United States Ex Rel. Volpe v. Smith

Syllabus.

Carolina at the time of the homicide. Stated otherwise, he should not have been released unless it appeared be- yond reasonable doubt that he was without the State of South Carolina when the alleged offense was committed and, consequently, could not be a fugitive from her justice.

The record discloses only a: conflict of evidence; the re- quirement which we have indicated has not been met; and the challenged judgment must be reversed.

The cause will be remanded to the Supreme Court of North Carolina for further proceedings not inconsistent Reversed. with this opinion.

MR. JUSTICE BRANDEIS and MR. JUSTICE BUTLER are of the opinion that the evidence, while possibly sufficient to sustain, does not require a finding that there is probable cause to believe that the accused was a fugitive from South Carolina, and therefore this court is not warranted in reversing the judgment of the Supreme Court of North Carolina.

No. 724. Argued May 10, 1933.-Decided nay 22, 1933.

1. The crime of counterfeiting obligations of the United States

involves moral turpitude. P. 423.

2. In § 19 of the Immigration Act of February 5, 1917, the provision

that any alien who was convicted, or who admits the commission, "prior to entry," of a crime involving moral turpitude shall be deported, applies to an alien who committed the crime in this country while lawfully here, and who afterwards went abroad and returned. P. 424.

3. The second coming of an alien from a foreign country into the

United States is an entry. P. 425.

422

Opinion of the Court.

4. The fact that an immigration officer to whose custody an alien

was remanded for deportation, in a habeas corpus proceeding, had beep moved to another station, held not to have caused the pro- ceeding to abate, it appearing that he remained attached to the Department of Labor, presumably with authority .to execute the order of deportation, and the question of abatement not having been raised until long after his transfer and after the case had reached this Court. P.'426.

62 F. (2d) 808, affirmed.

CERTIORARi * to review the affirmance of a judgment dismissing a proceeding in habeas corpus.

Mr. John Elliott Byrne, with whom Mr. Frank R. Reid was on the brief, for petitioner.

Mr. Whitney North Seymour, with whom Solicitor Gen- eral Thacher and Messrs. WV. Marvin Smith and Albert

E. Reitzel were on the brief, for respondent.

MR. JUSTICE MCREYNOLDS delivered the opinion of the Court.

In 1906, when sixteen years old, petitioner, Volpe, en-

tered the United States from Italy as an alien. He has resided here continuously since that time, but has remained an alien.

In 1925 he pleaded guilty and was imprisoned under a

charge of counterfeiting obligations of the United States- plainly a crime involving moral turpitude.

During June, 1928, without a passport, he made a brief visit to Cuba. Returning, he landed from an airplane at Key West, Florida, and secured admission by Immigrant Inspector Phillips.

December 15, 1930, Volpe was taken into custody under a warrant issued by the Secretary of Labor which charged him with being unlawfully in this country because "he has been convicted of, or admits the commission of a

*See Table of Cases Reported in this volume.

0pition of the Court.

felony, or other crime or misdemeanor, involving moral turpitude, to-wit: possessing and passing counterfeit U.S. War Savings Stamps, prior to his entry into the United States."

Following a hearing, a warrant of deportation issued and he was taken into custody. Claiming unlawful de- tention, he instituted habeas corpus proceedings in the District Court of the United States at Chicago. That court dismissed the petition and remanded him to the custody of S. D. Smith, District Director of Immigration at Chicago, for deportation. The Circuit Court of Appeals affirmed the judgment [62 F. (2d) 808] and the matter is here by certiorari.

The only substantial point which we need consider is this:-Was the petitioner subject to deportation under the provisions of the Immigration Act of February 5, 1917,

c. 29, 39 Stat. 874, '875, 889, 890, (U.S.C., Title 8, §§ 136;

155, 173) because he reentered the United States from a foreign country after conviction, during permitted resi- dence in the United States, of a crime committed therein which involved moral turpitude? Relevant provisions of the Act of 1917 are in the margin.*

*Sec. 1. That the word "alien" wherever used in this Act shall include any person ndt a native-born or naturalized citizen of the United States; . ..

Sec. 3. That the following classes of aliens shall be excluded from . persons who have been con- admission into the United States: . victed of or admit having committed a felony or other crime or'mis- demeanor involving moral turpitude;

. . .'

.

See. 19. That at.any time within five years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law; any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States; . ..except as hereinafter pro- vided, any alien.who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral, turpitude,

UNITED STATES v. SMITH. 425 422

Opinion of the Court.

Upon this question federal courts have reached diverse views. The cases are cited in the opinion announced be- low in the present cause.

We accept the view that the word "entry"

in the pro- vision of § 19 which directs that "any alien who was con- victed, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude; . . . shall, upon the warrant of the Secretary of Labor, be taken into custody and deported," includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one. And this requires affirmance of the chal- lenged judgment.

The power of Congress to prescribe the terms and con- ditions upon which aliens may enter or remain -in the United States is no longer open to serious question. Tur- ner v. Williams, 194 U.S. 279; Low Wah Suey v. Backus,

225 U.S. 460, 468; Bugajewitz v. Adams, 228 U.S. 585,

591.

That the second coming of an alien from a foreign country into the United States is an entry within the usual acceptation of that word is clear enough from Lewis

v. Frick, 233 U.S. 291; Claussen v. Day, 279 U.S. 398.

An examination of the Immigratioh Act of 1917, we think, reveals nothing sufficient to indicate that Congress in § 19 should have its did not intend the word "entry" ordinary meaning. Aliens who have committed crimes while permitted to remain here may be decidedly more objectionable than persons who have transgressed laws of another country.

committed at any time after entry; . .. any alien who was con- victed, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude; at any time within three years after entry, any alien . . . who enters without inspection, shall, upon the warrant of the Secretary of Labor, be

.

Syllabus.

It may be true that if Volpe had remained within the United States, he could not have been expelled because of his conviction of crime in 1925, more than five years after his original entry; but it does not follow that after In he voluntarily departed he had the right of reentry. sufficiently plain language Congress has declared to the contrary.

With hesitation, the Solicitor General suggested here that possibly the cause had abated, since S. D. Smith is no longer District Director of Immigration at Chicago, where he formerly held the petitioner in custody. The .record indicates that Smith has continued to be an officer in the Department of Labor, although not presently sta- tioned at Chicago. So far as we are advised, under exist- ing regulations, he may carry into effect the order of de- portation. Moreover, the cause was permitted to Proceed without question, as instituted, long after Smith is said to have left Chicago; and the petitioner insists that no. cause has been shown for abatement. The point, we think, lacks merit.

The judgment is Affirmed.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

No. 8. Argued .December 15, 1932.-Decided May 22, 1933.

1. It is improper for the District Court in a receivership case to pass

upon the wisdom and fairness of a plan of reorganization and the rights of non-assenting creditors, without definite, detailed- and authentic information. Held that a decree of approval, made with- out any trustworthy appraisal of assets, or account showing the result of recent operations of the business; without an accurate determination of the number of creditors, the amounts of their re-