IVIATI ER OF C
In DEPORTATION Proceedings
A-12143440
Decided by Board January 2, 1962
Deportability—Sections 241(a)(4) and 241(b) of 1952 Act—Effect of U.S. citizenship at time of conviction—Retroactive effect of denaturalization—Single
scheme issue—Inference that crimes are unrelated when committed a year
spark
(1) Respondent entered the United States as an alien in 1895, was naturalized as a United States citizen in 1925, reentered the United States in 1948,
was convicted in 1954 of two counts of federal Income tax evasion, and was
denaturalized in 1959. Held: respondent is deportable under section 241
(a) (4) of the Act as an alien who after entry (in 1895) has been convicted
of two crimes involving moral turpitude not arising out of a single scheme
of criminal misconduct.
(2) No defense to deportability Iles In contention that respondent was a
United States citizen rather than an alien on the date of his conviction in
1954. Section 241(a) (4) of the Act does not require that the offender
must have had the status of an alien at the time of his conviction.
(3) No bar to deportability found in the fact that because respondent was
convicted while he was a citizen he may have been deprived of access to
the provisions of section 241(b) of the Act permitting a court to make a
recommendation against deportation within 30 days after passing sentence.
(4) In view of the retroactive effect of a. denaturalization decree under section 340(a) of the Act, the "relation-back" doctrine may properly be invoiced so that for the purposes of section 241(a) (4) respondent can be
considered as having been an alien at the time of his conviction.
(5) Where respondent was convicted in a single trial for filing a fraudulent
tax return on January 14, 1949 for the calendar year 1948, and on another
count for filing a fraudulent tax return on March 10, 1950 for the calendar
year 1949, and where he refused to testify at the deportation hearing and did
nut viler orobaLive evidence bearing on We issue, Lela Lhe uoimai inference
that crimes are not related when committed a year apart has not been controverted, and the government has met its burden of proving that the two
offenses did not arise out of a single scheme of criminal misconduct.
CHARGES:
Order: Act of 1952—Section 211(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of two crimes after entry (tax evasion 1954; tax evasion 1954;
contempt of Congress 1952).
Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4))—Convicted
of crime committed within five years of 1948 entry (tax evasion
524
committed 1949: tax evasion committed 1950; cornea, 0.. cooof
gres.s committed 1951).
Act of 1952—Section 241 (a ) (4 ) IS U.S.C. 1251 ( a ) (4) ]—Convicted
of two crimes after entry (tax evasion 1954; tax evasion 1954;
contempt of Congress 1952; contempt of court 1957).
BEFORE THE BOARD
DISCUSSION: This is an appeal from the order of the special
inquiry officer requiring the respondent's deportation on the first
charge set forth above on the basis of the convictions in 1954 for
tax evasion. The appeal will be dismissed.
The respondent, a 70-year-old married male, a native of Italy,
concedes that he is an alien. These events are relevant. The respondent entered an an alien in 1895. He was naturalized in 1925.
He returned from Mexico to the United States in 1948. He has the
following convictions: contempt of Congress in 1952, tax evasion
in 1954 (two counts), and contempt of court in 1957. His naturalization was revolted in 1959.
Deportation on the first charge is sought under that portion of
section 241 (a) (4) of the Immigration and Nationality Act (8 U.S.C.
1251(a)(4)) which provides:
(a) Any alien in the United States (including an alien crewman) shall,
upon the order of the Attorney General, be deported who—
( 4 ) … at any time after entry is convicted of two crimes involving
moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless or
whether the convictions were in a single trial.
Deportation was ordered on the basis of the tax convictions. The
issues are whether these convictions, to constitute grounds for deportation, had to occur while the respondent was an alien, whether
the convictions were for crimes involving moral turpitude, and
whether they arose out of a single scheme.
The Tax Convictions and Alienage
This discussion is concerned with one who is an alien but who in
the past was a citizen and while a citizen was convicted of crime.
We believe that the precedents hold that if the condition which
is basis for deportation (0.g., conviction of crimes) is one which
could occur to either an alien or a citizen, then the nationality status
of the individual at the time the condition arose is immaterial.
We believe that the basis for deportation here is a condition which
could have occurred to either an alien or a citizen. We conclude
that the nationality status of the respondent at that time was immaterial. The precedents fall into two categories. In the first are
the cases decided on the basis of the fact, that the ground of deportation is related to the making of an entry and that by definition
525
only an alien can make an entry ; therefore, a person who was not
an alien at the time he came to the United States, had not made
an entry and there was no need to consider whether he had to be
an alien later when the deportable ground arose. If, however, the
individual was an alien at the time of entry or if alienage at the
time of entry is not a factor because the ground of deportation is
not related to an entry, the issue as to the necessity of the coexistence•
of alienage and the occurrence of the ground of deportation requires
decision, but no defined term dictates the answer.'
