Petition for a Writ of Certiorari — Schoeps v. Carmichael

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

No. 494

JACOB SCHOEPS,

Petitioner,

vs.

WILLIAM A. CARMICHAEL, District Director, Immt-

GRATION AND NATURALIZATION Service, DEPARTMENT OF

Justice, Los AncELEs, Cauirornia, District No. 16

PETITION FOR WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT.

Davin C. Marcus,

A. L. Wiatn,

Counsel for Petitioner.

—

INDEX

Sussect Lypex

a")

co couse ne’

Petition for writ of certiorari ............... aw

NS lg a a5 cis aiken ce wh nek Cones

Ng Nn a ty wears

I ot) a Raw nee ea

Statement of the case... Ne Are

Reasons for granting the a AS td bas rt

EE Fle aed tee Gs Lede s cama eens

I. The Act purportedly admitted by peti-

tioner, not being a crime of any kind

at the time of commission, he cannot

be deported for ‘‘admitting’’ a non-

| EA ee eng eran 11

II. It is contrary to all principles of fair-

ness and due process to permit de-

portation on the mere admission only

of a crime without there being any

independent proof of its commission

or truth of the facts admitted... _.. 13

III. The admission clause of section 19(a)

does not apply unless the crime is com-

mitteed outside the United States... 16

IV. The term ‘‘entry’’ in section 19(a) does

not mean a ‘‘re-entry’’ of an alien

lawfully admitted to this country for

permanent residence who has momen-

tarily stepped across our borders al-

ways intending to return and actually

returning without giving up his resi-

dency or the permanency thereof... 20

_

=P)

TaBLeE oF Cases CITED

Andrews v. Chesapeake and Potomac Telephone Co.,

NN i ace nwo yin koa se kee 21

Bridges v. Wixon, 326 U.S. 135 ................. 14, 15

Carmichael v. Delaney, 170 Fed. (2d) 239........ 10

Clausen, United States ex rel., v. Day, 279 U.S. 398... 20

Cole v. Arkansas, 333 U.S. 196 POE eee EET 13

Delaney, Ex parte, 72 Supp. 312................... 10

Delgadillo v. Carmichael, 332 U.S. 388........ 9, 14, 20, 22

Freislenger, U. S. ex rel., v. Smith, 41 Fed. (2d) 707 12

—5770

il INDEX

Page

Gegiow v. United States, 239 U.S.3................ ll

Goff v. United States, 257 Fed. 294............ ‘o 14

Guarino, U.S. ex rel., v. Uhl, 107 Fed. (2d) 399... ... 11

Guest, Ex parte, 287 Fed. 884................. Ae 11

Gulotta v. United States, 113 Fed. (2d) 683... .. 14

Isaacs v. United States, 159 U. 8. 487........... ——

Jackson v. Zurbrich, 59 Fed. (2d) 937. Wites ae erate 10

Lapina v. Williams, 232 U.S. 78............... *" 20

Bewee @. Pee’, Bee U. BG. Bh... ... eens 20

Martin v. United States, 264 Fed. 950..............

Mongiovi, U. S. ex rel., v. Karnuth, 300 Fed. (2d)

Re ee me ee Cw wen 12

Ng Fung Ho v. White, 259 U.S. 276................ 14

Noftzger v. United States, 200 Fed. 494............ 14

Ono v. Carr, 56 F. (2d) 772 1a pt gE Neale la 18

Palermo, U.S. ex rel. v. Smith, 17 Fed. (2d) 534... 8,19

People v. Krauss, 192 App. Div. 403............ he: 14

People v. Roach, 215 N. Y. 592................ 14

Pon Wing Quong v. United States, 160 Fed. (2d)

eo. ok is peewee Ene hase eho ae kee ks 8 14

Rasmussen v. Robinson, 163 F. (2d) 732.... __.. 8,19

Shubata v. Carr, 35 Fed. (2d) 636............. 8, 16, 17

Tabor v. United States, 152 Fed. (2d) 254.......... 14

United Staies v. Hughes, 116 F. (2d) 613.......... 8, 19

United States v. Mayfield, 59 Fed.118.......... 14

Volpe, U. S. ex rel., v. Smith, 289 U.S.422......_... 6

Ward v. De Barros, 75 Fed. (2d) 34.............. 9

Weedin v. Hempel, 28 Fed. (2d) 603.............. 8, 19

Wong Yee v. Weedin, 33 Fed. (2d) 377............. 8, 16

Zaffarano, U.S. ex rel., v. Corsi, 63 Fed. (2d) 757... 11,12

Statutes CiTEep

Immigration Act of February 5, 1917, Section 19(a),

39 Stat. 889 (United States Code, Title 8, See.

ERIE eee rene yoy yee oe heen” EEN 2

New York Code of Criminal Procedure, section 395 14

New York Laws of 1927, Chapter 383.... ..... as 12

New York Laws of 1933, Chapter 424.......... 12

New York Penal Code of 1923, Article 44 (Gilbert’s

Annotated Criminal Code and Penal Law, 1923) . 12

New York Penal Code, Section 483-a........... 5

28 USC 1254(1) and 2101(c).................. 2

United States Constitution, Vth Amendment. __. 2

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

No. 494

JACOB SCHOEPS,

Petitioner,

vs.

