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Gagliano v. Immigration and Naturalization Service

decided: December 15, 1965.


Waterman, Friendly and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Consolidated for consideration are two proceedings, one an appeal from an order of the United States District Court for the Southern District of New York, Bonsal, D. J., dismissing appellant Giuseppe Gagliano's petition for a writ of habeas corpus, and the other a petition to review an order of the Board of Immigration Appeals dismissing appellant's motion to reopen deportation proceedings that had been successfully instituted against him. Our principal concern is with the question of statutory construction with respect to Section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254.*fn1 The threshold issue originally posed was whether Section 244, which specifically excludes from its coverage aliens who entered the United States as crewmen, is applicable to an alien such as Gagliano who originally entered the United States as a crewman, was deported once for the commission of a Section 241(a) (11), 8 U.S.C. § 1251(a) (11) deportable offense,*fn2 subsequently unlawfully reentered the country as a stowaway, and is currently subject to an order of deportation resulting from the reinstatement of the first order. This question has now been resolved, however. The amendment of the Act effective December 1, 1965 removed the bar to relief in the case of crewmen who entered before July 1, 1964.

We therefore reach the question whether Gagliano comes within the scope of subsection (a) (1) or (a) (2) of Section 244 since each subsection imposes different conditions which the deportable alien must satisfy before he is entitled to apply for relief by way of suspension. In view of the fact that appellant's current deportation order is grounded on the original deportable offense, one of the grounds specifically enumerated in subsection (a) (2), and because the two subsections are mutually exclusive, we hold that subsection (a) (1) is inapplicable to Gagliano and that he comes under subsection (a) (2). We further hold the District Court's ruling correct that appellant's twenty-eight years continuous residence in this country following the commission of the 241(a) (11) deportable offense does not satisfy the ten year residence requirement under subsection (a) (2), for the ten year period commences to run from the time that he committed the last deportable offense for which deportation is sought. The District Court's denial of appellant's petition for a writ of habeas corpus is accordingly affirmed.

We also agree with the Board's finding, largely based on appellant's own testimony, that appellant reentered the United States in 1958 thus making him ineligible in any case for relief under subsection (a) (1) since that subsection requires seven years continuous residence in this country immediately prior to the making of the application. Appellant, in moving the Board to reopen the deportation proceedings, contended simply that he had been present in the United States since 1957 and that accordingly he was entitled to apply for the discretionary relief afforded by (a) (1); the Board correctly predicated its refusal to grant the motion on appellant's failure to produce some concrete documentary evidence to that effect. We therefore dismiss appellant's petition for review of the Board order, noting also that since subsection (a) (2) is applicable to the exclusion of (a) (1), his application to the Board under (a) (1) would have been faulty in any event.


Gagliano first gained entry to this country in 1921 at Boston, Massachusetts as a crewman on a foreign freighter. He continuously resided here, raising a family in the ensuing years, until 1955 when he was deported for having been convicted in 1927 of unlawfully selling narcotics, a deportable offense under Section 241(a) (11). During his thirty-four years of residence here he was arrested on three other occasions; twice the charges were dropped, and once he was convicted and later pardoned. In 1958 he reentered the United States illegally as a stowaway and successfully eluded the authorities until 1961 when he was finally apprehended. Deportation proceedings were immediately commenced against him under Section 242(f), 8 U.S.C. § 1252(f),*fn3 which directs the Attorney General of the United States to reinstate the original deportation order in cases where it is found that the alien has unlawfully entered the United States after having been previously deported pursuant to an order of deportation on one of the grounds specified in Section 242(e), i.e., Section 241(a) (11). A deportation hearing was conducted before a Special Inquiry Officer as is required under Section 242(b), 8 U.S.C. § 1252(b).*fn4 He found the facts to be as alleged by the immigration authorities and reinstated the original deportation order. Gagliano's appeal to the Board of Immigration Appeals was dismissed subject to further consideration if he proved successful in setting aside the narcotics conviction in coram nobis proceedings which he had already instituted, contending that he was innocent and that he neither had nor was offered the assistance of counsel. The Board's dismissal became final when this court affirmed the District Court's denial of the coram nobis application,*fn5 United States v. Castelli, a/k/a Gagliano, 306 F.2d 640 (2 Cir.), and the Supreme Court denied certiorari, 371 U.S. 921, 83 S. Ct. 290, 9 L. Ed. 2d 231 (1962).

In January 1963, the Board denied Gagliano's petition to reopen his deportation case in order that he might apply for suspension of the deportation order pursuant to Section 244(a) (2). The Board grounded its refusal on its finding that appellant did not have the requisite continuous physical residence in the United States to qualify for the discretionary relief afforded by Section 244(a) (2), or 244(a) (1) for that matter. Gagliano then proceeded to bring a declaratory judgment action in the District Court seeking judicial review of the Board's action. The Government moved for summary judgment, and the motion came before District Judge Bryan who reserved judgment pending the Supreme Court's review of Giova v. Rosenberg, 308 F.2d 347 (9 Cir.1962), which posed the question whether Section 106 of the Immigration Act, 8 U.S.C. § 1105a, conferred initial jurisdiction upon the Court of Appeals, to the exclusion of the District Court, to review denials by the Immigration Board. Following the Court's resolution of the issue in favor of jurisdiction in the Court of Appeals, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964), Judge Bryan filed a memorandum decision dismissing Gagliano's action for lack of jurisdiction. Appellant's subsequent petition for review of the Board decision addressed to this court, brought more than six months after the Board denial, was dismissed because the appeal had not been perfected within the six-month time bar specified in Section 106(a) (1), 8 U.S.C. § 1105a(a) (1). Gagliano v. Immigration and Naturalization Service, December 23, 1964, Docket No. 29294. We noted at the time that the harshness of the result -- the delay had been caused by Judge Bryan's reserving decision -- was compensated by the availability to Gagliano of the statutory right to apply for a writ of habeas corpus.

