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ZITO v. MOUTAL

United States District Court, Northern District of Illinois


March 31, 1959

ANTONIO ZITO
v.
MONTE MOUTAL, ACTING DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, CHICAGO, ILLINOIS.

The opinion of the court was delivered by: Julius J. Hoffman, District Judge.

This is an action to review an order of deportation in which the plaintiff seeks the following relief: (1) a declaration that he is not a deportable alien under the provisions of 8 U.S.C.A. § 1251(a)(4); (2) a declaration that an order for the deportation of plaintiff is null and void; and (3) a mandatory injunction to compel the defendant to present for hearing plaintiff's petition for naturalization. The cause was originally before this court on plaintiff's motion for a preliminary injunction. Upon the defendant's assurance to the court that the plaintiff would not be deported immediately, a decision on the motion was held in abeyance pending the filing of cross-motions for summary judgment. These motions have now been filed, and, for the reasons which follow, I am of the opinion that plaintiff's motion for summary judgment must be granted.

There is no dispute as to the material facts in this case. Plaintiff is an alien who has lived in the United States for approximately 36 years. In 1941 he pleaded guilty to a twelve count indictment which charged conspiracy and eleven substantives violations of the Internal Revenue Act of 1939, 26 U.S.C.A. § 1 et seq., pertaining to distilled spirits. He was sentenced to imprisonment for eight years and fined $12,000. In 1944 plaintiff was released on parole and in 1949 he was discharged from parole.

On October 21, 1954, plaintiff filed with the United States Immigration and Naturalization Service (hereafter "Service") an application to file a petition for naturalization. At that time, and twice thereafter, he informed the Service of his criminal record. After examination, plaintiff's application was granted and, on September 25, 1956, plaintiff filed a petition for naturalization in the United States District Court for the Southern District of Illinois. The petition is still pending in that court.

On November 24, 1957, the Service initiated deportation proceedings against the plaintiff pursuant to 8 U.S.C.A. § 1251(a)(4), which provides for the deportation of any alien

    "* * * who at any time after entry is convicted
  of two crimes involving moral turpitude, not
  arising out of a single scheme of criminal
  misconduct * * *." (Emphasis added.)

Deportation was sought because the plaintiff had been convicted of the offenses stated in counts six and eleven of the indictment, which offenses, according to the Service, did not arise out of a single scheme of criminal misconduct. Count six charged that the plaintiff and others, on September 18, 1940,

    "* * * did unlawfully, knowingly and wilfully
  remove, deposit and conceal goods and
  commodities, to wit, two hundred gallons of
  alcohol, for and in respect whereof a tax was
  then and there imposed, with intent to defraud
  the United States of such tax * * *."

Count eleven charged that the plaintiff and others (the same persons named in count six), on September 9, 1940,

    "* * * (the exact date thereof being to the Grand
  Jurors unknown) * * * did unlawfully, knowingly and
  wilfully remove, deposit and conceal goods and
  commodities, to wit, fifty gallons of non-tax-paid
  alcohol, (the exact amount of said non-tax-paid
  alcohol being to the Grand Jurors unknown), for and
  in respect whereof a tax was then and there
  imposed, with intent to defraud the United States
  of such tax * * *." (Emphasis added.)

Thereafter, a hearing was held before a Special Inquiry Officer. In support of the Service's claim that the plaintiff had been convicted of two offenses not arising out of a single scheme of criminal misconduct, the Examining Officer introduced into evidence a certified copy of the indictment, judgment and commitment. The Service then rested its case. Thereupon, the plaintiff rested his case without presentation of evidence. The remainder of the hearing was devoted to plaintiff's application for discretionary suspension of deportation. After the hearing, the Special Inquiry Officer, in a written opinion, found that the plaintiff had been convicted of two offenses not arising out of a single scheme of criminal misconduct. He denied plaintiff's application for discretionary relief and ordered that the plaintiff be deported. Plaintiff appealed, and the Board of Immigration Appeals (hereafter "Board") sustained the order.

In his complaint, plaintiff asserts that he is not deportable because (1) count six of the indictment did not allege an offense; (2) assuming that count six did allege an offense, that offense and the one alleged in count eleven arose out of a single scheme of criminal misconduct; and (3) he did not receive a full and fair hearing on his application for discretionary suspension of deportation. With regard to this last reason, plaintiff contends that the decisions of the Special Inquiry Officer and the Board are ambiguous in that it cannot be determined whether the basis for denial of relief was statutory ineligibility or exercise of discretion. Plaintiff states that he will file with the Board a motion for reconsideration and clarification of the opinions. Accordingly, I conclude that the issue of full and fair hearing is not before the court at this time and it will not be considered further in this memorandum.

It has already been noted that this case is presented to the court on cross-motions for summary judgment. In his motion and in the briefs submitted in support thereof, plaintiff does not reiterate the assertion that count six is fatally defective. He argues only that the offenses upon which the order of deportation was based arose out of a single scheme of criminal misconduct. In order fully to evaluate this argument, it is necessary to set out the substance of the entire indictment:

                                                 Number of    Section of
           Date of             Substance          Gallons    I.R.C. 1939
Count      Offense             of Offense        of Alcohol    Violated

  1     Sept. 18, 1940      Unlawful Possession      200       2803(a)
  2          Same                  Same               20       2803(a)
  3          Same           Removal to Place         200       2913
                            Other Than Bonded
                            Warehouse
  4          Same           Concealment of           200       2913
                            Spirits Unlawfully
                            Removed
  5          Same                  Same               20       2913
  6     Sept. 18, 1940      Removal, Deposit &       200       3321
                            Concealment with
                            Intent to Defraud
  7     July 15, 1940*fn*  Unlawful Possession       50*fn*  2803(a)
  8     Aug. 15, 1940*fn*         Same               50*fn*  2803(a)
  9     Sept. 9, 1940*fn*  Unlawful
                              Transportation          50*fn*  2803(a)
  10        Same*fn*              Same               50*fn*  2803(a)
  11        Same*fn*       Removal, Deposit &        50*fn*  3321
                            Concealment with
                            Intent to Defraud
  12                           Conspiracy


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