WILLIAM A. CARMICHAEL, District Director, Iumt-

GRATION AND NATURALIZATION Service, DEPARTMENT OF

Justice, Los ANGELES, CALIFORNIA, District No. 16

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT.

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Ninth Cireuit entered on September 23, 1949 (R. 83)?

affirming a judgment of the United States District Court

for the Southern District of California.

1 References to the printed record will be thus: (R.2). The original

record of the deportation hearing and the order of the Chairman of the

Board of Immigration Appeals, Department of Justice was attached as

Exhibit B to respondent’s return in the trial court (R. 21) and introduced

as a joint exhibit A (R. 24). It was considered as an exhibit by the

courts below and will be referred to herein thus: R. I.) Designation of

the specific documents in R. I. will be made explicit.

“aT

Jurisdiction

The judgment of the United States Court of Appeals

for the Ninth Circuit was entered September 23, 1949 (R.

82). The issues as to which petitioner seeks this Court’s

review involve construction of Section 19(a) of the Im-

migration Act of February 5, 1917, 39 Stat. 889 (United

States Code, Title 8, Sec. 155(a); the entire lack of any

substantial evidence in the record upon which to predicate

an order of deportation; and the denial of Petitioner’s

constitutional rights to due process under the Vth Amend-

ment to the United States Constitution. These issues were

decided adversely to the petitioner in both the trial (R.

44, 45) and lower (R. 68 et seq.) courts.

The jurisdiction of this Court is invoked under 28 U.S. C.

1254 (1) and 2101 (ce).

Statute Involved

The relevant provision of Section 19(a) of the Immi-

gration Act of February 5, 1917, 39 Stat. 889, 8 U. S. C.

155 (a) is as follows:

‘co * *

except as hereinafter provided, any

alien who, after May 1, 1917, is sentenced to im-

prisonment for a term of one 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 sentenced more than once to such a term of im-

prisonment because of conviction in this country

of any crime involving moral turpitude, committed

at any time after entry; * * * any alien who

was convicted or who admits the commission prior

to entry, of a felony or other crime or misdemeanor

involving moral turpitude; * * * shall upon

the warrant of the Attorney General be taken into

custody and deported.

3

‘‘The provision of this section respecting the de-

portation 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 thereafter, due notice having first been

given to representatives of the State, make a rec-

ommendation to the Attorney General that such

alien shall not be deported in pursuance of this sub-

chapter; nor shall any alien convicted as aforesaid

be deported until after the termination of his im-

prisonment. The provisions of this section with the

exceptions hereinbefore noted, shall be applicable

to the classes of aliens therein mentioned irrespec-

tive of the time of their entry into the United

a

Question Presented

Whether Petitioner, a legal and permanent resident of

this country since 1911, is deportable under Section 19(a)

of the Immigration Act of 1917, as amended, on his uncor-

roborated, preliminary immigration, investigative state-

ment made before warrant of arrest, without benefit of

counsel, later repudiated, that he admitted the commission

of a crime involving moral turpitude in New York in 1923,

prior to his having lunched in Tijuana, Mexico in 1939,

legally returning to the United States the same day, which

going out and coming in was also denied by him on formal

deportation hearing.

Statement of the Case

The Petitioner herein filed a petition for a Writ of

Habeas Corpus in the District Court, praying therein for

his release from the custody of the Immigration Authori-

) 7

ties by whom he was held under a warrant of deportation

purportedly issued under section 19(a). (R. 2).

Facts—Petitioner was born in Germany on November 27,

1893 (R. I. 3) and was legally admitted to this Country as

a permanent resident.

There is conflict on the question of whether he ever

left the United States since that time. At the formal hear-

ing, petitioner stated that he had not (R. 1.5). The hearing

officer introduced a statement purportedly made by him

while in jail to an inspector of the Immigration Service

to the effect that he had gone to Tijuana, Mexico on Thanks-

giving Day in 1939, stayed 4 hours and returned to San

Diego the same day (Exh. 2, Pg. 4).?

Subsequently thereto, in March 1943, Petitioner was ar-

rested on a child charge (R. I. 5). He was released from

that charge and no proceedings concerning it were ever

instituted (R. I. 17).

While in jail and while unrepresented by counsel, he was

interrogated by an Inspector for the Immigration Service

(R. I. 8). He was also interrogated by the Police Psychia-

trist of the City of Los Angeles (R. 1.18). The statements

assertedly made by petitioner to those two persons at those

times were admitted into evidence and appear as Exhibits

2, 3, 4 and 6 of the Deportation Record, R. I. Those

statements are to the effect that in about 1923 he had

‘*played’’ with a 7 year old girl in New York (Exh. 2, pg.

6; Exh. 3, pg. 4; Exh. 4, pg. 3; Exh. 6, pg. 8—all to R. L.).

It is on the basis of the admission of this affair in New

York in 1923 that the warrant of deportation was issued—

i.e., that petitioner admitted the commission of a crime in-

volving moral turpitude prior to his ‘‘entry’’ into the

2 Reference to the Exhibits are the Exhibits attached to the Deporta-

tion Record (R. I.).

