quented by prostitutes, or where prostitutes

gather, or who in any way assists any pros-

titute or protects or promises to protect from

arrest any prostitute; any alien who shall

import or attempt to import any person for

the purpose of prostitution or for any other

immoral purpose; any alien who, after being

excluded and deported or arrested and deported

as a prostitute, or as a procurer, or as having _

been connected with the business of prostitu-

tion or importation for prostitution or other

immoral purposes in any of the ways herein-

before specified, shall return to and enter the

United States; any alien convicted and im-

prisoned for a violation of any of the provisions

of section four hereof; any alien who was con-

victed, or who admits the commission, prior

4

to entry, of a felony or other crime or misde-

meanor involving moral turpitude; at any time

within three years after entry, any alien who

shall have entered the United States by water

at any time or place other than as designated

by immigration officials, or by land at any

place other than one designated as a port of

entry for aliens by the Commissioner General

of Immigration, or at any time not designated

by immigration officials, or who enters without

inspection, shall, upon the warrant of the

Secretary of Labor, be taken into custody and

deported:

Provided, That the marriage to an American

citizen of a female of the sexually immoral

classes the exclusion or deportation of which

is prescribed by this Act shall not invest such

female with United States citizenship if the

marriage of such alien female shall be solem-

nized after her arrest or after the commission of

acts which make her liable to deportation

under this Act: Provided further, That the

provision of this section respecting the depor-

tation of aliens convicted of a crime involving

moral turpitude shall not apply to one who

has been pardoned, nor shall such deportation

be made or directed if the court, or judge

thereof, sentencing such alien for such crime

shall, at the time of imposing judgment or

passing sentence or within thirty days there-

after, due notice having first been given to

representatives of the State, make a recom-

mendation to the Secretary of Labor that

such alien shall not be deported in pursuance

of this Act; nor shall any alien convicted as

5

aforesaid be deported until after the termina-

tion of his imprisonment: Provided further,

That the provisions of this section, with the

exceptions hereinbefore noted, shall be appli-

cable to the classes of aliens therein mentioned

irrespective of the time of their entry into the

United States: Provided further, That the pro-

visions of this section shall also apply to the

cases of aliens who come to the mainland of

the United States from the insular possessions

thereof: Provided further, That any person

who shall be arrested under the provisions of

this section, on the ground that he has entered

or been found in the United States in violation

of any other law thereof which imposes on

such person the burden of proving his right to

enter or remain, and who shall fail to estab-

lish the existence of the right claimed, shall be

deported to the place specified in such other

law. In every case where any person is

ordered deported from the United States under

the provisions of this Act, or of any law or

treaty, the decision of the Secretary of Labor

shall be final.

STATEMENT

Petitioner, a citizen of Italy, who entered this

country about 1905, was arrested on an immigra-

tion warrant dated March 16, 1926, which charged

him with being in the country unlawfully in that,

after entry, he was found managing a house of

prostitution. (R. 1, 3, 10, 27.) It appears from

petitioner’s testimony at the various hearings be-

fore the immigration authorities that he was born

in Italy and came to this country at the age of five.

6

He has never taken any steps to become a citizen.

(R. 8, 12, 13, 18.) In 1916 or 1917 he was con-

victed of stealing a machine, for which he served

six months in jail. (R.14.) In December, 1925, he

was convicted in a State court in Rhode Island, fol-

lowing a plea of “nolo,” of the charge of “harbor-

ing for prostitution,” and was sentenced to three

years in prison, of which sentence he served six-

teen months and fourteen days, when he was paroled.

(R. 6, 8, 14-15, 21, 24-25.) As the result of infor-

mation supplied by the judge who sentenced him,

an investigation, out of which the present charge

grew, was begun by the immigration authorities.

(R. 7-8.)

Although petitioner denied that he was running

a house of prostitution, he admitted that the premises

were leased in his name, and that, while he paid but

$30.00 monthly rent, he subleased the premises for

$15 per week to one Ritchie, who, he maintained,

operated the place as a house of ill fame, and was

sentenced, on account thereof, to two years in

prison. (R. 15, 19, 22.) He also admitted that

on one occasion he took to this place in his car,

a girl whom he had heard was not of good moral

character, and that he knew she was going there for

the purpose of prostitution. (R. 15-16, 20-21.)

She apparently remained there as one of the in-

mates, for three days later, when the place was

raided by the State police, she was still there. (R.

