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Gambino v. Immigration and Naturalization Service

decided: January 7, 1970.


Waterman, Friendly and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge.

Petitioner seeks review under 8 U.S.C. § 1105a of an order of the Board of Immigration Appeals (the Board) dismissing an appeal from an order of a special inquiry officer of the Immigration and Naturalization Service (the Service) ordering the deportation of petitioner pursuant to 8 U.S.C. § 1251(a) (1) on the charge that petitioner entered the United States illegally on December 23, 1921 as a stowaway. The Board also denied petitioner's requests for discretionary relief brought pursuant to §§ 244(e), 245 and 249 of the Immigration and Nationality Act of 1952 (the Act), 8 U.S.C. §§ 1254(e), 1255 and 1259. The grounds of the petition are that a departure to Canada in 1935, under the pre-examination procedures then in effect, and return to this country supersedes the 1921 arrival as an entry, that § 241(f) of the Act, 8 U.S.C. § 1251(f), bars the deportation of petitioner and that discretionary relief was improperly denied for failure to answer certain questions. We find no error, deny the petition for review and affirm the order of dismissal.

Concededly Gambino's original entry into the United States as a stowaway in 1921 was illegal at that time (and now) and would ordinarily be a ground for deportation pursuant to § 241(a) (1) of the Act (8 U.S.C. § 1251(a) (1)). But petitioner claims that a departure to Canada and return on the same day in 1935 under a pre-examination procedure set up under regulations adopted in that year was a legal entry, or at least an entry superseding the 1921 entry so that the order based on the stowaway entry in 1921 is invalid. We agree with the Board that the 1935 entry has no such effect. Gambino's departure was for the limited and temporary purpose of applying for a consular visa, which was refused in his case because of his arrest record. Such an absence and return did not effect a valid entry which would erase the effects of the earlier illegal entry. Cf. Rosenberg v. Fleuti, 374 U.S. 449, 83 S. Ct. 1804, 10 L. Ed. 2d 1000 (1963); McLeod v. Peterson, 283 F.2d 180 (3d Cir. 1960). The 1935 departure and return did not erase the effects of the 1921 illegal entry, and did not supersede the previous entry; the order based on the 1921 entry is valid. Nor was petitioner's return from Canada in 1935 the equivalent of the exercise of the Attorney General's discretionary authority under the 1917 Immigration Act to admit resident aliens returning from a temporary absence. There is no record of Gambino's being lawfully admitted for permanent residence in 1935 or any time.

Gambino, a figure of some notoriety, highlighted by the revelation of his attendance at the much publicized gathering at Appalachin, New York in 1957 (see United States v. Bufalino, 285 F.2d 408 (2d Cir.1960)) has been the subject of deportation proceedings since November, 1957. At several points the proceedings were delayed due to Gambino's poor health. After various hearings and delays, a special inquiry officer found in 1966 that Gambino had various ailments including a serious heart condition but that Gambino had been able to perform other activities. The officer concluded that Gambino should submit to further interrogation, but to minimize the danger to Gambino's health, the officer directed that the questioning be conducted by written interrogatories. Gambino was sent a list of eleven questions concerning his criminal record, business activities, acquaintances and associates (many of whom are convicted felons), his visit to Joseph Barbara's home in Appalachin in 1957, and was asked for production of copies of his income tax returns for the last ten years; however, Gambino only partially answered two of the questions and refused to answer any others. After Gambino's repeated refusal to answer the questions, the inquiry officer denied Gambino's requested relief and ordered Gambino's deportation to Italy on the basis of his illegal entry in 1921 as a stowaway.

The denial of the discretionary relief requested by petitioner was not an abuse of the Attorney General's discretion. Before Gambino could qualify for the discretionary relief of 8 U.S.C. § 1255 (adjustment of status to that of permanent resident) he had to meet certain objective prerequisites including that he be admissible to the United States for permanent residence under the Act. One of the grounds for inadmissibility under § 212 of the Act is conviction of a crime involving moral turpitude (§ 212(a) (9)). Gambino was convicted in 1941 for conspiracy to violate the Internal Revenue laws; since his offense included an intent to defraud the United States of taxes due, it involved moral turpitude within the meaning of the Immigration laws. Jordan v. DeGeorge, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951). Since the Attorney General did not waive this conviction, it stood as a bar to petitioner's relief under 8 U.S.C. § 1255. Petitioner also applied for relief under §§ 249 and 244(e) of the Act, but both sections specifically impose a good moral character requirement for the exercise of such relief. The Service had shown that Gambino had been convicted of crimes, and he had testified at one of the prior hearings that he was earning money from the SGS Company. Under these circumstances, his activities and associations, as well as his current sources of income were surely relevant in determining whether the applicant was a person of good moral character and whether the grant of discretionary relief from deportation was justified, and Gambino's repeated failure to supply such information was a good ground for refusing discretionary relief. Kimm v. Rosenberg, 363 U.S. 405, 80 S. Ct. 1139, 4 L. Ed. 2d 1299 (1960); see DeLucia v. Immigration and Naturalization Service, 370 F.2d 305 (7 Cir.1966), cert. denied 386 U.S. 912, 87 S. Ct. 861, 17 L. Ed. 2d 784 (1967).

Petitioner raises an argument that was not presented nor discussed before the Board or the special inquiry officer; Gambino asserts that his deportation is prohibited by § 241(f) of the Act. 8 U.S.C. § 1251(f). That subsection provides in relevant part:

"The provisions of this section relating to the deportation of aliens within the United States on the ground that they are excludable at the time of entry as aliens who have sought to procure * * * entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen * * *."

Although we would not normally allow the raising of a new objection to the Board's order at this stage in the proceedings, cf. Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 67 S. Ct. 245, 91 L. Ed. 136 (1946), whether stowaways are included within those who sought to procure entry by means of "fraud" in the meaning of this subsection has not been determined. Since the subsection in question is directed at preventing great hardships upon families, deportation is such a drastic order considering Gambino's age, health, length of residence in this country and familial ties here, and since other stowaways, long time residents with families here may face a similar determination, we feel that the issue raised should not be summarily dismissed despite its late appearance in these proceedings. We have therefore considered the question and have concluded that section 241(f) was not intended by the Congress to apply to those who entered as stowaways.*fn1

Section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a), lists thirty-one classes of excludable aliens,*fn2 including:

(18) Aliens who are stowaways;

(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.

Section 241(f), 8 U.S.C. § 1251(f), which creates an exception from deportation for aliens "otherwise admissible" and having certain family ties with persons lawfully in this country, applies only to the deportation of aliens

on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United ...

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