In the situation before us, alienage at the time of entry in 1895
is conceded.2 The situation before us is one concerned not with
alienage and entry but with the coexistence of alienage and the
emergence of the ground of deportation. Before we consider this
group of cases we shall consider the group which concerned entry
since counsel relies upon such cases. The cases concerned with
alienage at the time of entry are Barber v. Gonzaleg, 317 U.S. 637
(1954), and United States ex rel. Brancato v. Lehanann,
239 F.2d 663
(C.A. 6, 1956). Gonzales, a native of the Philippines, was a national of the United States from the time of his birth until 1946
when he became an alien. He resided in the United States continuously from the time of his admission in 1930. Convicted of crimes
in 1941 and in 1950, he was ordered deported in 1951 under that
portion of section 19(a) of the Immigration Act of 1917 (
39 Stat.
889, as amended, formerly 8 U.S.C. 155(a)) which called for the deportation of an alien "who is hereafter [May 1, 1917] sentenced more
than once … because of conviction in this country of any crime
involving moral turpitude, committed at any time after entry."
An entry can be made only by an alien who has voluntarily come
from a foreign port. Gonzales contended that he had made no
entry for he had come neither as an alien nor from a foreign port; he
had come as a national from an insular possession to the mainland.
The Service contended that he should be considered as if he had been
an alien coming from a foreign port, because from 1934 to 1946 the
law provided that for the purpose of the immigration laws Filipinos
were "considered as if they were aliens." The Court ruled that
Gonzales was not deportable. The Court held that until 1934 the
Philippines could not be regarded as foreign; that Gonzales had not
arrived from foreign; and that there was, therefore, no entry. The
' In addition to grounds of deportation whore slIPusiz.P is reauired because
an entry is involved is the ground which by its nature can be met only by
one who is an alien (e.g., failure to register as an alien, failure to maintain
status as nonimmigrant (sections 241(a) (5) and (9) of the Act, 8 U.S.C.
1251) ), but we are not ennee.rned with such a ground.
It is proper to use the first entry (Banes v. Boyd, 236 17 .2(1 934 (C.A. 9,
1956); United States ex rel. Belfrale v. Kenton, 131 F. Supp. 570, affd. 224
F.20 803 (C.A. 2, 1055)).
526
Court would not consider Gonzales as if he had made an entry as an:
alien. This disposition of the case made it unnecessary for the Court
to rule on the contention that Gonzales had not been an alien in 1941
at the time of conviction.
Brancato concerned a native of Italy who had entered the United
States as an alien in 1914. Naturalized in 1929, he had returned
from a foreign visit in 1930 and had been convicted of a crime in
1032. He was denaturalized in 1939. Deportation was ordered under
that portion of section 19(a) of the Immigration Act of February
1917, as amended (39 Stat. 889, as amended, formerly 8 U.S.C.
155(a)), which required the deportation of an alien "who is hereafter [May 1, 1917] sentenced to imprisonment for a term of one
year or more because of conviction in this country of a crime involv--
ing moral turpitude, committed within five years after the entry of
the alien to the United States." The district court found that Brancato had been properly ordered deported. The district court held
that the denaturalization was retroactive making Brancato an alien
at the, time of conviction. As an additional authority, the court cited .
United States ex rel. Eichenlaub & Willumeit v. Shaughnessy, 338,
U.S. 521 (1950) (discussed in detail later). Upon appeal, the circuit
court (one judge dissenting) reversed the district court on the'
ground that the law required an entry and since an entry could be
made only by an alien, the law did not apply to Brancato who had'
entered as a citizen. Despite the denaturalization, the circuit court.
refused to indulge, in the fiction that Brancato had been an alien
at the time of entry. It went on to state that Eichenlaub was not
applicable to the "general deportation statute" (Immigration Act
of February 5, 1917) which the court was considering.
Passing from the cases which turn on the connection between
"entry" and alienage, we come to those concerned with whether alienage must have existed when the deportation ground arose. United.
States ex rel. Eichenlaub & Wi.11zimea.t v. Shaughnessy, 338 U.S', 521
(1950) (4-to-3 decision), concerned two aliens found to be undesirable residents of the United States whose deportation had been ordered
under the Act of May 10, 1920, which in pertinent part provided:
That aliens of the following classes, in addition to those for whose expulsion
from the United States provision is made in the existing law, shall [if found
undesirable residents] … be … deported in the manner provided in.
serum-is 19 and 20 of the Act of February 5. 1917 …:
Ail aliens who since August 1, 1914, have been or may hereafter be convictml of any violation or conspiracy to violate … [The Espiouage Act of
June 15, 1917, as amended].
Eichenlaub, a native of Germany, became a citizen of the United
States in 1936. In 1941, he was convicted for violation of the
Espionage Act of 1917. In 1944, his citizenship was cancelled on
the ground of fraud in its procurement. Willumeit was naturalized
527
in 1931. In 1942, he was convicted of conspiracy to violate the
Espionage Act of 1917. In 1944, his naturalization was cancelled on
the ground of fraud in its procurement.
The Court found the substantial issue was whether the law required the individuals involved to have been aliens at the time they
were convicted. Refusing to decide whether a retroactive effect
should be given to the denaturalization orders, the Court states:
• • • A simpler and equally complete solution lies in the view that the
Act does not require that the offenders reached by it must have had the
status of aliens at the time they were convicted. As the Act does not state
that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have
been naturalized. The convictions of the relators for designated offenses are
important conditions precedent to their being found to be undesirable residents.
Their status as aliens is a necessary further condition of their deportability.
When both conditions are met and, after hearing, the Attorney General finds
them to be undesirable residents; of the United States, the Act is satisfied.