16, 20.) Petitioner was also present at the time the

house was raided. (R. 16, 21.) At least twice a

7

week petitioner was at the place to collect the

“rent’’ and to bring “supplies,” according to agree-

ment between him and Ritchie. (R. 19, 22-23.)

As a result of this testimony the immigration

authorities found that petitioner was managing a

house of prostitution, and on August 26, 1927,

issued a warrant for his deportation. (R. 25-28.)

Petitioner thereupon filed in the United States Dis-

trict Court for Massachusetts a petition for writ of

habeas corpus, which appears to have been based

principally upon the ground that the effect of de-

porting him would be to impose additional punish-

ment for the crime against the State of Rhode Is-

land which he had already expiated, and that de-

portation would consequently constitute cruel and

unusual punishment, in violation of the Eighth

Amendment. (R. 1-3.) A summons was issued

to respondent to show cause why the writ should not

be granted. (R. 4.) After a hearing the court dis-

missed the petition. (R. 5.) On appeal its judgment

was affirmed. (R. 40.) The assignment of errors

shows that petitioner based his appeal to the Circuit

Court of Appeals on only two grounds: 1. The Dis-

trict Court erred in not concluding that deportation

was a cruel and unusual punishment; 2. The District

Court abused its discretion in not granting the peti-

tion for a writ of habeas corpus, ‘‘notwithstanding the

specific wording of the Immigration Act of February

5, 1917.” (R. 34-35.) Neither of these questions was.

raised in the petition for certiorari.

146803—32——-2

8

SUMMARY OF ARGUMENT

The legislative history, the administrative con-

struction, and the judicial analysis of the statute show

that Section 19 of the Immigration Act of 1917 im-

posed no limit upon the time after entry within which

it is permissible to deport an alien found Py a

house of prostitution.

A deportation order is to be upheld, in habeas corpus

proceedings, if there is evidence to support the ad-

ministrative findings upon which the order is based.

In the instant case the officials were clearly justified

in concluding that petitioner was managing a house

of prostitution, and the Court should not again in-

quire into the issue, particularly in view of the fact

that petitioner now seeks to raise the question of the

sufficiency of the evidence for the first time.

ARGUMENT

I

THE ORDER OF DEPORTATION WAS VALID, ALTHOUGH

NO STEPS WERE TAKEN TO EXPEL PETITIONER

WITHIN FIVE YEARS OF HIS ENTRY INTO THIS

COUNTRY

The power to exclude or expel any class of aliens

is an attribute of sovereignty, and hence Congress

may provide for the deportation of undesirable aliens

at.any time after their entry or admission to this coun-

‘try. See Fong Yue Ting v. United States, 149 U.S.

698; Skeffington v. Katzeff, 277 Fed. 129, 181 (C€. C.

A. 1st); Lopez v. Howe, 259 Fed. 401 (C. C. A. 2nd),

appeal dismissed, 254 U.S. 613. The question to be

9

decided in the instant case is whether the Immigra-

tion Act of 1917 imposed any time limitation on the

exercise of that power in the case of aliens found

managing houses of prostitution.

The Immigration Act of February 20, 1907 (c.

1134, Sec. 3, 34 Stat. 898, 899), provided that alien

women or girls might be deported if found in a house

of prostitution, or practicing prostitution, within

three years after entry into this country. The Act

of March 26, 1910 (c. 128, Sec. 2, 36 Stat. 263, 264),

amended the 1907 Act by making such an alien de-

portable at any time after admission to the United

States. See Bugajewitz vy. Adams, 228 U. S. 585;

Ex parte Cardonnel 197 Fed. 774 (N. D. Cal.);

Siniscalchi v. Thomas, 195 Fed. 701 (C. C. A. 6th);

Chomel v. United States, 192 Fed. 117 (C. C. A. 7th),

certiorari denied 223 U. S. 723; Dickman v. Williams,

183 Fed. 904 (S. D. N. Y.), The 1910 amendment

of the Act of 1907, in the same section, contained the

further provision that—

Any alien * * * connected with the

management of a house of prostitution * * *

or who is employed by, in, or in eonnection

with any house of prostitution or music or

dance hall or other place of amusement or

resort habitually frequented by prostitutes, or

where prostitutes gather, or who in any way

assists, protects, or promises to protect from

arrest any prostitute, shall be deemed to be

unlawfully within the United States and shall

be deported * * *,

10

It is clear that under the amendment of the 1907

Act, an alien charged, as is the case here, with being

the manager of a house of prostitution could be

arrested and deported as an undesirable alien at any

time, regardless of the date of his entry or admission

to this country. Section 19 of the Act of 1917

repeated the wora'ng of the 1910 amendment in

substance, so far as it relates to this class of aliens.

