MATTER OF S K C
In DEPORTATION Proceedings
A-3656158
Decided by Board November 14, 1958
Good moral character—Suspension of deportation—Employment as dealer in
gambling bonne, during part of statutory pori o d burs alion from ontubliahing
good moral character (section 101(0(4)).
Applicant for suspension of deportation who received salary for six months
as dealer or operator of gaming table Is held to have derived income from
gambling activities within meaning of section 101(f) (4) of the 1952 act and
by reason of such employment within statutory period to be barred from
establishing good moral character.
CHARGE:
Order: Act of 1952—Section 241(a) (11), as amended July 18, 1950 (8 D.S.E.
1251(a) (11), 1952 ed., Supp. V)—Convicted of violation of law
relating to illicit possession of narcotic drugs,
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of
a special inquiry officer denying the respondent's application for
suspension of deportation and directing that he be deported.
The respondent is a 62-year-old married male, native and citizen
of China, who last entered the United States on November 1, 1932,
as a returning resident. He has resided in the United States since
July 1911 but had been absent on 3 occasions prior to November 1,
1932. On March 11, 1938, he was convicted of possession of narcotic drugs in violation of a statutory provision of the State of
Washington, and he served 2 years of a 3 to 10 years' sentence.
The respondent has conceded his deportability, and the only
issue involved is whether the application for suspension of deportation should be granted or denied. For the reasons hereinafter stated,
Ave hold that he has not established statutory eligibility for suspension of deportation, and we do not reach the question of whether,
in the exercise of discretion, a grant or denial of suspension would
have been appropriate.
It is contended by counsel that deportation for a crime committed
20 years ago is too extreme a penalty to impose on a man who has
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reformed. The charge of deportability stems from 8 U.S.C. 1251
(a) (11) as amended by the Act of July 18, 1956 (70 Stab 567),
and apparently 1 he ro,pnrilenf wrird a not, h 3. vs been deportable prior
to that amendment. However, the retroactive nature of the legislation is not a bar to deporlation (Mileabey v. Catalanotte, 153
U.S. 692 (1957); Matter of M V , I. & Dec. 571 (1957)).
Hence, regardless of all other factors, 8 U.S.C. 1251(a) (11) requires the respondent's deportation unless he can establish his
eligibility for suspension of deportation or some other statutory
relief.
8 U.S.C. 1254(0 (5) sets forth the statutory requirements for
suspension of deportation which are applicable to the respondent's
care, including one that lie must establish his good moral character
for 10 years preceding the filing of the application (Matter of
5 I. & N. Dec. 261, 268 (1953)). The respondent having
filed his application for suspension on December 12. 1957, must
prove good moral character since December 12, 1917. The special
inquiry officer held that the respondent was precluded from doing
so by reason of the provision contained in 8 U.S.C. 1101(f) (4) and
the fact that he had been employed as a dealer in the gambling
games of Chinese dominoes and fan-tan at the Bataan Recreation
Club, Seattle, Washington, from about October 1956 until about
April 1957 at a salary of $M1 weekly.
The pertinent part of 8 U.S.C. 1101 is as follows: "(f) For the
purposes of this chapter—No person shall be regarded as, or found
to be, a person of good moral character who, during the period
for which good moral character is required to be established, is,
or was—… (4) one whose income is derived principally from
illegal gambling activities …." Hence, the question resolves
itself into whether this statutory provision bars the respondent from
establishing good moral character because of his employment as a
dealer from October 1956 to April 1957.
Mr. D S , operator of the Bataan Recreation Club, was
questioned by an investigator of the Service. He indicated that
players of Chinese in his establishment could not bet more
than $1.00 at a time that a player could win or lose $50 to $100
during a night ; and that the "house" collected 10 percent of the
winnings.
The respondent taatified that he had never acted a. a dealer
except at the Bataan Recreation CH) and that he took the job
there because he was unable to find any other employment at the
time. When he was asked whether the fan-tan games in which he
was a dealer were gambling games, he said that there were chips
on the table but that he did not see any money changing hands.
He admitted that he had control of the games in which he was
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dealing to the extent that he gave the winners more chips and that
he took the chips away from the losers. He stated that he placed
the chips of the losers in a chip receiver and that these chips belonged to Mr. S- .
The respondent also claimed that. he did not know how the
players obtained the chips; that he had no idea whether the players
brought their own chips; and that he does not know whether there
was a cashier at the club from whom the players might have obtained their chips. When he was asked whether he observed any
gambling while employed at the Bataan Recreation Club, he answered, "I don't remember, I did not see any." When asked whether
the people playing fan-tan or dominoes won or lost any money, his
answer was that he saw them win chips and lose chips.
