LEHMANN, OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION SERVICE, v.
UNITED STATES EX REL. CARSON OR CARASANITI.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 72.
Argued March 26-27, 1957.
Decided June 3, 1957.
An alien entered the United States in 1919 as a stowaway, and no action was taken to deport him "within five years after entry," as then limited by 19 of the Immigration Act of 1917. In 1936, he was convicted in Ohio of two separate crimes of blackmail and was given two separate sentences, the second to begin at the expiration of the first. In 1945, he was granted a conditional pardon by the Governor of Ohio for the second conviction. After enactment of the Immigration and Nationality Act of 1952, he was ordered deported thereunder on two grounds: (1) as an alien who, at the time of entry, was excludable by the then existing law, and (2) as an alien who had been convicted of two crimes involving moral turpitude, for neither of which had he been granted "a full and unconditional pardon." In a habeas corpus proceeding, he challenged the validity of his deportation. Held: the validity of his deportation under the 1952 Act is sustained. Pp. 686-690.
Roger D. Fisher argued the cause for petitioner. With him on a brief was Solicitor General Rankin. With Mr. Rankin on a brief were Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.
David Carliner argued the cause for respondent. With him on the brief were Henry C. Lavine and Jack Wasserman.
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
Respondent, a native and citizen of Italy, entered the United States in 1919 as a stowaway. No action was taken to deport him "within five years after entry" as then limited by 19 of the Immigration Act of February 5, 1917, 39 Stat. 889.
On January 15, 1936, respondent was convicted in Ohio of the crime of blackmail, and he was sentenced to imprisonment. On April 25, 1936, he was again convicted in Ohio of another crime of blackmail and sentenced to imprisonment. The second sentence was to begin at the expiration of the first. He was released from prison on February 1, 1941. A proceeding to deport him, under the provisions of 19 of the Act of February 5, 1917, based upon his convictions of these two independent crimes, was commenced, but before final determination of that proceeding, the Governor of Ohio, on July 30, 1945, granted petitioner a conditional pardon 1 for the second conviction. Because of that conditional pardon and of the provision in 19 of the 1917 Act that "the deportation of aliens convicted of a crime involving moral turpitude [353 U.S. 685, 687] shall not apply to one who has been pardoned," that deportation proceeding was withdrawn on October 9, 1945.
In 1952 Congress enacted the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C. 1101 et seq., by which it repealed 2 the Immigration Act of February 5, 1917, and, in many respects, substantially changed the law. The present proceeding was brought under the 1952 Act to deport respondent upon two grounds: first, under 241 (a) (1), as an alien who, at the time of entry, was excludable by the law existing at the time of entry (i. e., a stowaway under 3 of the Immigration Act of February 5, 1917, 39 Stat. 875), and, second, under 241 (a) (4), as an alien who had been convicted of two crimes involving moral turpitude for neither of which had he been granted "a full and unconditional pardon." After a hearing, respondent was ordered deported by a special inquiry officer. That order was affirmed by the Board of Immigration Appeals.
Respondent then filed a petition for a writ of habeas corpus in the District Court for the Northern District of Ohio, contending that, because of the five-year limitation contained in the former Act ( 19 of the Immigration Act of February 5, 1917), he could not lawfully be deported as a stowaway after the lapse of five years from the date he entered this country, and that he could not lawfully be deported for having been convicted of the two crimes of blackmail, because he had been conditionally pardoned for one of them. The District Court denied the petition. The Court of Appeals reversed, 228 F.2d 142 holding that respondent had acquired a "status of nondeportability," under the prior law, which was protected to him by the savings clause in 405 (a) of the 1952 Act, 66 Stat. 280, 8 U.S.C. 1101. Note, "unless otherwise [353 U.S. 685, 688] specifically provided" in that Act, which it held had not been done. We granted certiorari. 352 U.S. 915 .
Section 405 (a) of the 1952 Act, upon which the Court of Appeals relied, provides in pertinent part as follows:
[ Footnote 2 ] 403 (a) (13), 66 Stat. 279.
[ Footnote 3 ] It appears to be obvious that this was a typographical error and that the word should be read as "statuses."
[ Footnote 4 ] Bugajewitz v. Adams, 228 U.S. 585 ; Ng Fung Ho v. White, 259 U.S. 276 ; Mahler v. Eby, 264 U.S. 32 ; United States ex rel. Eichenlaub v. Shaughnessy. 338 U.S. 521 ; Harisiades v. Shaughnessy, 342 U.S. 580 ; Galvan v. Press, 347 U.S. 522 ; Marcello v. Bonds, 349 U.S. 302 .
Opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs. *
I agree with the Court that 241 of the Immigration and Nationality Act of 1952, 8 U.S.C. 1251, makes aliens deportable for past offenses which when committed were not grounds for deportation. The Court goes on to hold, however, that such retrospective legislation is a valid exercise of congressional power, despite Art. I, 9, of the Constitution providing that "No Bill of Attainder or ex post facto Law shall be passed." Past decisions cited by the Court support this holding on the premise that the ex post facto clause only forbids "penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment." Harisiades v. Shaughnessy, 342 U.S. 580, 594 . I think this definition confines the clause too narrowly. As MR. JUSTICE DOUGLAS pointed out in his dissenting opinion in Marcello v. Bonds, [353 U.S. 685, 691] 349 U.S. 302, 319 , another line of decisions by this Court has refused to limit the protections of the clause to criminal cases and criminal punishments as those terms were defined in earlier times. Fletcher v. Peck, 6 Cranch 87, 138, 139; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. And see United States v. Lovett, 328 U.S. 303, 315 , 316.
What is being done to these respondents seems to me to be the precise evil the ex post facto clause was designed to prevent. Both respondents are ordered deported for offenses they committed long ago - one in 1925 and the other in 1936. Long before the 1952 Act reached back to add deportation as one of the legal consequences of their offenses both paid the price society then exacted for their misconduct. They have lived in the United States for almost 40 years. To banish them from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later. I think that this Court should reconsider the application of the ex post facto clause with a view to applying it in a way that more effectively protects individuals from new or additional burdens, penalties, or punishments retrospectively imposed by Congress.