• s ■ •
-The recognized purpose of the Act was deportation. It is difficult to imagine
.,a reason which would have made it natural or appropriate for Congress to
authorize the Attorney General to pass upon the undesirability and deportability of an alien, never naturalized, who had been convicted of espionage,
but would prohibit the Attorney General from passing upon the undesirability
and deportability of aliens, such as the relators in the instant cases, who had
procured certificates of naturalization before their convictions of espionage,
but later had been deprived of those certificates on the ground of fraud in
their procurement. If there were to be a distinction made in favor of any
aliens because they were at one time naturalized citizens, the logical time at
which that status would be important would be the time of the commission
of the crimes, rather than the purely fortuitous time of their conviction of
those crimes. Not even such a distinction finds support in the statute.
The Court pointed out the failure of Congress to make a distinction between aliens who had never been naturalized and thoso who
had lost United States citizenship was not the result of unfamiliarity
with such matters.
The dissenting opinion stated that the statute permitting the deportation of an alien should be read to apply only to the person
who had been an alien when convicted. It pointed out that since
the statute permitted either of the two constructions without violence to language, the construction which led to hardship should be
rejected. Its review of the Congressional history failed to reveal
that Congress had denaturalized citizens in mind when the law was
passed.
Mangaoang v. Boyd, 205 F.2d 553 (C.A. 9, 1953), cert. den.
346
U.S. 876, concerned a native of the Philippines who resided continuously in the United States from the time of his admission in 1926.
He was a national of the United States from birth until 1946 when
he became an alien. He had been a member of the Communist Party
from 1938 to 1939. The membership was the baths for an order of
528
deportation under the Act of October 16, 1918, as amended by the
Internal Security Act of 1950 (64 Stat. 1006, c. 1024, Title I, section 22) providing in pertinent part for the deportation of—
"Any alien who was at the time of entering the United States, or has been
at any time thereafter," a member of the following class'
Aliens who are members of … the Communist Party of the United
States (S U.S.C. 137, 137-3(a), Supp. v, 1946 ed.).
Mangaoang, who had been a national of the United States in
1938 and 1939 when he belonged to the Party, contended that the
law called for the deportation only of one who was an alien and
a member of the Party simultaneously. The district court ruled
that membership and alienage did not have to be coexistent. Eich,enlaub was relied upon. The circuit court, reversing, ruled that the
words "aliens who are inemberS" (emphasis in original) indicated
that Congress referred to persons who were at the same time both
aliens and members of the Party. The court distinguished Eichenlax") on the ground that language there calling for the deportation
of certain aliens convicted "since August 1, 1914" limited deportation
only in that the conviction had to be after the date given; there
was no requirement that alienage must have existed at the time of
conviction.
The Government had also contended that if the law called for
alienage and membership to exist simultaneously, Mangaoang was
deportable, nevertheless, because he lied to he considered as if he
were an alien since the Philippine Independence Act of 1934 provided that for the purpose of all immigration laws, Philippine nationals "shall be considered as if they were aliens." The circuit
court held that there was doubt as to whether Filipinos were to be
considered as aliens under all immigration laws or only under
immigration laws which existed up to the time the provisions went
into effect but that if the directive applied to legislation which
became effective subsequently, there was nothing in the law under
which Mangaoang's deportation was sought which authorized the
deportation of nationals who were to be considered aliens. Moreover, if a construction was possible which required deportation of
nationals who were to be considered aliens, it would raise an ambiguity which must be resolved in favor of the alien. In deciding
this issue, the court also placed reliance upon the fact that the
directive had become obsolete in 1946 and no longer had any effective reference to any one. Finally, as a further reason why Mangaoang was not deportable, the court pointed out that deportation
was authorized only of an alien who had made an entry into the
United States and that when Mangaoang came to the United States
in 1926, he had not made an entry.
529
654377-65-35
Resurrection-Talavera v. Barber, 231 F.2d 524 (C.A. 9, 1956),
involved a person born in the Philippines. He was a national of
the United States from birth to 1946 when he became an alien.
He entered the -United States in 1934. In 1942, he was convicted of
crime. In 1952, he made several visits to Mexico. He was ordered
deported under section 19 of the Immigration Act of 1917 for having
been convicted of crime prior to his entry. The pertinent law
provided that "any alien who was convicted … prior to entry, of a
felony or other crime or misdemeanor involving moral turpitude;
shall … be '… deported." Talavera argued that this law did
not apply to him because he had been a national at the time of conviction. The court sustained the order of •deportation. The court
stated: "that Talavera was a national of the United States and not
an alien at the time of his conviction of the crime involving moral
turpitude is irrelevant. … The statute under which Talavera was
ordered deported does not include a requirement that the deportee
be an alien at the time of his conviction" (p. 525).
Counsel is of the belief that the result in Mangaoang was different from that in Eichenlaub or Talavera because Mangaoang used
the present tense in calling for deportation, while in the other cases
(counsel alleges) deportation was called for in the past tense. It
follows, therefore, counsel contends, that since in the instant case
deportation is called for in the present tense, the result should be
that found in Mangaoang, i.e., a coexistence of alienage and the
coming into being of the ground of deportation.
We do not believe that counsel's contention can be sustained. In
the first place, the language in Eichenlaub is not confined to the
past tense; it calls for the deportation of aliens who "have been or
may hereafter be convicted." Moreover, there is nothing in Talavera
or Eichenlaub to indicate that the tense affected the courts' decision.