5

United States in 1939 after visiting Tijuana, Lower Cali-

fornia, Mexico for four hours.

There was no independent proof, evidence, suggestion,

or corroboration, neither of the 1923 New York incident,

nor of the 1939 ‘‘entry.’’

The Government’s entire case rests upon this statement

attributed to petitioner, int roduced as Exhibits at the hear-

ing. The truth of the statements has never been established.

RvuuinGs BY THE IMMIGRATION Auroritigs—On this state

of facts the immigration authorities found that petitioner

had made an ‘‘entry’’ into the United States within the

meaning of Section 19(a) (R. I. 8/17/43, pg. 2) and that

he had admitted the commission of an offense involving

moral turpitude in 1923 in New York, contrary to Section

483-a of the New York Penal Code. (R. I. pg. 2, 8/17/43).

Therefore, the authorities concluded, he is deportable to

Germany under Section 19(a).

Decisions BeLow—The trial Court ruled, without opin-

ion, that the Writ of Habeas Corpus previously issued be

discharged and dismissed and the petitioner be remanded

to the Immigration and Naturalization Authorities (R. 47).

The Court of Appeals affirmed (R. 83), holding (R. 62

et seq): (1) That the evidence was substantial and reliable

(R. 68); (2) though characterizing petitioner’s afternoon

in Tijuana and return as a ** re-entry,’’ that it nevertheless

constituted an ‘‘entry’’ within section 19(a). (The statute

says ‘‘entry,’’ not ‘‘re-entry’’); (3) as to the alleged prior

crime, the fact that it was admitted to have been committed

in the United States was of no ccasequence so long as it

was ‘‘prior to entry,”’ (R. 69); (4) that on the ground

they constituted admissions, the prior statements, on which

the Government’s entire case must hinge, made while in

jail and without benefit of counsel, were admissible (R. 76),

(5) including the hearsay report of the city psychiatrist

a: «

6

(R. 78); and (6) that no privilege against self-incrimina-

tion was infringed (R. 79).

While not in words the opinion of the Court, the concur-

ring opinion (R. 80) shines a beacon on the Court’s thinking.

After pointing out that, in his opinion, Section 19(a)

makes an untenable distinction between an alien who com-

mits a crime of enormity and one who makes an entry after

committing such a crime (R. 81) and how U. S. ex rel Volpe

v. Smith, 289 U. S. 422 represents a rule of law not based

on logic because, ‘‘No obvious answer occurs to the query

of how a man can make a re-entry as an alien from a

foreign country on which he has casually set foot into a

country in which he has already been permanently domiciled

for more than twenty years.’’ Yet, nevertheless, petitioner

is deportable because: ‘‘We believe, as a policy, this alien

and all others who have committed such crimes should be

deported whether they have re-entered or not, * * *”

This, irrespective of fundamental logic, fairness or jus-

tice and in the face of the fact that the Statute says ‘‘entry”’

not ‘‘re-entry.’’

Reasons for Granting the Writ

1. The act attributed to petitioner constituted no crime

at all, neither misdemeanor, felony, or moral turpitude or

otherwise, in New York in 1921, or 1923,° when it was sup-

posed to have been committed. The holding of the court

below (R. 67, 69) that the evidence was substantial and

reliable and that the act constituted a felony in New York

in 1923 and the trial Court’s findings of fact (R. 43-44)

that petitioner’s admission of the commission of an act in

3 There is some confusion in the record as to whether the incident

occurred in 1921 or 1923. In Exh. 2, Pg. 6, Exh. 4, Pg. 3 and Exh. 6,

Pg. 9 the time is put in 1923; While in Exh. 3, Pg. 3, it was said to be

in 1921. However, the discrepancy is immaterial because the act charged

to petitioner was no crime in New York, either in 1921 or 1923.

7

New York in 1923 was in violation of Section 483a of the

New York Penal Code and that said act constituted a felony

or other crime or misdemeanor involving moral turpitude

are absolutely erroneous and based on no facts or law what-

soever. .

There was no Section 483a of the New York Penal Code

in either 1921 or 1923, nor was the crime denounced by the

later enacted section 483a a crime in New York at that

time. See Article 44, New York Penal Code, § 480 through

494, containing the provisions as to crimes concerning chil-

dren. The same numbering system was in effect in 1921,

1923 and now. Section 483a of the New York Penal Code

and the acts prohibited by it were first enacted in Chapter

383 of the Laws of 1927 and later amended to its present

form in Chapter 424, Laws of 1933.

The act supposed to have been admitted and committed

by petitioner not having been a crime of any kind in New

York at the time of its alleged commission, petitioner can-

not be deported under Section 19(a) for the admission

of the commission of a crime which did not exist. This

alone if there be no other reason, is ample ground for this

Court’s granting the Writ. The error is palpable on its

face.

9. The decision by the court below establishes a proposi-

tion shocking to contemplate. It is elementary law that

there can be no conviction for a crime without at least a

minimum establishment that a crime was committed. That

is, without there being a corpus delecti. See Jsaacs v.