In addition, Section 19 defined, either in detail

or by general reference, all the cases in which aliens

might be arrested and deported. In some instances

a definite period of limitation was stated; in others

no limitation was indicated. The section further

provides “that the provisions of this section, with

the exceptions hereinbefore noted, shall be applicable

to the classes of aliens therein mentioned irrespective

of the time of their entry into the United States.”

No exception is noted which is applicable in such

eases as this.

Petitioner contends that where no period of limita-

tion was stated, it was the legislative intent to bar

deportation after five years. The section commences

with the clause “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;

* * *” This clause is followed by many others,

connected by semicolons. Some of them contain

time limitations, others do not. Among the clauses

that follow is the one authorizing deportation of an

alien who, like petitioner, has been found managing a

house of prostitution. This clause contains no time

1}

_ limitation, but petitioner maintains that the opening

phrase of the section, “That at any time within five

years * * *” must be read into each following

provision, instead of being limited to the clause it .

directly modifies. —

The history of this legislation shows the Congres-

sional intent not to place any time restriction upon

the deportability of aliens adjudged to be undesirable

on grounds of sexual immorality or conduct inimical

to the public welfare in this respect. Not only is it

to be inferred that this was the will of Congress in

view of the amendment and extension of the 1907 Act,

as noted above, but it is confirmed by committee

reports that were before Congress at the time of the

1917 legislation. Senate Report No. 352 to accom-

pany H. R. 10384 (64th Cong., Ist Sess.), states

with reference to Section 19 (pp. i4—15):

* * * To the fullest extent practicable

this section has been made to include all

of the classes subject to deportation after

having entered the country; this is accom-

plished in two ways, first, by enumerating

the classes and indicating the period, where

any is set, within Which deportation must

be effected, and, sécond, by incorporating

in this section, in much plainer language,

the provisions of sections 20 and 21 of the

existing law. * * *

With respect to each class, wherever a

limitation of time is placed upon deportation

it has been changed to five years, with the

exception of those who merely enter sur-

reptitiously or without inspection * * *,

12

the limitation of existing law being three

years. Prostitutes, procurers, and other mem-

bers of the classes inhibited on grounds of

sexual immorality have been subject to deporta-.

tion without time limitation since the passage

of the act of March 26, 1910 (36 Stat. 263);

* * * This policy is continued, and certain

other classes equally undesirable have been

included within its scope. * * *' (Italics.

ours.)

See also House Report No. 95, to accompany H. R..

10384 (64th Cong., Ist sess.), p. 1.

The contemporaneous administrative construction

of Section 19 gave full effect to the apparent intent of

Congress. Rule 22 of the Rules of the Bureau of

Immigration of May 1, 1917 (1st ed., May, 1917),

stated that all cases in which aliens might be deported

under Section 19 fell into divisions enumerated in that.

rule, and continued as follows:

With respect to each of these divisions the law

is retrospective or not and the time within

‘It may be noted that in the 68th and 69th Congresses

proposals to change the Immigration Laws were introduced

in and passed by the House of Representatives. Both bills

were apparently designed to render more stringent the then

existing legislation. House Report No. 1292, to accompany

H. R. 11796 (68th Cong., 2nd Sess.), pp. 6, 9, indicates the

belief of the Committee on Immigration and Naturalization

that aliens connected with the management of houses of

prostitution might be deported without any time limitation,

and that therefore change in Section 19 of the 1917 Act was

not required in this respect. House Report No. 1348, to

accompany H. R. 12444 (69th Cong., Ist Sess.), dealt with

a bill similar to that discussed at the preceding session, and

indicated the same Congressional belief that no change was

needed to make possible the deportation of aliens of this

class at any time after entry.

13

which deportation proceedings may be insti-

‘tuted is limited or not, as indicated below.

(a) Any alien who has entered the United

States prior to May 1, 1917, and who at the

time of entry was a member of any one of the

classes excluded under any provision of the

Immigration Act of February 20, 1907; limi-

tation five years; retrospective.

