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.
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* ...