Opinion · United States Board of Immigration Appeals

IN THE MATTER OF S----, 3 IN Dec. 83 (BIA 1949)

IN THE MATTER OF S----. In DEPORTATION Proceedings., 3 I. & N. Dec. 83 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1949)

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1949-08-26
Topic: general

IN THE MATTER OF S----, 3 IN Dec. 83 (BIA 1949) IN THE MATTER OF S----. In DEPORTATION Proceedings. A-9635850Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Central Office November 18, 1947Decided by Board June 9, 1948Decided by Board August 26, 1949 Previous arrest and deportation — Sole ground, "subsequent to entry he became a member of a proscribed organization in violation of the act of October 16, 1918, as amended June 5, 1920" — Effect of interpretation of such ground favorable to alien after such order and warrant of deportation executed — Sustainability of charge, in later warrant proceedings, of "No permission to reapply, after previous arrest and deportation" — Act of 1929, as amended-(See 3 IN Dec. 605, 818.) — Sustainability of "no immigration visa" charge where last admitted as a seaman under section 3 (5) of the Immigration Act of 1924 — Section 1 (c) of the act of March 4, 1929, as amended. (Matter of S----, 56158/11, 2 IN Dec. 12).

Citator

UpLaw has not yet analyzed IN THE MATTER OF S----, 3 IN Dec. 83 (BIA 1949). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF S----,3 IN Dec. 83(BIA 1949)

IN THE MATTER OF S----. In DEPORTATION Proceedings.

A-9635850

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by Central Office November 18, 1947

Decided by Board June 9, 1948

Decided by Board August 26, 1949

Previous arrest and deportation — Sole ground, "subsequent toentry he became a member of a proscribed organization inviolation of the act of October 16, 1918, as amended June 5,1920" — Effect of interpretation of such ground favorable toalienaftersuch order and warrant of deportation executed— Sustainability of charge, in later warrant proceedings, of"No permission to reapply, after previous arrest anddeportation" — Act of 1929, as amended-(See3 IN Dec. 605,818.) — Sustainability of "no immigration visa" chargewhere last admitted as a seaman under section 3 (5) of theImmigration Act of 1924 — Section 1 (c) of the act of March 4,1929, as amended.(Matter of S----,56158/11,2 IN Dec. 12).

(1) An executed order and warrant of deportation based solely on the charge of membership after entry in a proscribed organization in violation of the act of October 16, 1918, as amended June 5, 1920, will not be set aside because of subsequent interpretation as to such charge favorable to the alien.

(2) In later warrant proceedings, the charge of "No permission to reapply, after previous arrest and deportation" under the act of March 2, 1929, as amended, will be sustained.

(3) An alien seaman, admitted as such under section 3 (5) of the Immigration Act of 1924, must be deemed an immigrant at time of entry after previous arrest and deportation where he has not received permission to reapply, in view of the provisions of section 1 (c) of the act of March 2, 1929, as amended, and the charge of "no immigration visa" is sustainable in such a case.

CHARGES:

Warrant: Act of 1929 — Previously arrested and deported — no permission to reapply.

Act of 1918 — Member, prior to entry, of an organization that believes in the overthrow, by force or violence, of the Government of the United States.

Lodged: Act of 1924 — No immigration visa.

Act of 1917 — Admits crime prior to entry, to wit: Theft and transportation of automobile from Dubuque, Iowa to San Francisco, Calif.; and larceny.

Act of 1917 — Convicted of crime prior to entry, to wit: Petit theft; theft and transportation of automobile from Dubuque, Iowa to San Francisco, Calif.; and larceny.Page 84

BEFORE THE CENTRAL OFFICE

Discussion:This record relates to a 45-year-old male, a native and citizen of Sweden, who last entered the United States at the port of Boston, Mass. on September 26, 1945, as a member of the crew ex M.S.Krageholm,at which time he was admitted as a bona fide alien seaman for a period of his vessel's stay in port, and in no event to exceed 29 days. He was reported as a deserting seaman on September 29, 1945. The respondent testified that at the time of his last entry, it was his intention to reship within the period for which admitted, but that he decided to get married and subsequently determined to remain in this country.

The alien first entered the United States at the port of New York on May 30, 1920, as a passenger ex S.S.Stockholm,at which time he was admitted for permanent residence. He remained in the United States until December 19, 1936, at which time he was deported via the port of Galveston, Tex., aboard the S.S.Aquarius,pursuant to a warrant of deportation dated November 15, 1936. The respondent identified the record of this prior arrest and deportation as relating to him. The charge upon which the alien was arrested and deported in 1936 was a violation of the act of October 16, 1918, as amended by the act of June 5, 1920, in that, after entry, he became a member of an organization, association, society, or group, that believes in, advises, advocates, and teaches the overthrow, by force or violence, of the Government of the United States. The respondent testified that subsequent to his deportation and prior to his last entry, he did not obtain permission to reapply for admission to the United States.