(b) Any alien who has entered the United

States subsequent to April 30, 1917, and who

at the time of entry was a member of any one

of the classes excluded by Section 3, or the last

proviso to Section 18, or the last proviso to

Section 23, of the Act of February 5, 1917;

limitation five years; not retrospective.

* * * * *

(k) Any alien who shall be found an inmate

of or connected with the management of a

house of prostitution; no limitation; retro-

spective.

(t) Any alien who shall be found practicing

prostitution; no limitation; retrospective.

(m) Any alien who shall receive, share in,

or derive benefit from any part of the earnings

of any prostitute; no limitation; retrospective.

(n) Any alien who manages or is employed

by, in, or in connection with any house of prosti-

tution or music or dance hall or other place of

amusement or resort habitually frequented by

prostitutes, or where prostitutes gather; no limita-

tion; retrospective.

(0) Any alien who in any way assists any

prostitute or protects or promises to protect

from arrest any prostitute; no limitation ; retro-

spective.

14

(p) Any alien who shall import or attempt

to import any person for the purpose of pros-

titution or other immoral purpose; no limita-

tion; retrospective. * * * (Italics ours.)

Rule 22 was carried forward, in so far as now

material, into each succeeding amendment of the

Rules of May 1, 1917: 2nd ed. November, 1917;

3rd ed. March, 1919; 4th ed. February, 1920; 5th ed.

December, 1920; 6th ed. September, 1921; 7th ed.

August, 1922. See also Rules of the Bureau of

Immigration of February 1, 1924, p. 31; Rules of the

Bureau of Immigration July 1, 1925, p. 63. The

consistent construction of the section by the officers

charged with its enforcement, and the failure of

Congress to repeal or amend the section in the face of

this interpretation, despite frequent legislation on

other matters arising under the immigration laws,

_ lend substance to the presumption that the admin-

istrative construction is correct and hence should not

be disturbed. See McCaughan v. Hershey Chocolate

Co., 283 U.S. 488, 492; Faweus Machine Co. v. United

States, 282 U. 8. 375, 378; Brewster v. Gage, 280 U. S.

327, 336. |

Aside from these extrinsic aids to construction, the

grammatical structure of Section 19 plainly shows

that it permits the deportation, without any time

limitation, of one deemed to be undesirable because

involved in the management of a house of prostitu-

tion. Section 19 provides:

That at any time within five years after

entry, any alien who at the time of entry was

15

a member of one or more of the classes ex-

cluded by law; * * * shall, upon the

warrant of the Secretary of Labor, be taken

into custody and deported. * * *

Between the first clause of this sentence and its

conclusion appear every class of aliens subject to

deportation. Thus, the section provides that ‘any

alien who at any time after entry shall be found

advocating or teaching the unlawful destruction of

property * * *’ may be expelled from the

country. Another clause states that “at any time

within three years after entry, any alien who shall

have entered the United States by water at any time

or place other than as designated by immigration

officials’ shall be taken into custody and deported.

It is petitioner’s contention that the opening phrase

of this lengthy sentence must be read into each

succeeding clause, so that the limitation of “within

five years after entry”’ shall apply to every instance

where no definite restriction was stated. This con-

tention disregards the customary rules of grammar

and punctuation. The section does no more than

compile cases in which the Secretary of Labor has

been given authority to deport aliens, leaving the

time for deportation unlimited except in a few specific

cases.

The clauses in the sentence which comprise the

section are of coordinate value. Their combination

in one sentence is to be explained on the ground that

they are related in thought and purpose, rather than

on the ground that they could not stand grammati-

16

cally independent of each other. As was said in Grkie

v. United States, 3 F. (2d) 276 (C. C. A. 7th): “Ip

punctuation, the semicolon is used to separate a com-

plete thought in one clause from other related matter

in another clause of the sentence. In Section 19 the

semicolon has been used to separate variows classes

subject to deportation. * * *” See also McLeod

v. Nagle, 48 F. (2d) 189 (C. C. A. 9th).

The conclusion that the five-year limitation on the

deportability of an alien ‘who at the time of entry

was a member of one or more of the classes excluded

by law” does not apply to all the other classes of

aliens mentioned in the same section, is supported by

the third proviso, which follows all of the clauses,

reading:

Provided further, That the provisions of this

section, with the exceptions hereinbefore noted,

shall be applicable to the classes of aliens

therein mentioned, irrespective of the time of

their entry into the United States. (Italics

ours.)