U. S., 159 U. S. 487, 490. This Court has often pointed out

that deportation may and often is of far more serious con-

sequence than conviction for crime, and that even in de-

portation proceedings, civil in nature, at least the minimum

guarantees of due process must be observed (Bridges v.

Wizxon, 326 U. S. 135, 154). Yet here we have a case of

absolute banishment and exile on the uncorroborated,

oa

garbled statement of the petitioner that in 1923 he played

with a child in New York; all this, without arrest, trial,

hearing, conviction, or proof of the truth of the charge.

There is no independent proof or even a suggestion that

the crime was actually committed. It would seem manifest

that at least the basic safeguard of that minimal proof

would be required. This Court’s review is necessary to

prevent so harsh a rule being engrained in a law which is

already notorious for its harshness.

3. The decision of the lower court is in irreconcilable con-

flict with at least two of its own previous decisions, Wong

Yee v. Weedin, 33 Fed. (2d) 377, and Shubata v. Carr, 35

Fed. (2d) 636, neither of which the lower court cited nor

considered and which cases exhaustively discuss the ques-

tion, urged by petitioner, but not passed by the lower court,

that no deportation can be predicated upon the admission

of a crime committed in the United States.

The decision of the court below is also, in principle, in

conflict with decisions of the 2nd and 3rd Circuits which

hold that the pardon and recommendation clauses of See-

tion 19(a) apply only to crimes committed in this country

and not elsewhere. See U.S. ex rel. Palermo vs. Smith, 17

Fed. (2@) 534 (C. C. A. 2 1927), Rasmussen v. Robinson,

163 F. (2d) 732 (C. C. A. 3 1947), and United States v.

Hughes, 116 F. (2d) 613 (C. C. A. 3 1940).

Again, the decision below is, in principle, in conflict with

another decision of the 9th Cireuit which also holds that

the pardon provision of Section 19(a) applies only to a

crime committed in the United States and not elsewhere.

(Weedin v. Hempel, 28 Fed. (2d) 603 (C. C. A. 9 1928).

Because of this great confusion and conflict, a decision

by this Court is necessary to eliminate it. As will be pointed

out below, U.S. ex rel. Volpe v. Smith, 289 U. S. 422, relied

upon by the lower court, did not dispel the confusion and

did not pass upon the question here involved.

8

9

No adjudicated decision, other than the instant case, has

been found in the history of the United States authorizing

the deportation of a person based upon mere admission of

a purported crime committed in this country. The point has

never been passed upon by this Court and review is neces-

sary in order that a definitive decision may be had on so

vital a question.

4. The correct construction of the word ‘‘entry’’ in Sec-

tion 19(a) is of great importance in the proper administra-

tion of the Immigration Act. In particular, the question

of establishing the materiality of an alien’s intention to

return when he stays across the border for a few hours

is of vital concern to the more than three million aliens

in this Country. Bluntly, it is time for this Court to

consider whether the word ‘‘entry’’ in Section 19(a) means

what it says or whether it means, as the lower court found,

‘‘re-entry.”’

The lower court’s ruling is erroneous and should not be

allowed to stand. Until Delgadillo vs. Carmichael, 332 U.S.

388 the concept that ‘‘entry”’ meant ‘‘re-entry’’ gave rise

to such amazing decisions as Ward v. De Barros, 75 Fed.

(2d) 34 (C. C. A. 1 1935), a ‘‘sleeping ear’’ case. It is

embarrasing to contemplate how many aliens have been

deported on so harsh a rule prior to the Delgadillo decision.

The lower court’s decision is unreasonable in that it

makes the fundamental right of residence in the country

depend upon whim, fortuity and caprice. It is no answer

to say that when petitioner stepped over the border, fully

intending to return within a few hours and did indeed so

return, petitioner knew he was leaving the country and

therefore should suffer banishment.

This case squarely gives this Court the opportunity to

decide whether it is within the dignity of this nation to

exercise the horrible punishment of exile on such flimsy

grounds. The concurring Judge below recognized the

a

10

tenuousness of the lower court’s reasoning but contented

himself with saying that it was alright because we ought

to get riu of such persons anyway. The lower court’s logic

was the same in the Delgadillo case and this Court

properly pointed out its fallacy. This Court should give

heed to such expressions by Judges faced with the prob-

lem as,

‘«Ever since it was first held that a departure, however

brief and temporary, and without regard to intention

to relinquish domicile, makes subsequent return a new

entry, courts in border districts have found it difficult

to remain silent when the result in human misery of

a literal reading of the act has been realized.’’ (Jack-

son vs. Zurbrich, 59 Fed. (2d) 937, 938), and

‘It is the opinion of this Court that the harshness,

severity and injustice of several provisions of the im-

migration Jaws should be corrected by the higher courts

or by Congress. This Court has no power except to

respectfully make the suggestion. Trial courts come

in direct contact with many of these problems. (Ez

Parte Delaney, 72 Supp. 312, 321 (D. C. S. D. Calif.

1947).)