Counsel argues that if money changed hands, it was handled by
the proprietor (S ) "as the investigative report reveals."
was familiar with the amount that could be won or lost in his club
during the course of a night, but there is nothing to indicate that
he handled the money. Although counsel does not make the assertion in his brief, it seems clear from the respondent's testimony
that he is claiming that he did not know that Money was being
wagered in the games in which he was a dealer, He was a mature
person, he was being paid solely for his work as a dealer, and he
was employed in this gambling house for 6 months. tinder these
circumstances, his claim is too preposterous to believe, and we find,
as a fact, that he was fully aware that money was being wagered
on these games.
It is contended by counsel that the respondent was a mere employee at the Bataan Recreation Club and cannot be said to have
been &ambling if he did not handle the money nor receive any of
the winnings. No authority is cited for the contention. We hold
that the reference in 8 U.S.C. 1101(6) (4) to income from illegal
gambling activities includes income from (1) an alien's financial
interest in a gambling establishment, (2) the gambling activities of
the alien himself, and (I) an alien's employment in a gambling
establishment where the employment has some proximate relationship to the gambling activities, such as a dealer or operator of a
gaming table. Hence, we conclude that the salary received by the
respondent as a. dealer in the Bataan Recreation Club was income
derived from gambling activities.
Counsel has referred to the fact that Mr. S had a city license
to conduct a card room and that there was nothing to indicate
any arrests for gambling had been made in his establishment.
The investigating officer stated that in all probability the games
played at the Bataan Recreation Club were illegal under the Washington Statute but are tolerated and licensed by the City of Seattle.
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The special inquiry officer cited section 9.47,0110 of the Revised Code
of Washington which prescribed a term of imprisonment up to 5
years in the case of a person who operates, as the owner, deafer,
etc., any gambling game or geese of chance. Counsel does not
urge that gambling may be conducted lawfully in the State of
Washington, and we hold that the gambling activities under discussion here were illegal.
As appears from the foregoing, the respondent's income was derived from illegal gambling activities during the period from October 1956 until April 1957. In connection with the further question
of whether his income was derived p rint %pa71y irony that source,
we have indicated that the respondent testified that he took the job
in the Bataan Recreation Club because he was unable to find any
other employment at the time. There is nothing in the record indicating that he had any source of income from October 1956 to
April 1957 other than his salary of $35 weekly from the Bataan
Recreation Club. Hence, not only was his income derived principally from illegal gambling activities, but it appears that his
income was derived solely from such activities.
We have considered one additional point although it was not
specifically raised by counsel. This relates to the connotation to
be given to the word "principally" in 8 U.S.C. 1101(f) (4). In
other words, does it mean a case in which, considering the 10-yearperiod as a whole, the income was derived principally from illegal
gambling activities? If that had been the intention of Congress,
the result could have been achieved by inserting the words "during
such period" as was done in paragraphs (2), (3), (5) and (7) of 8
U.S.C. 1101(f). The fact that it does not appear in paragraph (4),
which is here involved, is abundant reason for refusing to interpret
that paragraph as though it read, "one whose income during the
to-year-period is derived principally from illegal gambling activities."
The interpretation suggested in the preceding paragraph would
lead to absurd results. In the respondent's case, although all of his
income during a period of 6 months was derived from illegal
gambling activities, it would represent only one - twentieth of his
income during the 10 - year - period, and in those cases in which 10
years of good moral character must be established, it would apparently be necessary for the alien to have derived his income
principally from illegal ga mbling activities for approximately 5
years before the bar of this provision would come into effect.
In cases under 8 U.S.C. 1101(f) (4), the suggested construction
would result in reducing by approximately one-half the period of
good moral character which such aliens would be required to establish. That such a construction was not intended by Congress is
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amply demonstrated by other paragraphs of 8 U.S.C. 1101(f). For
example, paragraph (2) bars an alien from establishing good moral
character if he committed a single act of adultery at any time during the required period of good moral character (5, 7 or 10 years),
paragraph (5) precludes establishment of good moral character
where the alien has been convicted of two gambling offenses at any
time during the entire period even though the convictions may have
been for minor gambling infractions, and paragraph (6) bars an
alien who, in order to obtain benefits under the act, gave false testimony on any occasion during the entire period.
As we have indicated above, 8 U.S.C. 1101(T) commences with
the statement that no person shall be regarded as a person of good
moral character "who, during the period for which good moral
character is required to be established, is, cm was — " which is followed by paragraphs (1) to (8), inclusive. 8 U.S.C. 1254(a) (5),
under which the respondent's application for suspension of deportation was filed, contains the requirement that the alien prove "that
during all of such period he has been and is a person of good moral
character." In view of the language we have emphasized, we believe that the specific terms of the statute preclude a finding of good
moral character in the case of any alien who has committed the
forbidden acts or in whose case the proscribed condition existed at
any time during the required period of 5, 7 or 10 years. For that
reason and on the bans of our finding above that the respondent's
income for a period of approximately 6 months was derived principally from illegal gambling activities, we hold that 8 U.S.C.
1101(f) (4) precludes a finding of good moral character in the
respondent's case. Hence, he has not proved that "during all of
such period" (10 years) he has been a person of good moral character as required by R US.C. 1254(a) (5), and the appeal will be
dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
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