This proviso, as observed by the Circuit Court of

Appeals for the Ninth Circuit in McLeod v. Nagle,

supra, p. 191, “seems clearly to indicate, in words

as unambiguous as Congress could have used, that,

in each subdivision of Section 19 in which no time

limit is specifically provided, no time limit is in-

tended.”’

17

With one exception, all of the authoritative de-

cisions under Section 19 support the construction

for which we contend. See Tillinghast v. Di Pierro,

54 F. (2d) 459 (C. C. A. 1st), certiorari denied because

petition was not filed in time, 286 U. 8. 560; Ranieri v.

Smith, 49 F. (2d) 537 (C. C. A. 7th), certiorari denied,

284 U. 8.657; McLeod v. Nagle, supra; Pillisz v. Smith,

46 F, (2d) 769 (C. C. A. 7th); Millard v. Tuttle, 46 F.

(2d) 342 (E. D. La.); Shladzien vy. Warden of Eastern

District Penitentiary, 45 F. (2d) 204 (E. D. Pa.); De

Fillipo v. Tillinghast, 31 F. (2d) 384, affirmed, 31 F.

(2d) 1009 (C. C. A. Ist); Weinbrand v. Prentis, 4 F. (2d)

778 (C. C. A. 6th); Weedin v. Yamada, 4 F. (2d) 455

(C, C. A. 9th); Grkic v. United States, supra; Tzarkis

v. Ebey, 3 F. (2d) 277 (C. C. A. 7th); Lauria v. United

States, 271 Fed. 261, 263 (C. C. A. 2nd), certiorari de-

nied, 257 U. 8. 635; Ex parte Gin Kato, 270 Fed. 343

(W. D. Wash.); Guiney v. Bonham, 261 Fed. 582

(C. C. A. 9th).

We have found only one decision of a Circuit Court

of Appeals holding that Section 19 of the 1917 Act

provides generally that the deportation of aliens there-

under can not take place more than five years after

entry into this country. In Hughes v. Tropello, 296

Fed. 306 (C. C. A. 8rd), the court concluded that

action against an alien must be concluded within that

period to warrant his expulsion. In that case, it may

be noted, the question argued before the court was

18

not whether the five-year limitation in the first clause

applied to all clauses of Section 19, but whether pro-

ceedings against the offending alien were required to

be completed, or merely instituted, within five years

after his entry or admission. The Government ap-

parently did not dispute that the five-year period ap-

plied. The Tropello case has been ignored or ex-

pressly disapproved by every Circuit Court of Appeals

which has had occasion to consider the matter, and

seems unsupported by any authority, judicial, legis-

lative, or administrative.

II

THE QUESTION WHETHER THERE WAS EVIDENCE TO

SUSTAIN THE ADMINISTRATIVE FINDING IS NOT

PROPERLY BEFORE THE COURT. IN ANY EVENT,

THE FINDING IS SUPPORTED BY SUFFICIENT EVI-

DENCE, AN” SHOULD NOT BE DISTURBED

The contention that there was insufficient evidence

to warrant the immigration authorities in finding

that petitioner was managing a house of prostitution,

was not raised in the District Court in the petition

for writ of habeas corpus or in the assignment of errors

in the court below, nor was it passed upon by that

court. Accordingly, we submit that the question is

not now properly before this Court and that its con-

sideration is not warranted by the circumstances of

the case.

Even if the question is treated as open upon this

record, however, it is clear that the evidence was

amply sufficient to support the order of deportation.

In habeas corpus proceedings an order of deportation

19

is to be upheld if there is any evidence to support it,

and if there is no error so shocking as to convince a

court that the hearings or trial have been essentially

unfair. See Vajtauer v. Commissioner of Immigra-

tion, 273 U. 8. 103, 106; Tisi v. Tod, 264 U. 8. 131.

In Low Wah Suey v. Backus, 225 U. 8. 460, 468, the

Court said:

* * * hearings before executive officers

may be made conclusive when fairly con-

ducted, In order to successfully attack by

judicial proceedings the conclusions and orders

made upon such hearings it must be shown

that the proceedings were manifestly unfair,

that the action of the executive officers was

such as to prevent a fair investigation or that

there was a manifest abuse of the discretion

committed to them by the statute * * *,

See also Zakonaite v. Wolf, 226 U. S. 272, 275.

