74 F.2d 379 | 9th Cir. | 1934
The Secretary of Labor having issued a warrant of deportation against appellant, appellant petitioned the District Court of the United States for the District of Hawaii for habeas corpus. Upon the return of the writ, the director of immigration reported that he was holding the petitioner on a warrant for deportation.
It appears that appellant was charged with having in his possession 2-90 grains of smoking opium which had been imported into the United States, and with having in Iris possession 29-0 grains of smoking opium in a package to which there was not then and there affixed the tax-paid stamp required by law; that he pleaded guilty to the charge; that the plea was entered in pursuance of an arrangement or stipulation with the United States attorney that the recommendation would he made to the court against the deportation of the prisoner; that such a recommendation was made; that the trial judge sentenced appellant to a term of six months on one count of the indictment, and placed him on probation for a period of three years on the other count; and that the judge of the District Court at the time of imposing sentence recommended and directed in pursuance of 8 USCA § 155-, that the petitioner be not deported.
The warrant of deportation was issued notwithstanding the recommendation of the trial judge and notwithstanding the circumstances under which the plea of guilty was entered upon the theory that the statute of 1931 required such deportation and that the provisions of 8 USCA § 155, with relation to the power of the trial court in which the conviction occurred, did not apply to eases in which the alien had been convicted of violating the laws of the United States with relation to opium. Act Feb. 18, 1931, 8 USCA § 156a. A similar question arose under the Act of May 26, 39-2.2 (21 USCA § 175). This court held that under this latter act the provisions of 8 USCA § 155, concerning the recommendation of the trial judge, were applicable to such cases. Hampton v. Wong Ging (C. C. A.) 299 F. 289; Weedin v. Moy Fat (C. C. A.) 8 F.(2d) 488; Chung Que Fond v. Nagle (C. C. A.) 15 F.(2d) 789. It was held in those cases that the direction in 21 USCA § 175, that the alien “be taken into custody and deported in accordance with the provisions of sections 155 and 156 of Title 8 or provisions of law hereafter enacted which are amendatory of or in substitution for such sections,” in effect incorporated into the act the provisions of section 155 in regard to the sentence of the alien for crime and the direction of the judge in connection therewith, as follows: “The provision of this section respecting the deportation 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 recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this subehapter. * * * »
Under 8 USCA § 155, deportation would follow in a narcotic ease only when the imprisonment was for a year or more and where the conviction occurred within five years aft
If we follow our previous decisions interpreting the Act of May 26, 1922 (Hampton v. Wong Ging, supra; Weedin v. Moy Fat, supra; Chung Que Fond v. Nagle, supra), and attribute to them the added force which comes from the assumption that Congress, in passing the Act of February 18, 1931, had in mind the interpretation which had been given by this court to the Act of May 26, 1922, the question involved herein resolves itself into the question of whether or not the change of phraseology in the Act of February 18, 1931 (8 USCA § 156a), to “shall be taken into custody and deported in manner provided in sections 155 and 156 of this title” implies an intent to confine the applicability of the provisions of section 155 to the manner of deportation, that is, by warrant, etc., as distinguished from the language theretofore used in the Act of May 26, 192-2, that the alien should be deported in accordance with the provisions of sections 155 and 156 of title 8 USCA.
The appellee relies upon the decision of the Supreme Court in Bugajewitz v. Adams, 228 U. S. 585, 33 S. Ct. 607, 608, 57 L. Ed. 978, construing sections 2 and 3 of the Act of March 26,1910 (36 Stat. 265, e. 128), providing for the deportation of prostitutes and others. This amendatory act struck out the three-year limitation on such deportation theretofore contained in said sections 2 and 3, and the question was whether the fact that the amended sections ordered deportation “in the manner provided by sections 20 and 21” reincorporated in sections 2 and 3 the very limitation which had been omitted therefrom ex industria, because such a limitation remained in sections 20 and 21 (Act Feb. 20, 1907, 34 Stat. 904). Before the amendment, sections 2 and 3 provided for deportation of aliens practicing prostitution within three years after entry “as provided in sections 20 and 21.” As amended, the sections (2 and 3) provide for deportation “in the maimer provided” in sections 20 and 21. Of this situation Mr. Justice Holmes said: “We are of opinion that the effect of striking out the three-year clause from section 3 is not changed by the reference to sections 20 and 21. The change in the phraseology of the reference indicates the narrowed purpose. The prostitute is to be deported, not ‘as provided’ but ‘in the manner provided’ in sections 20, 21. Those sections provide the means for securing deportation, and it still was proper to point to them for that. United States v. Weis [D. C.] 181 F. 860; Chomel v. United States, 112 C. C. A. 461, 192 F. 117.”
While this decision gives some color in support of appellee’s contention that the difference in the language of the Act of February 18, 1931 (8 USCA § 156a, supra), from that of the similar act (21 USCA § 175, supra), in referring to the provisions of 8 US C A § § 155 and 156, the language used in both is appropriate to incorporate by reference the sentence by the trial judge with or without recommendation against deportation, if it can be said that the sentence is in any sense a part of the proceedings necessary for deportation, as we have held. Hampton v. Wong Ging, supra; Weedin v. Moy Fat, supra; Chung Que Fond v. Nagle, supra. We do not think that this slight change in lau
Order reversed, and trial judge directed to enter an order releasing the prisoner from custody.