The courts found alienage was not a necessity simply because the
language did not call for alienage at the time of conviction—either
an alien or a citizen could come within the language used. In
Mangaoang, on the other hand, only an alien could comply with
the language the court found controlling. That tense alone is not
sufficient where the language does not eliminate all but aliens may
be seen from the fact that Congress used the past tense in requiring the deportation of individuals for acts which could have been
committed only at a time when they were a,lien8, for example, entry
without inspection (section 241(a) (2), 8 U.S.U. 1251) or failure to
register as an alien (the first ground set forth in section 241( (a) (5)
of the Act, 8 U.S.C. 1251). Surely something stronger than tense
of a verb, would have been used by Congress had there been the intent to exempt the convicted person who had been a naturalized
citizen when the ground of deportability arose, but later became an
alien.
530
That Congress would have resorted to definite language requiring
coexistence of alienage and the creation of a ground of deportation
is strengthened by an examination of the history of the law. In
1950, the Supreme Court, considering Eichenlaub, found that Congress, in enacting legislation to deport aliens, could not have been
unaware of the fact that in the United States there were and
would be aliens who became aliens because of the cancellation of
their naturalization. The Supreme Court concluded that if Congress had desired to exempt a denaturalized citizen from the application of the immigration laws because he had been a citizen when
the ground of deportation arose, provision to this effect would have
been made. This consideration is pertinent today. The Immigration and Nationality Act of 1952 was enacted with considerable
thought having been given to the cancellation of naturalization
(Conunentary on the Immigration and Nationality Act, pp. 86 - 87,
Title 8, Aliens and Nationality (1953); S. Rept. No. 1515, 81st
Cong., 2d Sess., pp. 754-769 (1950) ). The Act was the result of
the study of "each of the thousands of provisions of our immigration and naturalization laws with the end in view of appraising their
adequacy, force and effect and in conjunction therewith the judicial
and administrative interpretations of the provisions of the law and
the rules and regulations implementing them" (S. Rept. No. 1137,
82d Cong., 2d Sess., p. 2 (1952) ). The Senate version of what became the Immigration and Nationality Act contains a proposal
based on the law involved in Eichentaub (S. Rept. 1137, 82d Cong.,
2d Sess., pp. 21-22) and the very law was incorporated in section
241(a) (17) of the Act (8 U.S.C. 1251). We cannot find that
Congress was not aware of the existence of L'ichenlaub or the problem of the denaturalized person when it enacted section 241(a) (4) of
the Act. Furthermore, in connection with its study of the immigration laws, Congress had before it (S. Rept. No. 1137, 82d Cong.,
2d Sass., p. 22) the following recommendation of the Special Committee to Investigate Organized Crime in Interstate Commerce:
The immigration laws should be amended to facilitate deportation of criminal and other u sirable aliens. To this end, the committee recommends
the adoption of th .igislative proposal heretofore recommended by the Commissioner of Immigration and contained in section 241 of S. 716 (82d Cong.).
now pending before the Senate Judiciary Committee. 3
Some of the criminals who occupy key positions in criminal gangs and syndicates are alien-born. Some came into this country illegally. Some have
See tectimory of. the Commissioner before the Committee on March O.
1951 (S. Rept. No. 307, 82d Cong., 1st Sees., p. 579) discussing grounds of
deportation similar to those found in section 241 (a) of the Act and the additional proposal for the deportation of aliens who at any time after entry
were convicted of crime and declared to he undesirable by the Attorney General.
531
never been naturalized. Others obtained naturalizati n certificates by concealing their criminal activities. (S. Rept. No, 307, 82d Cong., 1st Sess.,
p. 15)
It appears to us that this is some indication that Congress desired
that a naturalized person whose naturalization was revoked should
be made the subject of deportation proceedings, and that the deportation of alien criminal elements be facilitated whether or not
they had been naturalized.
Counsel, relying upon the characterization of Eichenlaub in Brancato, contends that Eichenlaub is not applicable. In Brancato the
court said that Eichenlaub did not apply to the "general deportation
statute." This statement is dicta for the case had already been decided on the theory that an entry was required and Brancato had
made no entry since he had entered as a United States citizen.
With due deference to the dicta of the circuit court, we would point
out that the majority opinion in Eichenlaub made no attempt to
distinguish the Act of 1920 involved from the general deportation
statute and that Mr. Justice Frankfurter (joined in his dissenting
opinion by two other Justices) was of the belief that "The court's
decision has serious implications with respect to citizens denaturalized for reasons not involving moral blame, and who have, while
citizens, committed one of a variety of acts not involving moral
obliquity and certainly not endangering the security of the country
but which nevertheless are covered by other statutory provisions in
language similar to that before us." He gave as an example a
provision of the general deportation statute which provided for the
deportation of an alien convicted for violation of a narcotic law.
Moreover, Eichenlaub has generally in both administrative and judicial opinions been considered as applying to the general deportation
law (e.g., Marks v. Esperdy, 198 F. Supp. 40 (S.D. N.Y., 1961),
and Matters of P—, 4 373).