Compare also this language from the 9th Cireuit Court

of Appeals in Carmichael v. Delaney, 170 Fed. (2d) 239,

“It is true that until very recently, except for an

enlightened decision by the Second Circuit, the federal

courts had fallen into the habit of treating every arrival

from a foreign port or place of entry, no matter what

the circumstances or however harsh and unanticipated

might be the consequences to the individual. The Su-

preme Court itself, as it has recognized, was not with-

out responsibility for the propagation of this extreme

view. But in Delgadillo v. Carmichael, supra, the Court

brought a needed measure of restraint into the inter-

pretation of the law on the subject.’’

_

11

In the light of the facts in the case at bar and of the

decision of this Court in Delgadillo, the sweep of the doc-

trine of U. S. ex rel. Volpe v. Smith, 289 U. S. 422, on which

the lower court relied, should be re-examined.

Argument

I

THE ACT PURPORTEDLY ADMITTED BY PETITIONER, NOT

BEING A CRIME OF ANY KIND AT THE TIME OF COMMISSION,

HE CANNOT BE DEPORTED FOR “ADMITTING” A NON-EXIST-

ENT CRIME.

It is elementary, of course, that if the act admitted by

an alien under section 19(a) is not ‘‘a felony or other crime

or misdemeanor,’’? he cannot be deported merely because

he admits some act involving moral turpitude. The grounds

for deportation enumerated in the section are exclusive

(Ex Parte Guest, 287 Fed. 884, 892 (D. C. R. I. 1923, ef.

Gegiow v. U. S., 239 U. S. 3, 9). And just as one cannot

be deported for the commission of a crime not involving

moral turpitude (U. S. ex rel. Guarino v. Uhl, 107 Fed.

(2d) 399 (C. C. A. 2 1939), so to the same effect, may one

not be deported for the admission of an act which, though

involving moral turpitude, is not a crime. Neither the

Immigration authorities nor the Courts may consider the

particular conduct attributed to the alien (Jbid.). Section

19(a) speaks of felonies, crimes or other misdemeanors ;

it does not speak of acts which are not one of those three.

Similarly is it elementary that there can be no crime

unless it is set down in the Penal Laws. And where, as

here, the crime alleged to have been admitted and committed

is one against the laws of a State, here New York, it is

to the laws of that State that we must turn to ascertain

whether the acts admitted constituted a crime in that State

at the time it is supposed to have been committed. See U.S.

7

ex rel. Zaffarano v. Corsi, 63 Fed. (2d) 757 (C. C. A. 2

1933), U. S. ex rel Freislenger v. Smith, 41 Fed. (2d) 707

(C. C. A. 7 1930), U. S. ex rel. Mongiovi v. Karnuth, 30

Fed. (2d) 825 (D. C. N. Y. 1929).

In the case at bar the task is simple because a particular

code section is pointed to and relied on by the Government

and the lower court (R. 63). But neither the Code section

nor a predecessor to it existed at the time involved.

In 1923, as today, Article 44 of the New York Penal Code

contained the criminal provisions regarding children. See

Gilbert’s Annotated Criminal Code and Penal Law, 1923

(Mathew, Bender & Co., Inc.). The sections in that article

numbered from 480 through 494 inclusive. There was no

483a nor were the acts now denounced by 483a prohibited

anywhere in the article.

The Section appeared for the first time in 1927. Chap-

ter 383 of the New York Laws of 1927 was enacted on

March 27, 1927 and read as follows:

12

‘*Section 1. The Penal law is hereby amended by in-

serting therein a new section, (italics added) to follow

Section four hundred and eighty-three, to be Section

four hundred and eighty-three-a, to read as follows:

**§ 483a. Carnal abuse of a female child. Any male

person of the age of eighteen years or over who carnally

abuses the body or indulges in any indecent or immoral

practices with the sexual parts or organs of a female

child of the age of ten years or under, shall be guilty

of a felony, punishable on conviction thereof, by im-

prisonment for not more than ten years.

**§ 2. This act shall take effect September first, nine-

teen hundred and twenty-seven.’’

The section was amended to its present form on April

24, 1933 by Chapter 424, New York Laws of 1933 as follows:

13

‘Section 1. Section four hundred and eighty-three-a

of the penal law, is hereby amended to read as follows:

‘¢§ 483-a. Carnal abuse of a child. Any person of the

age of eighteen years or over who carnally abuses the

body or indulges in any indecent or immoral practices

with the sexual parts or organs of a child of the age of

ten years or under, shall be guilty of a felony, punish-

able, on conviction thereof, by imprisonment for not

more than ten years.

““§2. This Act shall take effect September first, nine-

teen hundred and thirty-three.”’

Accordingly, the act ‘‘admitted”’ by petitioner not having

been a crime at the time performed, he cannot be deported

under Section 19(a) for having admitted it. It could not

be contended that the enactment of New York Penal Code

Section 483a in 1927 would make an alien deportable for

what was done in 1923 when the law did not denounce it

or exist.

Such an ex post facto construction should most certainly

not be permitted. It would be as bad as convicting one for

commission of an offense which was not charged. (Cole

y. Arkansas, 333 U. S. 196.)

Under section 19(a) the necessity of there being a crime

is jurisdictional to a valid order of deportation.

Il

IT IS CONTRARY TO ALL PRINCIPLES OF FAIRNESS AND

DUE PROCESS TO PERMIT DEPORTATION ON THE MERE

ADMISSION ONLY OF A CRIME WITHOUT THERE BEING ANY

INDEPENDENT PROOF OF ITS COMMISSION OR TRUTH OF

THE FACTS ADMITTED.

