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GANDUXE Y MARINO v. MURFF

March 28, 1959

Enrique Esteban GANDUXE y MARINO, Plaintiff,
v.
John L. MURFF, District Director of the Immigration and Naturalization Service for the New York District, Defendant



The opinion of the court was delivered by: DIMOCK

This is an action for declaratory judgment pursuant to section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, upon the conclusion of administrative proceedings, seeking judicial review of the order that plaintiff be deported under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1).

Plaintiff moves for an injunction pendente lite restraining defendant from executing the order of deportation. Defendant cross-moves under Rule 56, F.R.Civ.P., for summary judgment dismissing the complaint.

 Plaintiff is a thirty-year-old alien, a native and citizen of Cuba. His deportation was ordered on the ground that his last entry into the United States was unlawful under section 212(a)(19) of the Immigration and Nationality Act, 66 Stat. 183, 8 U.S.C. § 1182(a)(19), because he had procured a visa by fraud or by wilfully misrepresenting material facts. The alleged misrepresentation was his statement before the Consul at Havana, Cuba, that he had never been arrested or convicted.

 The facts were that, while a visitor to the United States, on November 14, 1953, in New York City, he had been arrested and thereafter convicted in the Magistrate's Court upon his plea of guilty to a violation of section 722, subdivision 8 of the Penal Law of the State of New York, in that, with intent to provoke a breach of the peace, he did loiter at 53rd Street and Third Avenue, for the purpose of inducing men to commit acts against nature or other lewdness. He was fined $ 25 or, in default of payment, was committed to imprisonment in City prison not to exceed ten days.

 Thereafter plaintiff in Havana applied for a visa to permit his entry into the United States for permanent residence. His application was in writing and contained the statement that he had never been arrested or convicted. He obtained the visa and on the strength of it entered the United States at Tampa, Florida, on November 28, 1955 and was admitted for permanent residence.

 On November 16, 1956, the Immigration Service served plaintiff with a warrant of arrest and an order to show cause why he should not be deported. On the previous day, November 15, 1956, plaintiff had been interviewed by an immigration officer and he had then voluntarily made a sworn statement which was recorded in writing and signed. In it he said that he had answered 'never' to the question whether he had ever been arrested or convicted on his application for a visa because he believed that that question referred only to his record in Cuba. At the hearing he changed his story and said that he had not read the question and that no one had read it to him, the word 'never' having been filled in by a typing clerk at the American Embassy upon her referring to papers he had previously submitted to the Consulate.

 The act to which plaintiff pleaded guilty was clearly one involving moral turpitude, United States v. Flores-Rodriguez, 2 Cir., 237 F.2d 405, so that without more plaintiff would have been excludable and deportable. The so-called Sheepherders Act, 68 Stat. 1145, adopted in 1954, 8 U.S.C. § 1182a, however, provided that a first offense should not be the ground for exclusion if it were a misdemeanor classifiable as a petty offense under the provisions of section 1(3) of Title 18 United States Code, 'by reason of the punishment actually imposed'. Section 1(3) of Title 18 defines as a petty offense 'Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $ 500, or both'. Here the punishment was but $ 25 or ten days and thus well within the six months imprisonment and fine of $ 500 which are the limits of the class of petty offense under section 1(3) of Title 18 U.S.C.ode.

 On November 23, 1955, the date plaintiff submitted his application for a visa to the Vice Consul in Havana, Cuba, section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) stated:

 'Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

 (4) Aliens afflicted with psychopathic personality * * *

 (9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense) * * *

 (13) Aliens coming to the United States to engage in any immoral sexual act;

 (15) Aliens who, in the opinion of the consular officer at the time of application for a visa, * * * are likely at any time to become public charges;

 (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 ...


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