Furthermore, it is most telling that Congress which presumably
knew of Eichenlaub placed the ground of deportation involved there
in the general deportation statute in 1952 when it was made a part
of section 241(a) (17) of the Act (8 U.S.C. 1251) and provision
also was made for the deportation of aliens who violate current
provisions of the 1920 Act found in 18 U.S.C. 791 794, 2388, and
-
3241. For what it may be worth, we must point out that Mangaoang,
upon which counsel places much reliance, also did not concern the
general deportation law (Immigration Act of February 5, 1917); it
involved a special, law relating to the exclusion and expulsion of
subversives (Act of October 16, 1918, 40 Stat. 1012, as finally
amended by the Act of September 23, 1950 (
64 Stat. 987). Lastly,
it must be stated that Talavera involved the general immigration
statute.
532
Counsel contends that it is improper to apply section 241(a) (4)
of the Act to one who was convicted while he was a citizen because
such application makes ineffective the provisions of section 241(b)
of the Act which permit a court to make a recommendation against
deportation within 30 days of passing sentence. Counsel relies
upon Gubbels v. Boy, 261 F.2d 952 (C.C.A. 9, 1958). Gubbels involved the question as to whether a conviction of a military court
could be a basis for deportability. The court held that since a military court. could not make a recommendation against deportation,
Congress had not intended to make its sentence the basis for deportation. The issue was the nature of the tribunal whose judgment
Congress intended to be the basis for deportation. Such is not the
issue here, where, as the special inquiry officer has pointed out, it
was not the nature of the tribunal but the respondent's misconduct
in obtaining naturalization improperly which prevented him from
obtaining a recommendation against deportation. (Actually, the
question of making a recommendation could have been raised by the
respondent who had been fighting efforts of the Government to
denaturalize him since at least October 1952 (Exh. 5, p. 2).) •
Moreover, the fact that an alien has not had an opportunity to
petition the court for a recommendation against deportation does
not prevent his deportation for conviction of crime under a law
which does provide for such recommendation. The right of the
nation to expel aliens is absolute and unqualified (United States ex
rel. Circella v. Neelly,
115 F. Supp. 615, 626 (N.D. Ill., 1953), aff'd
sub Rom United States ex rel. Circella v. Sahli,
216 F.2d 33 (C.A.
7, 1954), cert. den.
348 U.S. 964; and Matter of L—, 8- 389, 390).
See, United States ex rel. Klo-nis v. Davis,
13 F.2d 630 (C.A. 2, 1926) ;
Todaro v. Munster,
62 F.2d 963 (C.A. 10, 1933) ; and Matter of
17—M--, 8 94. Moreover, the provisions calling for the deportation
of convicted aliens and the malting of recommendations against deportation have been in effect since 1917. Filipinos convicted between
1917 and at least 1934 were nationals of the United States to whom
the immigration laws did not apply. Yet, in 1934 Congress had no
hesitancy in providing for the application of the immigration laws,
including the 1917 Act, to Filipinos for acts which had occurred (and
until 1946 would occur) while they were nationals (see Mesirut v.
Rosenberg, 278 F.2c1 291, 296-297 (C.A. 9, 1060) ). Finally, there
is still available to the respondent the benefits of that portion of section
241(h) which prevents deportation of one who has obtained a pardon.
Several administrative decisions are pertinent to the issue as to
the necessity of the coexistence of alienago and the conviction.
Natter of L—, 6-666 (1955), concerned an individual who had
entered the United States as an alien in 1920. He became a United
533
States citizen in 1931. He was convicted of four crimes in 1940.
in 1950, he lost United States citizenship under section 401(g)
of the Nationality Act of 1940 which provided for the expatriation
of a dishonorably discharged citizen who in time of war had been
convicted by court martial of desertion. Deportation proceedings
were brought under section 241(a) (4) of the Act charging L—
with having committed two crimes after entry. The Board sustained the order of deportation. Subsequently, the Supreme Court
ruled that section 401(g) of the Nationality Act of 1940 was unconstitutional (Trop v. Dulles, 356 U.S. 86) and because of this,
on September 11, 1958, the Board withdrew its order of 1955 and
terminated proceedings. Counsel in a supplemental brief presents
the belief that the Board's order in 1955 was in error. He is of
the belief the issue was given little consideration ; that expatriation
presents a different situation from a cancellation of naturalization;
and that Mangaoang was distinguished administratively merely on
the grounds relating to entry, ignoring the additional ground concerning the coexistence of alienage and the ground of deportability.
We do not believe our decision was in error. The issue was appropriately considered and decided on the basis of precedents, including
Eieh.enlaub.
Matter of 8—, 5-678 (1954), concerned a person who while a citizen of the United States had been convicted of theft on three occasions.
Subsequently, he lost his United States citizenship by taking an oath of
allegiance to a foreign government. When he attempted to returh to
the United States, he was excluded under the Immigration and Nationality Act as one who had been convicted of crime involving moral
turpitude prior to entry. The alien contended that at the time the
offenses were committed he was not an alien but a citizen and was not
excludable because he had never been convicted of a crime as an alien.
The Board held that the contention was without merit because the Act
required the exclusion of persons who were aliens without excepting
those 'who had been citizens and suffered expatriation. Eielzenlaub
was relied upon and Mangaoang was distinguished by reference to its
third numbered paragraph. This paragraph points out that. Mangaoang differs from Eichenlawb because in Eichenlaub the language "did
not require a showing that at the time of conviction. … the person in
question had then been an alien" while in Mangaoang the language
did require the person to be an alien. Counsel contends that 5 —
was found excludable "because of the past-tense language of the
statute involved" and that Mangaoang "was distinguished as being
based on a present - tense statute similar to section 241(a) (4)." We
find no mention of tense as a reason for ordering S—'s deportation.