The decision of the court below permitting deportation

on the chance ‘‘admission”’ by an alien of a crime committed

20 years previous without there being even a scintilla of

evidence that a crime was committed, is shocking to the

senses, to concepts of fair play and to principles of Anglo-

14

Saxon jurisprudence. Such a rule cannot be justified

legally; it can only be justified emotionally as did the con-

curring judge below (R. 82): ‘‘we believe, as a policy,

(that) this alien and all others who have committed such

crimes should be deported. * * *”’’

This Court has often pointed out the drasticness of

deportation. It has been characterized as, at times, worse

than criminal punishment itself. (Delgadillo v. Carmichael,

332 U. S. 388, 391, Bridges v. Wixon, 326 U. S. 135, 147,

Ng Fung Ho v. White, 259 U. S. 276, 284 (it may result in

the loss ‘‘of all that makes life worth living’’). Certainly

for so drastic a punishment, minimum consideration of fair-

ness should be applied.

It is elementary law that without the establishment of the

crime itself, the corpus delecti, no confession or admission

can result in conviction. That is the rule in this Court

(Isaacs v. United States, 159 U. S. 487, 490) and it is the

rule in the other Federal Courts, including the 9th Circuit

(Pon Wing Quong v. United States, 160 Fed. (2d) 650,

651 (CCA 5 1947), Tabor v. United States, 152 Fed. (2d)

254, 257 (CCA 4 1945), Gulotta v. United States, 113 Fed.

(2d) 683, 685 (CCA 8 1940), Nofteger v. United States,

200 Fed. 494, 498 (CCA 8 1912), Martin v. United States,

264 Fed. 950, 951 (CCA 8 1920), Goff v. United States, 257

Fed. 294, 296 (CCA 8 1919), United States v. Mayfield, 59

Fed. 118 (CCA Ed. La. 1893).

This is also the rule in New York today where the crime is

alleged to have been committed (N. Y. Code Criminal

Procedure § 395), and it was the rule then in 1923 at the

time it is supposed to have been committed (People v.

Krauss, 192 App. Div. 403 (1920); People v. Roach, 215

N. Y. 592, 600 (1915).

Having the above rule of minimum safeguard in mind,

the proposition contended for by the Government and

concurred in by the lower court is monstrous and degrading.

15

We have a picture wherein the fateful consequence of

deportation is sought to be visited on petitioner in a situa-

tion where there is no proof, nor even a suggestion, that

any crime at all was committed.

Petitioner does not suggest that the strict rules of crimi-

nal evidence are absolutely applicable here and that in a

proper case the statements of petitioner might not have

been considered. He does urge most vigorously, however,

that without proof that a crime was committed, his extra

judicial admission of one, uncorroborated, cannot sanction

deportation. As this Court said in Bridges v. Wixon,

326 U.S. 185, 154:

‘‘Though deportation is not technically a criminal

proceeding, it visits a great hardship on the individual

and deprives him of the right to stay and live and work

in this land of freedom. That deportation is a penalty

at times a most serious one—cannot be doubted.

Meticulous care must be exercised lest the procedure

by which he is deprived of that liberty not meet the

essential standards of fairness.’’

Even stronger is the language of the concurring justice

in that case (Page 163 of 326 U.S.):

‘Tt is no answer that a deportation proceeding is

technically non-criminal in nature and that a deportable

alien is not adjudged guilty of a ‘crime’. Those are

over-subtle niceties that shed their significance when

we are concerned with safeguarding the ideals of the

Bill of Rights. The impact of deportation upon the

life of an alien is often as great if not greater than the

imposition of a criminal sentence. A deported alien

may lose his family, his friends and his livelihood for-

ever. Return to his notive land may result in poverty,

persecution, and even death. There is no justifiable

reason for discarding the democratic and humane

tenets of our legal system and descending to the prac-

tices of despotism in dealing with deportation.”’

a

16

This Court can do no less in this case.

Petitioner was never arrested, tried or convicted of the

crime upon which the order of deportation is based, nor has

he ever been convicted of any crime anywhere (R. I. 17).

III

THE ADMISSION CLAUSE OF SECTION 19 (A) DOES NOT

APPLY UNLESS THE CRIME IS COMMITTED OUTSIDE THE

UNITED STATES.

The lower court did not discuss the point raised by

petitioner below that there is a difference between the

admission clause and the conviction clause of section 19(a).

Instead the lower court contented itself with citing U. S.

ex rel. Volpe v. Smith, 289 U. S. 422) and did not consider

its own previous decisions in Wong Yow v. Weedin, 33

Fed. (2d) 377 and Shubata v. Carr, 35 Fed. (2d) 636 nor

the rationale of those decisions.

It is submitted that the lower court’s reliance on the

Smith case is misplaced. That case was not concerned with

an admission situation. It was a case of conviction in a

court of law in the United States. It cannot, therefore,

be contended that the Smith case modified or limited the

lower court’s decisions in the Wong Yee and Shubata cases,

which held squarely that in an admission situation, an alien

is not deportable where the crime which he admitted having

committed took place in the United States.

