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UNITED STATES v. SCHAIER

July 2, 1959

UNITED STATES of America
v.
Hermann SCHAIER, Defendant



The opinion of the court was delivered by: DIMOCK

Defendant moves to dismiss count 2 of the indictment as failing to state a crime. That count charges that defendant, an employee of the Immigration Service, solicited additional fees 'in a proceeding relating to naturalization, citizenship and the registry of aliens, to wit applications of one Paul Melamed, and his wife Danitza Melamed for the adjustment and change of their non-immigrant status in the United States to permanent resident status'. The count cites section 1422 of title 18 U.S.Code.

Defendant says that an adjustment-of-status proceeding is not one relating to naturalization or to citizenship or to the registry of aliens within the meaning of those words as used in section 1422. I hold that it is one relating to the registry of aliens within the meaning of that section.

Section 1422 of title 18 U.S.Code was adopted on June 25, 1948, and still reads in its original form as follows:

 'Whoever knowingly demands, charges, solicits, collects, or receives, or agrees to charge, solicit, collect, or receive any other or additional fees or moneys in proceedings relating to naturalization or citizenship or the registry of aliens beyond the fees and moneys authorized by law, shall be fined not more than $ 5,000 or imprisoned not more than five years, or both.'

 When section 1422 was adopted there was a provision for the registry of aliens in section 328 of the Nationality Act of 1940, 54 Stat. 1151-1152, 8 U.S.C. § 728, which is quoted in the margin. *fn1" Subsection (a) of said section 328 required the Commissioner of Immigration to make 'a registry' of each person arriving in the United States after January 13, 1941, the effective date of the Nationality Act of 1940. Subsection (b) provided that, under certain conditions, such registry might be made of aliens who entered the United States prior to July 1, 1924, which was the effective date of the quota system. Subsection (c) declared: 'For the purposes of the immigration laws * * * an alien, in respect of whom a record of registry has been made as authorized by this section, shall be deemed to have been lawfully admitted to the United States for permanent residence as of the date of such alien's entry.'

 There can be no doubt that proceedings taken to obtain registry of pre-quota immigrant aliens who had entered the United States prior to July 1, 1924, would have been proceedings 'relating to * * * the registry of aliens' within the terms of section 1422 under which defendant is charged.

 Defendant argues that the expression 'registry of aliens' in section 1422, instead of being intended to refer to 'registry' under section 328 of the Nationality Act of 1940, was intended to refer to the compulsory 'registration' of all aliens required by the Act of June 28, 1940, ch. 439, title III, sections 30-39 inclusive, 54 Stat. 673-676, amended by Act of October 13, 1941, ch. 432, 55 Stat. 736, 8 U.S.C. 1946 Ed. §§ 451-460. This not only ignores the difference in the terms 'registry' and 'registration' but ignores the fact that there was no such thing as a proceeding for the compulsory registration of aliens so that section 1422 so construed would have had no field to work in. The argument is without substance.

 In the McCarran-Walter Act of 1952 provision was made for proceedings for adjustment of status such as those in which defendant is alleged to have acted. Our problem is to decide whether these, like proceedings to obtain registry of pre-quota immigrants, are proceedings 'relating to * * * the registry of aliens' for the purposes of the criminal section 1422.

 The provision for adjustment-of-status proceedings is found in section 245 of the McCarran-Walter Act, 66 Stat. 217, 8 U.S.C. § 1255. It provides for the adjustment of the status of an alien lawfully admitted as a non-immigrant to that of an alien lawfully admitted for permanent residence. Subdivision (b) of that section provides that 'the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made.'

 The McCarran-Walter Act, by section 240, 66 Stat. 204, 8 U.S.C. 1230, substituted for subsection (a) of section 328 of the Nationality Act of 1940, a provision that the Attorney General, rather than the Commissioner of Immigration, should cause to be filed 'as a record of admission' the immigrant visa surrendered by the arriving alien. The word 'registry' was no longer used. The filed immigrant visa, which by its terms fixes the immigrant's status, took its place as a 'record'.

 Similarly section 249 of the McCarran-Walter Act, 66 Stat. 219, 8 U.S.C. § 1259, which took the place of subsection (b) of section 328 of the Nationality Act of 1940, permits the Attorney General to make a 'record' of lawful admission for pre-quota immigrants. Here the making of a record was necessary since there would be no immigrant visa to serve as one.

 In a case where there was a newly permitted adjustment of status under the new section 245 of the McCarran-Walter Act there was similarly no immigrant visa so the adjustment-of-status section provided in subdivision (b) that the Attorney General should record the alien's lawful admission for permanent residence.

 In spite of these changes of the word 'registry' to 'record' in the McCarran-Walter Act, the criminal provision, section 1422 of title 18, was left unchanged and the crime that it defines is still defined as soliciting additional fees in proceedings relating to 'the registry of aliens'.

 As stated above, there can be no doubt that, where, under section 328 of the Nationality Act of 1940, a proceeding for the 'registry' of pre-quota immigrants was provided for, that proceeding was one relating to 'the registry of aliens' within the criminal section 1422. Nor can there be doubt that, when the proceeding was changed by the McCarran-Walter Act to one for the 'record' of pre-quota immigrants, the proceeding was one relating to 'the registry of aliens' despite the change of name. In sections 240 and 249 of the McCarran-Walter Act the word 'record' was used as the equivalent of 'registry'. The word 'record' is used in precisely the same context in section 245, the change-of-status section of the McCarran-Walter Act. It must there too be the equivalent of 'registry' for the purposes of the criminal section 1422 which makes it a crime to solicit additional fees in ...


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