PERALTA
CHARGE:
Order: Act of 1952—Section 241 (a) (1) [
This case is before us on the appeal of the trial attorney from the special inquiry officer‘s order of April 19, 1965, terminating the deportation proceeding.
The respondent is a 56-year-old married male, native and citizen of the Philippines, who was admitted to the United States for permanent residence on September 19, 1928. He last entered the United States on January 15, 1950 at which time he presented a reentry permit. He was convicted of robbery in the first degree on May 8, 1936 and was sentenced to a term of five years to life, being paroled on February 5, 1940.
On October 6, 1958, a special inquiry officer concluded that the respondent was deportable on the charge stated above and directed his deportation. Subsequently, we dismissed his appeal. In 1961 the respondent applied for adjustment of his immigration status under
In his decision (pp. 2 and 3), the special inquiry officer stated that the respondent was a national of the United States when he last entered the United States and that he is charged with deportability on the ground that he was excludable under section 212(a)(9) of the Immigration and Nationality Act [
As a basis for terminating the deportation proceeding, the special inquiry officer cited Rabang v. Boyd, 353 U.S. 427 (1957), and Costello v. Immigration and Naturalization Service, 376 U.S. 120 (1964). In the first case, it was held that a person who was a national of the United States, by virtue of birth in the Philippine Islands, became an alien on July 4, 1946 regardless of the fact that he had permanent residence in continental United States on that date. The court concluded that Rabang was deportable on the basis of a narcotic conviction in 1951. The Costello case involved a deportation proceeding under
There is an important distinction between the Costello case and that of the respondent in view of section 8(a)(1) of the Philippine Independence Act of March 24, 1934 [48 Stat. 456; 48 U.S.C. 1238, 1940 ed.], which became effective on May 1, 1934. It was there provided as follows: “For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13(c)), this section, and all other laws of the United States relating to the immi-
We have also considered the possible applicability to the respondent‘s case of Mangaoang v. Boyd, 205 F.2d 553 (9th Cir., 1953), cert. den. 346 U.S. 876. When that case was before this Board, we had held that he was deportable under the Act of 1918, as amended by the Internal Security Act of 1950, upon a finding that he had been a member of the Communist Party from about February 1938 to December 1939. Matter of M—, 4 I. & N. Dec. 360 (1951). Mangaoang arrived in continental United States for permanent residence in 1926 and had never left this country. In concluding that Mangaoang was not deportable, the Court of Appeals was of the opinion that it was necessary, under the Act of 1918 as amended in 1950, for membership in the Communist Party and alienage to exist simultaneously. However, the decision was also based on other factors, that is, the possible doubt as to whether the reference in the Act of March 24, 1934 to all other immigration laws would apply to the legislation enacted in 1950; the fact that the 1934 legislation became completely obsolete on July 4, 1946; the question of whether the word “aliens” in the 1950 Act was broad enough to include persons who were actually nationals of the United States but who were to be considered as if they were aliens under the Act of March 24, 1934; and the fact that Mangaoang‘s arrival in continental United States in 1926, being prior to the 1934 Act, did not constitute an “entry” for immigration purposes since he was not then an alien for any purpose but was a national of the United States. In view of these other factors involved in the Mangaoang case, we do not consider that case to be analogous to that of the respondent.
When the respondent last entered the United States on January 15, 1950, he was an alien for all purposes and he was then excludable under section 3 of the Immigration Act of 1917 as a person who had been convicted of a crime involving moral turpitude. Accordingly, we adhere to the conclusion in our order of January 29, 1959 that the respondent is deportable on the charge stated above. In that order, we stated that the respondent met the statutory requirements under
ORDER: It is ordered that the special inquiry officer‘s order of April 19, 1965, terminating the deportation proceeding, be withdrawn.
It is further ordered that the hearing be reopened for further proceedings in accordance with the foregoing and that the case be remanded to the special inquiry officer.