The convictions in Matter of 8— could have happened to either an.
534
alien or a nonalien, and the law did not limit deportability to those
who had been convicted only as aliens. This was the basis of the
decision. The same basis for decision was used in Matter of M , —
A-11875663, 9-452 (1961), which involved a native-born citizen
of the United States who had been convicted of a crime in 1951.
Be. expatriated himself in 1959 by service in the armed forces of a
foreign state. He last entered in 1960. His deportation was ordered
under the Act as one who had been excludable in 1960 as an alien
convicted of crime prior to entry.
Matter of P , 4 373 (1951), and Matter of TV , 5 759, 764
(1954), involved persons who entered as United States citizens and
were ordered deported for having been convicted of crime, or having
admitted commission of crime prior to last entry. Counsel is of the
belief that deportation was ordered because the past tense was used in
the laws. In these cases, decided before Brancato, the Board's decision was not based upon the tense of the statute involved but upon the
fact that denaturalization stripped the individual of United States
citizenship retroactively. There io no baois for concluding that the
Board would have acted differently had the statutory language been
written in proesenti.
Counsel contends that to find it possible to interpret section
241(a) (4) to make the coexistence of alienage and conviction unnecessary would make the statute ambiguous so that a construction
favorable to the respondent should be taken. The rule of the
cases, however, is clear. When the law requires deportation for
acts which can be performed or happen to either an alien or a
citizen, nationality status at the time of the performance or happening is immaterial unless the law provides that alienage must
be present. There is thus no ambiguity. Applying the rule to the
language of section 241(a) (4), we find that the act condemnedconviction—can occur to either a citizen or an alien and the law_
does not provide that -the subject be an alien. Therefore, alienage
at the time of conviction was not a necessity ' and the charge is
sustained if moral turpitude is involved and the crimes did not
arise out of -a single scheme of criminal misconduct.
Single Scheme
Couithei contends that the Service has failed to prove that the
two convictions on which the order of deportation is based did not
arise "out of a single scheme of criminal misconduct." The respondent had been indicted for filing false and fraudulent income tax
4 So that all major aspects of the case may he properly developed for. judicial review, if it should take place, we shall subsequently discuss the issue
as to whether the respondent must not be considered to have been an alien
at the time of conviction.
535
returns for 1946, 1947, 1948 and 1949. The jury convicted the
respondent for the years 1947, 1948 and 1949. He was sentenced
to 5 years on each count, to run concurrently, and a fine was imposed. On appeal, the conviction as to 1947 was reversed.
At the deportation hearing, the respondent refused to testify.
The Service presented the record of the convictions, she:wing in one
count a violation of the law by the filing of a fraudulent return on
January 14, 1949, for the calendar year 1948, and in the other count,
a fraudulent filing of a tax return on March 10, 1950, for the year
1949. The Service then rested. In his defense, the respondent presented the summation of the prosecuting attorney at the tax evasion
trial as evidence that the convictions arose out of a single scheme
(Exh. 15). The summation reveals that the Government's case is
built upon the net worth theory. Proof was made of the respondent's assets in 1946, the amount of income he reported for the years
1046 to 1040, the fact that ho had spent twice the money he had
reported as income for those years, and the fact that there was a
source from which the additional income could have come to the
respondent. The sums spent over and above that which could be
attributed to the assets started with and income reported were
alleged to be income concealed. The brief of the respondent sets
forth several instances where the prosecuting attorney, in his summation, made the point that the revviideul, had so cor:ducted himself over a period of years that he had spent twice as much as he
had reported, defrauding the Government of taxes due. Great
emphasis is put on this statement of the prosecuting attorney. "If
the F—C—s can get away with this scheme to defeat and defraud
the-Government out of income taxes, then the honest taxpayers of
this country … will carry the load … (p. 1834, Exh. 4). The
respondent also submitted a subpoena for F—, an attorney, who had
represented the respondent at the trial on income tax evasion. It
was alleged that although not a participant, the witness allegedly
had knowelge of the facts which would show a single scheme.
Counsel explained that the request to subpoena F— came after the
death of D—, another of the respondent's attorneys at the tax evasion trial and one who had agreed to testify. The request was
denied. Counsel then requested (and received) permission to submit affidavits from F— and another person. However, affidavits
were not submitted. The Government presented the summation of
the defense counsel at the tax evasion trial (E.&11. 17), an affidavit
of C—'s in support of a motion for inspection of minutes of the
grand jury (Exh. 18), and testimony of S , a defense witness at
the tax evasion trial (Exh. 19).
.The special inquiry officer ruled that the burden of proving that
the convictions had not arisen from a single scheme was upon the
536
Government and that in the absence of probative evidence to the
the contrary, a record of conviction failing to show acts in furtherance of a common plan would suffice to establish a single scheme
did not exist. The special inquiry officer, relying heavily on Chanan
Din Khan T. Barber, 147 F. Supp. 771 (N.D. Calif.), aff'd
253 F.2d
547 (C.A. 9, 1958), cert. den.
