This аction is based on a complaint for a review of an order of deportation issued against the plaintiff herein. Defendant moved for summary judgment. Thе District Court granted the motion and from the judgment entered in favor of the defendant, this appeal is taken.
Plaintiff was born in Italy and entered this country in 1922. On June 5, 1959, plаintiff was served with an order to show cause why he should not be deported. The charges in the order were that plaintiff, an alien, was deportable under Sec. 241(a) (4) of the Immigration and Nationality Act in that after entry to this country he was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
The evidence disclosed that on December 29, 1938, in the United States District Court for the Northern District of Indiana, South Bend Division, plаintiff and three others were convicted of the offense charged in a one-count indictment of conspiracy to violate the Internal Revenue Act. Plaintiff was sentenced to • 180 days and served five months of that term in a federal correctional institution.
On January 10, 1941, in the same court, upon pleаs of guilty, plaintiff and others were found guilty of violation of United States Code, Title 18, § 88 (now Section 371 of Title 18), “Conspiracy to eommmit offense or to defraud United States.” A sentence of two years was imposed and plaintiff served time in a federal correctional institution.
Fingerprint evidence was received to identify plaintiff as the defendant Morgaño who had served time at the federal correctional institution at Milan, Michigan, and also at the United States Penitentiary at Terre Haute, Indiana.
Plaintiff argues that Sec. 1251 (a) (4) of Title 8 U.S.C.A., upon which the deportation order was based, is unconstitutional in that it offеnds against the Fifth Amendment. Plaintiff also argues that the section is an ex post facto law and therefore violates Article I, Sec. 9, Clause 3 of the Constitution.
The District Director contends that we may not consider the question of con *219 stitutionality of the Act because plaintiff did not raise the point or make this contention before the Administrative Agency or in the District Court.
In the ordinary civil suit, jurisdictional questions may be raised at any time even by the reviewing court sua sponte. However, the constitutionality of a statute is not necessarily a jurisdictional issue as that term is commonly understood. In 4 C.J.S. Appeal and Error § 234, it is stated: “It is a rule of general application that the constitutionality of a statute cannot be first questioned on appeal * * *. Under various circumstances, however, the constitutionаlity of a statute may be first considered on appeal * * *. [Wjhere the question of constitutionality involved is one of jurisdiction of the subject matter, sincе jurisdiction of subject matter cannot be waived or conferred by the parties, the court may consider the question for the first time on appeаl. * * * ” (footnotes omitted.)
Although the constitutionality of a statute may, at times, be a jurisdictional question, such is not generally the case. In the case at bar, no question has been raised that the Immigration and Naturalization Service in any manner lacks jurisdiction over aliens and deportation proceedings. In a somewhat similar situation, Wong Tai v. United States,
We would be justified in refusing to consider the question of constitutionality of 8 U.S.C.A. § 1251(a) (4) becausе the appellant has raised that question for the first time on appeal. However, the point is not of great importance here because were we to consider the issue on the merits, we would follow the decision of this Court in United States ex rel. Circella v. Sahli, 7 Cir.,
As to plaintiff’s argument based on the claim of
ex post facto
invalidity, we pointed out in United States ex rel. Circella v. Sahli, 7 Cir.,
Plaintiff claims error in that Exhibits 15, 16, 17, 18, 19 and 20 were improperly received in evidence. It is, of course, well settled that the rules of evidеnce covering judicial proceedings are not applicable to administrative deportation proceedings. The only determination the administrative tribunal needs to consider on the question of admissibility of evidence is whether the evidence is reasonable and of probative vаlue. United States ex rel. Marcello v. Ahrens, 5 Cir.,
Plaintiff contends that Exhibit 17 was improperly received in evidence. This is a finger print card. Investigator Johnson testified he took the prints and he identified the plaintiff as the per
*220
son who was “printed.” He also stated that finger printing was required by regulations. The Agency regulation which required the alien to be finger-printed is found in 8 CFR 242.4. We find no error in the admission of Exhibit 17. Holt v. United States,
Exhibit 18 is an alien registration form and finger prints. We upheld the admissibility of а similar exhibit in United States ex rel. Circella v. Sahli, 7 Cir.,
Plaintiff also urges that Exhibits 11 and 12 should not have been received. Thеse exhibits pertain to the prior convictions of plaintiff. It is plaintiff’s contention that the crimes to which plaintiff pleaded guilty in one case and of which he was found guilty in the other, did not involve moral turpitude. Plaintiff urges that the reliance which the Government has placed upon Jordan v. DeGeorge,
Thе plaintiff in the case at bar was named as a co-conspirator in the indictment in the DeGeorge case. Referring to that indictment, the Supremе Court stated, 341 U.S. at pages 224-225,
We think the DeGeorge case is not only pertinent but is controlling. The Court there stated,
In plaintiff’s lеngthy brief a number of additional questions are raised. We have carefully considered each one. We find plaintiff’s contentions with reference thеreto to be without merit. It would unduly extend this opinion to discuss each one of them. We think we have discussed the controlling issues.
We hold that the plaintiff herein was afforded procedural due process. The order of deportation is based upon a record of substantial evidence. The judgment of the District Court is
Affirmed.