No decision has been found in the United States in any

Circuit, other than the Ninth, where the court was con-

fronted with an admission situation. Therefore, the ra-

tionale of the Ninth Circuit cases is applicable, particularly

where the lower court did not discuss them and did not

attempt to refute their logic.

The correct construction of the clause and the basis for

it is thus set forth in Wong Yow v. Weedin, 33 Fed. (2d)

377,

17

«© * © * Nothing is better settled than that statutes

should receive a sensible construction, such as will ef-

fectuate the legislative intention, and, if possible, so

as to avoid an unjust or an absurd conclusion. Lau Ow

Bew v. United States, 144 U. S. 47, 59, 12 S. Ct. 517, 520

(36 L. Ed. 340.) Plainly, by the section under con-

sideration, Congress intended to group all aliens de-

portable for the commission of a crime, into two classes,

and the more reasonable view is that the classification

was made with reference to the place where the crime

was committed, whether in or out of this country. Such

in plain language is the statutory characterization of

the first class; the phrase being, ‘conviction in this

country of a crime.’ True, when it comes to the second

class, the phrase used is ‘prior to entry,’ but we are

inclined to think that Congress, probably having in

mind only a single entry used the phrase as synonymous

with ‘out of this country.’ Unless that view be taken,

the language leads to confusion. For example, under

the government’s construction, appellant’s case falls

within both classes. The offense with which he is

charged was committed ‘in this country,’ and it was

also committed ‘prior to entry,’ if for the purpose of

the provision his last return be deemed an ‘entry.’

The commission of an offense entails radically dif-

ferent consequences, depending on where it was com-

mitted. In case it was committed in this country,

deportation is subject to statute of limitations, is con-

ditioned upon ‘conviction,’ and may be defeated by

either judicial recommendation or executive clemency,

whereas, if committed out of this country, ‘conviction’

is not requisite nor can resort be had to judicial recom-

mendation or pardon.’’ (Italics added.)

This case was followed by Shubata v. Carr, 35 F. 2nd,

636, 638:

‘‘But however that may be, if there was perjury at

all, the offense was committed in Seattle and hence

within the territory of the United States and that the

“7

appellant could have been criminally prosecuted in the

Courts of the United States for the offense there can

be no doubt. That being true, under the Immigration

Act as we have construed it in Wong Yow v. Weedin

(C.C.A.) 33 F. (2d) 377, appellant is subject to deporta-

tion for the offense, not in case of admission, but only in

case of a conviction. It is therefore thought that the

deportation warrant is void.’’ (Italics added.)

Again, in Ono v. Carr, 56 F. (2d) 772, 773, the Court

observed:

18

‘*It is held in those cases that an admission of the

commission of a felony in order to constitute a ground

of deportation, must be an admission of the commission

of a felony ‘prior to entry’; that if the felony was com-

mitted in the United States the deportation must be

based upon a conviction of a felony, whereas no such

distinction is made in the provision of the Immigra-

tion Laws dealing with the entry of aliens which reads

as follows:

‘. . . Persons who have been convicted of or who

admit having committed a felony or other crime or

misdemeanor, involving moral turpitude. . . .’’’

Reading the applicable provisions of Section 19a to-

gether to give rational, logical, sensible and statutory

sequence and interpretation to its meaning, it must be held

that a bare admission means nothing unless of a crime com-

mitted outside the country. Even upon conviction and

sentence, if in this country, the alien may secure relief from

deportation by pardon, executive clemency, judicial recom-

mendation, ete. If the admission clause is not confined to

foreign crimes, we have the absurd situation where these

safeguards and possibilities are not permitted. So caprici-

ous an intent should not be attributed to Congress.

The concept that different consequences ensue depend-

ing upon whether a crime was committed within or without

19

this country is not confined to the admission or convic-

tion clause of Section 19(a). Thus it is held with reference

to the pardon and recommendation clauses of the Section,

that they apply only if the conviction and pardon or recom-

mendation were in this country and not elsewhere. See

U. S. ex rel. Palermo v. Smith, 17 Fed. (2d) 534 (CCCA

91927), Weedin v. Hempel, 28 Fed. (2d) 603 (CCA 9 1928),

Rasmussen v. Robinson, 163 Fed. (2d) 732 (CCA 3 1947),

United States v. Hughes, 116 Fed. (2d) 613 (CCA 3

1940).

Taking those latter cases into consideration with the

position of the Government’s in the instant case, the situa-

tion is one where the alien is sought to be held both ‘‘com-

ing and going.’’? Thus if he were convicted in another

country and pardoned there, he is nevertheless deportable ;

not so if this oceurred in this country. This is the doctrine,

established, of course, over the Immigration Authorities’

objection, of the cases just cited. However, now say

these same authorities, if he merely admits the commission

of a crime before entry, he is deportable regardless of the

place the crime was committed. Thus, the same alien, if

convicted in this country, may not be deportable, but if he

admits the crime in this country, he is. It would seem that

so arbitrary a rule does not comport with the principle

that statutes must be given a reasonable construction, nor

with the rule that all parts of the statute must be given

effect.