357 U.S. 920, where the facts are similar to those in the instant case, found that a single scheme had not
existed.
Counsel contends the Service cannot bear its burden of establishing that the respondent's crimes did not arise out of a single scheme
by merely introducing a conviction in the situation before us because
there is nothing in the two successive tax evasions which negates
singleness of scheme. Counsel contends the Service is under the
obligation of making further proof that a single scheme was not
involved. Counsel contends that Chanan, Din Khan v. Barber,
supra, is wrong because it was decided in the belief that the burden
of proof as to the single scheme issue was on the alien rather than
on the Service, and because the term "single scheme" was equated
with a single punishable crime. Counsel contends that these tests
were rejected in Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959).
Chanan Din Khan was reviewed in Wood T. Hoy, supra, and
quoted from, without criticism. It is, therefore, guiding authority
for a situation such as was involved there. Chanan Din Khara, on
facts very similar to those before us, held that an indictment showing convictions on two fraudulent returns filed a year apart is persuasive evidence that two unrelated crimes were involved. In the
instant case, there is no probative evidence controverting the inference which flows from the commission of crimes a year apart. Certainly, the ,remarks of the prosecuting attorney at the tax evasion
trial do not controvert the inference which flows from the convictions. The prosecuting attorney was concerned with the concealment
of income from the Government to avoid payment of taxes. He did
not have to prove that when the respondent took the first step to
defraud the Government that he intended to continue to do so for
the next three years. The word "scheme" could have been applied
to actions and plans which had as their end the filing of a fraudulent tax return if only one year had been involved. It was unnecessary fnr the prosecuting attorney to establish that there was a
scheme to commit both violations in order to obtain a conviction.
Moreover, even if this ambiguous opinion by the prosecuting attorney, made in the heat of advocacy, referred to a conspiracy for the
four years, it would not be controlling as to the actual state of
mind of the respondent. In fact, if the opinion of the prosecuting
attorney were meant to express the belief that when the respondent
filed his return for 1948 he conspired to defraud the Government
537
in the next three years, it was an opinion not shared by the jury
which acquitted the respondent on the charge involving the year
1946.
Counsel sites Matter of F—G— & C D , 8 147, in support of
his contention that the convictions in the instant case arose out of a
single scheme. In the administrative decision cited, the first alien had
been convicted on two counts of making a false statement for the purpose of obtaining unemployment insurance benefits. In count one he
was charged with making the first false statement and in count two
with making the second false statement a week later. The Board
decided that it was proper to conclude that when the alien falsely
represented he was unemployed to obtain benefits, he intended to do it
again on the following week, although the inference might be too
broad if attempt were made to extend it to the entire 26 weeks of benefits. In the instant case, it would be even less proper to infer that the
intention to falsify the return filed in March 1950 was formed in
January 1V4t when the prior fraudulent return was filed (Chanan
Din Khan, v. Barber, oupra).
Counsel contends that the net worth theory by its very nature
prevents a showing that two crimes did not arise out of a single
scheme. This contention is based on the belief that under the net
worth theory convictions for two successive years are possible upon
proof of facts which show no more than that the indicted person
received a sum of money in one year and spent it in two successive
years without reporting what was spent as income in either year.
In other words, the possibility is raised that in January 1949, the
respondent evaded the payment of taxes then due on income which
he had received in 1948 and that, although in March 1950 he filed
a return showing some income in 1949, it could have been from the
same income concealed in 194g that the money came which was spent
in 1949 in excess of that reported. It is answer enough that there
is no proof that the convictions for 1948 and 1949 were the result
of a conspiracy to evade payment of taxes for income which had
been received only in 1948. On the contrary, the record of that trial
reveals there was income for both 1948 and 1949 (Exh. 19, pp.
1679 (a)--1681 ( a) ). Moreover, an examination of the reported tax
conviction case reveals the following pertinent charge to the jury :
This [net worth] method involves determination of the defendant's net
worth at the beginning and end of a period in order to foreclose the possibility that the cxpcnditurca were made, or the net worth increases were
derived, from.prior accumulated funds.
• • • • •
In order for you to find that sums received by the defendant during any
of the taxable years constituted income to him, It is not necessary for the
Government to have proved the exact source of the income. None of the
alleged excess investments and expenditures made by the C—s during any
538
year shall be considered in determining the taxable lot:owe of the defendant
F—C-- in any year unless you find that there was an excess of expenditures
and investments, and that It constituted money which the defendant received
as taxable income during the year in which the money was spent. (United
States v. Costello, 221 F.2d 668, 070 (C.A. 2), aff'd
350 U.S. 359)
The net worth theory is a method for proving that a crime was
committed during a particular year. Its use does not negate the
possibility that the crimes were the reaulte of independent violations made from year to year rather than at one time in a particular year.
Moral Turpitude
We come now to the question of whether the special inquiry officer
properly found that the respondent's convictions on two counts for
violation of 20 U.S.C. 145(b) involve moral turpitude. The special
inquiry officer, relying upon judicial precedents, found that fraud
was an ingredient and that moral turpitude was present. The issue
was fully discussed by the special inquiry officer. Counsel contends
that United States v. Seharton, 285 U.S. 518 (1932), and United
States v. Carroll°,
30 F. Supp. 3 (W.D. Mo., 1939), require a contrary finding. Similar contention based upon the cases cited by
counsel was made in Chanan Din Khan v. Barber,
147 F. Supp.
771, 775 (N.D. Calif., 1957), which concerned violations of the same
section involved in the instant case. The court found that moral
turpitude was present. The decision of the court was affirmed upon
appeal,
253 F.2d 547, and certiorari was denied,
357 U.S. 920. We
see no need to discuss this issue further.