Judged by these general tests, the hearings before

the immigration officials were free from any defect.

The alien was afforded an opportunity to inspect the

warrant of arrest and the evidence upon which it was

issued, which privilege was accepted. (R. 11.) He

was informed of his right to be represented by counsel

(R. 12), and he employed an attorney, who was

present at the hearings before the Inspector of Im-

migration. The privilege of cross-examination was

freely extended.

The charge upon which the order of deportation

issued was that the alien had been found managing a

house of prostitution. In support of the administra-

20

tive finding there was evidence that the alien had

transported in his automobile to the house of prosti-

tution a girl whom he had heard was not of good

moral character, and that he knew she was going

there for the purpose of prostitution. (R. 15-16,

20-21.) The record also shows that he had agreed

with Ritchie, who occupied the house, that he would

bring to it twice weekly such supplies as were needed

by the occupants. (R. 19, 23.) The alien testified

that he rented the house in question for $30 a month

and sublet it to Ritchie for $15a week. (R. 19, 22.)

Prior to this time he testified that he had been em-

ployed as a laborer in a cotton mill. (R. 21.)

From all the circumstances, it seems plain that the

officials were justified in believing that the alien was

actively concerned in the management of this house

of illfame. Thus the officials were warranted in con-

cluding that the alleged arrangement with Ritchie was

merely a subterfuge resorted to by the alien to con-

ceal his actual interest in the business of prostitution

(see Caranica v. Nagle, 23 F. (2d) 545 (C. C. A. 9th),

certiorari denied, 277 U.S. 589), and the fact that the

defendant transported to the place a woman whom he

knew to be a prostitute, of whose purpose in going

there he was aware, together with the circumstance

that he regularly carried to the establishment such

supplies as were needed, might well indicate that he

was intimately connected with its management.

See Ez parte Psimoules, 222 Fed. 118 (8S. D. Cal.),

appeal dismissed, 224 Fed. 1022 (C. C. A. 9th).

21

. The fact that petitioner was tried in Rhode Island

and convicted in the State Court for the offense of

“harboring for prostitution” and not for “managing

a house of prostitution,” is, of course, immaterial.’

It is established that a previous conviction in a

criminal proceeding is not a requisite to a valid

warrant for deportation on a charge that an alien has

been found managing a house of prostitution. Gam-

broulis v. Nash, 12 F. (2d) 49 (C. C. A. 8th). And,

indeed, acquittal by a jury of the charges that are

made the basis of the order of deportation does not

invalidate the order or show that it was not sup-

ported by sufficient evidence. See Weinbrand v.

Prentis, 4 F. (2d) 778 (C. C. A. 6th); Ex parte Young,

211 Fed. 370, 373 (W. D. Wash.).

In the light of all the circumstances and the

testimony at the hearings, we submit that there was

evidence to sustain the administrative determination,

and accordingly we urge that the finding made upon

the basis of that evidence is beyond attack in such a

proceeding as this. Vajtawer v. Commissioner of Im-

? The record does not disclose the particular section of the

State statutes which petitioner was convicted of violating.

Section 6, Chap. 399, General Laws of Rhode Island, 1923,

makes it an offense punishable by imprisonment for not more

than five years “for any person to secure a female for a house

of ill-fame, or to procure for a female a place as inmate of a

house of ill-fame, or by any promise * * * to cause, in-

duce, persuade or er *ourage a female to * * * become

an inmate of a house of ill-fame, or enter a place in which

prostitution is encouraged or allowed, or remain therein as

such inmate * * *,”

22

migration, supra; Caranica v. Nagle, supra; Morrell v.

Baker, 270 Fed. 577 (C. C. A. 2d), appeal dismissed,

258 U.S. 606.

CONCLUSION

The decision of the court below is correct and

should be affirmed.

Respectfully submitted.

/ Tuomas D. THacuer,

Solicitor General.

iw” Nucenr Donps,

/ Assistant Attorney General.

Wuitney Norra Seymour,

Speciql Assistant to the Attorney General.

Harry 8. Rincety,

(WALTER GELLHORN,

/ Attorneys.

Apert E. Reitz“,

Assistant Solicitor, Department of Labor,

Of Counsel.

NoOveEMBER, 1932. -

©, &. GOVERERENT PRINTING OFFICE: i952

Nel