Gagliano then proceeded in two different directions. He filed a petition with the Board to reopen his deportation proceedings, contending that he reentered the United States in January or February 1957 rather than in the fall of 1958 and that accordingly he had satisfied the seven year residence requirement of Section 244(a) (1). As already indicated, the Board found against him on the factual issue; the Board further noted by way of information that the reinstatement of the deportation order is merely a procedural matter under Section 242(f) and that accordingly the ground for deportation remains the commission of the 241(a) (11) offense, rather than the earlier order of deportation. (Thus, the Board inferred that Section 244(a) (1) is inapplicable.)

Gagliano also sought relief in the District Court where he filed a petition for writ of habeas corpus under Section 106(a) (9), 8 U.S.C. § 1105a(a) (9). The District Court, Bonsal, D. J., denied the application, holding that Gagliano did not come within either of the classes provided in subsections (a) (1) or (a) (2) of Section 244. United States ex rel. Gagliano v. Esperdy, 239 F. Supp. 968 (S.D.N.Y.1965). First of all, the court held he did not come within subsection (a) (1) because his narcotics conviction rendered him deportable under a ground enumerated in subsection (a) (2). Secondly, subsection (a) (2) was found to be inapplicable since Gagliano, by illegally reentering the country in 1957 or 1958 as a stowaway, committed an act which constituted a ground for deportation and hence had not satisfied the ten year residence requirement even though he was being deported on the basis of the earlier deportation order. The statutory language "ten years immediately following the commission of an act * * * constituting a ground for deportation" was construed to mean not the specific act upon which the deportation order is grounded but rather any act that would subject the alien to deportation. Alternatively, the court pointed out that subsection (f) of Section 244 provided that the entire section, including subsections (a) (1) and (a) (2), is not applicable to an alien who entered the United States as a crewman and that that was the manner of Gagliano's original entry in 1921.


Authorization for the Attorney General to suspend deportation for certain classes of aliens first became a part of the Immigration Act with the enactment of the Alien Registration Act of 1940, 54 Stat. 670, and was intended to ameliorate the extreme hardships in a large number of deportation cases. Gordon and Rosenfield, Immigration Law and Procedure, § 7.9a (1964). The 1940 amendment required the alien to prove 5 years of good moral character prior to his application and to show that deportation would result in hardship to his family. A further liberalization of the deportation procedure was afforded by a 1948 change which made the suspension process available to aliens who, regardless of family ties, could establish seven years residence in the United States. Act of July 1, 1948, 62 Stat. 1206. However, because of the abuses that were found to have been perpetrated under these liberal provisions, see S.Rep. 1515, 81st Cong., 2d Sess., Congress incorporated substantial revisions of the sections in the Immigration Act of 1952, 66 Stat. 214. Generally, the 1952 Act made "significant changes with respect to the discretionary authority to adjust the status of aliens in this country, either from an illegal status to a legal status or from one legal status to another legal status." 1952 U.S.Code Cong. and Admin.News, at p. 1716.

The largely restrictive changes made in the suspension process under the 1952 Act proved to be unsatisfactory. As one writer commented, "This section [244(a)] is not merely complex; it is also a good example of poor draftsmanship, standing out even in a statute which is not otherwise noted for lucidity." Comment, 61 Mich.L.Rev. 352, 355 (1962). And a member of the Immigration Service added: The statutory scheme "was characterized as a pattern for relief that is complex and sometimes almost incomprehensible, and as so involved that even the technical experts had difficulty in understanding it." Keane, "Changing Concepts in Discretionary Relief," 12 INR 30, 35 (1964). Attesting to the accuracy of this criticism was the fact that in the years immediately following the enactment of the 1952 amendments, the number of private immigration bills, which the suspension provisions were intended to help reduce, greatly increased while the number of aliens granted suspension of deportation showed a marked decrease. See Comment, supra, at 369; 1962 Annual Report of the Immigration and Naturalization Service, 6.

Curative legislation was finally enacted in 1962. Immigration Act of 1962, 76 Stat. 1247. The bill originally was intended to extend the benefits under a procedure known as registry, but was converted to a revision of the suspension system in order to augment the relief available to "certain aliens physically present in the United States." Conf. Report, H.Rep. 2552, 87th Cong., 2d Sess., p. 4, U.S.Code Congressional and Administrative News 1962, p. 4028. See also Gordon and Rosenfield, supra at 764. "The 1962 amendments achieved a much needed simplification, eliminating many of the complexities and obscurities of the statute, reducing from five to two the number of categories it prescribed, and removing some of the obstacles that previously had inhibited the award of relief. However, the need for legislative approval in individual cases is ...

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