We find no reversible error in the denial for the issuance of a
subpoena for F—. The issuance of a subpoena is a discretionary
matter. While the respondent was entitled to produce evidence in
such form as he desired, there was no abuse of discretion in denying
the subpoena in the absence of some inure specific statement as to
the testimony which the witness could offer.
The respondent's deportability is established on the first charge
because of convictions for evasion of taxes.
Relation: Back Theory
Our conclusion is that alienage and conviction need not bo coexistent; however, as we previously indicated, we shall consider the
issue as to whether the respondent should be regarded as having
been an alien at the time of the conviction since he has been denaturalized under section 340(a) of the Act (8 U.S.C. 1451). The section provides that revocation "shall be effective as of the original
date of the order and certificate." The special inquiry officer found
the law to be that denaturalization is retroactive and confers upon
539
the subject the status of an alien at all times and for all purposes,
except that one who entered while naturalized may not be considered
as having entered as an alien, and except that certain language providing for the deportation of an alien who is a member of a proscribed organization requires that there must be a coexistence of
alienage and membership. The special inquiry officer ruled. that
since C— fell in neither of the exceptions, he must be considered
as having been an alien at the time of the conviction. Counsel contends that the "relation-back" theory should not be applied because
judicial precedents require that a denaturalized person be regarded
as if he had been a citizen before the denaturalization even though
he was not lawfully entitled to be naturalized. We believe that the
"relation-back" theory is properly applied here.
Prior to the Immigration and Nationality Act, it was established
that a revocation of naturalization, whether for fraud or for illegality, vva (UulGed States ex rel. Brancato v. Lehmann,
supra). While there was general agreement that the denaturalized
person must be considered as an alien from the time of the denaturalization, the rule of the cases appears to have been that the fiction
that alienage existed at any particular moment in the past would
not be indulged in if the individual would be required to do what
was impossible of performance. Thus, the fiction was not indulged
in where it would require an individual who entered as a United
States citizen to have been in possession of the documents required
of an alien (Matter of C—, 3-275 (Atty. Gen., 1950)). In the same
vein, it was improper to consider one who did something as a national
of the United States, as if he had done it while an alien (Barber v.
Gonzales, supra). However, the relation-back doctrine was applied
where it did not require the "impossible" of the alien (Matter of P — ,
4 373).
Although it is the contention of counsel that it is improper to
apply section 340(a) to a deportation section, we see nothing in
the working or the history of this law (which at the minimum
merely restates what was decided judicially) that would prevent its
application to deportation proceedings. The section can be given
effect in the case before us without violence to precedents if we consider the respondent as an alien at the time he was convicted. The
commission of crime or the conviction was not related to nationality.
To consider the respondent as having been an alien at the time of
the conviction imputes to him no action which he, as a citizen, could
not have done. No impossibility is asked for. We believe it is
proper for the purposes of section 241 (a) (4) of the Act to consider
the respondent as having been an alien at the time of his conviction.
(Cf. Mesina v. Rosenberg,
278 F.2d 291 (C.A. 9, 1960).)
540
Counsel contends that Congress could not have intended the relation-back theory to apply because in section 241(b) provision was
made for a recommendation against deportation, a provision which
would be of use only to an alien. This contention has been previously considered; we pointed out that Congress has the power to
deport an alien who had no access to a recommendation against
deportation. Congress must have realized that the 30-day period
within which such a recommendation could be made would have
passed by the time of the denaturalization. and may have been content to permit the denaturalized person to resort to a pardon.
At oral argument, counsel expressed the belief that the special
inquiry officer had used Eichenlaub as authority to give a retroactive effect to alienage (p. 4 of oral argument). Although the special inquiry officer gave a retroactive effectt to the denaturalization,
he did not use Eiehenlaub as authority for this. (See last sentence
on p. 15 of the special inquiry officer's opinion.) The special inquiry
officer relied upon the statutory declaration in section 340(a) of the
Immigration and Nationality Act (p. 18 of special inquiry officer's
opinion).
The special inquiry officer found the respondent deportable on the
first charge. The first charge is superfluous; it is contained within
the third. The record does not establish the respondent's deportability on the second charge for the reason stated by the special
inquiry officer. The respondent's deportability on the third charge
is sustained, based on the tax evasion convictions; deportability on
the basis of the other convictions has not been established.
The findings of fact and conclusions of law of the special inquiry
officer are adopted except Conclusion of Law No. 3 will be amended
to eliminate the convictions in 1954 for tax evasion as grounds on
which the respondent is not deportable:
(3) That you are not deportable under section 241(a) (4) of
the Immigration and Nationality Act based on conviction
for two crimes after entry (contempt of Congress in 1952;
contempt of court in 1957).
ORDER: It is ordered that the appeal be dismissed.
It is further ordered that the respondent be deported from the
United States in the manner provided by law on the third charge
of deportability based solely on the income tax convictions.
541