And finally, the construction urged by petitioner dove-

tails in and gives a reasonable construction to the word

‘‘ontry’’ discussed under Point IV, infra. It means that

in Section 19(a) the intent of Congress is to permit de-

portation within five years after a conviction in this coun-

try and not at all if there is only an admission; while as to

a crime committed elsewhere before entry, whether ascer-

a

20

tained by admission or conviction, there is no status of limi-

tations. Thus construed, the statute makes sense, effect

is given to all parts of it and deportation does not depend

upon the caprice or fortuity of having lunch in a restaurant

across the street.

IV

THE TERM “ENTRY” IN SECTION 19(A) DOES NOT MEAN A

“RE-ENTRY” OF AN ALIEN LAWFULLY ADMITTED TO THIS

COUNTRY FOR PERMANENT RESIDENCE WHO HAS MOMEN.-

TARILY STEPPED ACROSS OUR BORDERS ALWAYS INTEND-

ING TO RETURN AND ACTUALLY RETURNING WITHOUT

GIVING UP HIS RESIDENCY OR THE PERMANENCY THEREOF.

Perhaps some theoretical or legalistic basis could be sug-

gested here to distinguish this case from United States

ex rel. Volpe v. Smith, 289 U. S. 422, on this entry point

on which the lower court relied, and from Lapina v. Wil-

liams, 232 U. S. 78, Lewis v. Frick, 233 U. S. 291 and

United States ex rel. Clausen v. Day, 279 U. S. 398 on which

the Smith case is based. This was the approach adopted

successfully in the Petition in Delgadillo v. Carmichael, 332

U.S. 388. See Page 8 et seq., Petition for Writ of Certiorari

in the latter case, No. 63, October term, 1947.

Thus it could be suggested that an alien permanently and

lawfully residing in this country for some 28 years who

lives in California and simply steps a few hundred yards

across the border of the contiguous State of Mexico for a

few hours to have lunch or to shop or to view the races is

in an entirely different category from one who boards a ship

or airplane, goes to Cuba, stays for a visit and then re-

turns in an airplane. (Smith case) or from one who

knowingly sails out on ships destined for distant foreign

shores and then returns (Day case) or from one who

designedly went across to Canada for the purpose of bring-

ing back a woman for immoral purposes (Lewis v. Frick) or

from one who boards a ship destined for Russia and stays

21

there for a visit before returning to this country (Lapina v.

Williams). In other words it may be suggested that in

petitioner’s case there was really no break in continuity

of permanent residence and that the above mentioned cases

do not apply and that the principle of Delgadillo does.

However, any such attempt at distinction would con-

cededly be leaning on a slim reed. The truth of the matter

is that the rule that ‘‘entry’’ in Section 19(a) means ‘‘re-

entry’’ of an alien who is lawfully here for permanent

residence and who never relinquished that residence is an

unreasonable and unwarranted construction of that sec-

tion and not required nor sanctioned by it. Courts which have

been faced with the rule have recognized its harshness ;

even both opinions in the lower court in the case at bar

recognized its lack of logic (R. 69, 81). Indeed the con-

curring opinion recognized the ‘‘highly fortuitous incidence

of such’’ an entry (R. 82) and pointedly said:

‘‘No obvious answer occurs to the query of how a

man can make a re-entry as an alien from a foreign

country on which he has casually set foot into a country

in which he has already been permanently domiciled

for more than twenty years.”’

Nevertheless both opinions below rested on the theory

that petitioner is a bad person (R. 69, 82) and should be

deported in any event, irrespective of the logic or harsh-

ness of the rule. But, as has often been said, even bad

persons have rights before the law in this country (Andrews

v. Chesapeake and Potomac Telephone Co., 83 Fed. Supp.

966, 968).

The spectacle of the Government of the United States

lying in wait for an alien who was punished for his prior

erime or who, because the laws of the State wherein the

crime was supposed to have been committed say that he

shall not be punished, unsuspectingly innocently and

22

momentarily barely sets foot across the border, and then

pouncing on him, to inflict the horrible punishment of

banishment and exile is one unfitting of this great Nation.

The ‘‘entry’’ rule now extant, limited only by the Del-

gadullo doctrine, is illogical, capricious and is not required by

the statute. The language of this Court in Delgadillo ig

equally applicable here (332 U. S. 388, 391) :

‘*Respect for law does not thrive on captious inter-

pretations.

‘*Deportation can be the equivalent of banishment or

exile. See Bridges v. Wixon, 326 U. S. 135, 147. The

stakes are indeed high and momentous for the alien

who has acquired his residence here. We will not at-

tribute to Congress a purpose to make his right to re-

main here dependent on circumstances so fortuitous

and capricious as those upon which the Immigration

Service has here seized. The hazards to which we are

now asked to subject the alien are too irrational to

square with the statutory scheme.’’

Conclusion

The Petitioner’s Petition for a Writ of Certiorari should

therefore be granted.

Respectfully submitted,

Davip C. Marcus,

206 S. Spring St.,

Los Angeles, Calif.;

4‘ A. L. Wirt,

FRED OKRAND,

v 257 S. Spring St.,

Los Angeles, Calif.;

Attorneys for Petitioner.

(5770)