Following his deportation in 1936, the alien returned to the United States in 1941 as a member of a crew arriving at the port of Jacksonville, Fla. He stated that following his 1941 arrival, he continued to sail in and out of ports of the United States to foreign countries until 1944 when, because of the war, he was unable to return to the United States.

A review of the evidence of record of the 1936 deportation proceedings indicates that the charge stated in the warrant of arrest dated September 14, 1936, was supported by the alien's admission that he was a member of the Communist Party of the United States of America for a period of 4 months in 1933; that he was a member of District No. 13; that he distributed party literature; and the introduction into the record of the following Communist publications which were held sufficient to establish that the Communist Party believed in, and advocated the overthrow, by force or violence, of the Government of the United States: "The Communist Manifesto"; "Program of the Communist International"; and "Why Communism?".Page 85

Although he clearly admitted membership in the Communist Party in his testimony of August 11, 1936 and October 20, 1936, in the instant proceedings he testified that be believed that the party he joined in 1933 was not the Communist Party, but the "League Against War and Fascism." It is to be noted that nowhere in the proceedings held in 1936 did the respondent express any doubt as the name of the party to which he belonged in 1933. His testimony in 1936, only 3 years following his party membership, should be given greater weight than his present testimony, 14 years following the event. "The Communist Manifesto" and "Why Communism?" were incorporated into the present record as exhibits 11 and 12. The publication "Program of the Communist International" not being presently available to the Presiding Inspector was not incorporated into the present record except by reference to its introduction during the 1936 proceeding.

The warrant of arrest, dated September 14, 1936, was issued and served some 3 years following the termination of the alien's membership in the Communist Party. Subsequent to the arrest and deportation of the respondent, the Supreme Court of the United States inKesslerv.Strecker,307 U.S. 22(1939), held that section 2 of the act of October 16, 1918 did not subject an alien to deportation where he was not a member of a proscribed organization at the time of the institution of deportation proceedings. Since this subject's membership in the Communist Party has ceased prior to the issuance and service of the warrant of arrest, under the authority ofKesslerv.Strecker, supra,he should not have been arrested and deported from the United States. The question to be determined is what effect the subsequent Supreme Court decision had on this alien's prior arrest and deportation.

InDaskaloffv.Zurbrick,103 F. (2d) 579(C.C.A. 6th, 1939), the Court stated:

If there was no evidence to support the charge or if there was an erroneous application of law, the prior determination of deportability may be set aside.

In Matter of F----,56172/294 (1944), the alien had been previously excluded in 1931 as one entering for an immoral purpose. Under the Supreme Court decision rendered in 1934, inHansenv.Haff,291 U.S. 559, the alien had been improperly excluded in 1931. The excludable charge before the Board in 1944 was that the alien had previously been excluded and deported as entering for an immoral purpose. The Board of Immigration Appeals held:

The finding of the Board of Special Inquiry in 1931 that the appellant was inadmissible as entering for an immoral purpose was erroneous as a matter of law. The exclusion on the basis of that finding is, therefore, without effect. It follows that the ground of inadmissibility now urged cannot be sustained.

Page 86In Matter of F----,56232/705 (1947), a Board of Special Inquiry had excluded the alien on the ground that he was inadmissible under the act of 1929 in that he had been previously arrested and deported and sought to reenter within 1 year. The prior arrest and deportation occurred in 1920 and was predicated on four charges, the first three dealing with the immoral class, and the last with entering without inspection. The Commissioner, in a decision rendered August 4, 1947, held that the Supreme Court decision rendered inHansenv.Haff, supra,in 1934, would have precluded the alien's prior deportation. He held that the prior deportation was, therefore, incorrect as a matter of law and should be set aside insofar as the immoral charges were concerned.In Matter of S---- Q----,A-6388210 (1947), the alien had been excluded by a Board of Special Inquiry on the ground that she had previously been arrested and deported and had no permission to reapply, and on the further ground that she had been previously arrested and deported as a prostitute. The Board of Immigration Appeals held:

The findings of deportability made upon the basis of the 1929 deportation hearing are not, of course, binding upon us in this proceeding. We are free to examine the 1928 hearing record to ascertain whether or not the alien's prior deportation was lawful. If there was no evidence to support the warrant charges, or if there was an erroneous application of law, the prior determination of deportability may be set aside.

In finding the alien subject to deportation as a prostitute in 1928, the immigration authorities improperly applied the rule of law set forth in theMittlercase (U.S. ex rel. Mittler v. Curran,8 F. (2d) 355,356(1925)). On the basis of theDaskaloffcase, we must set aside the 1928 deportation.

In Matter of M----,56019/547 (1943), deportation was sought to be predicated on the alien's prior arrest and deportation. He had been arrested and deported on April 11, 1940 under the act of 1917 in that he had been convicted within 5 years after entry of a crime involving moral turpitude, to wit, possession of burglar's tools.

Prior to his deportation the Circuit Court of Appeals inU.S.ex rel. Guarinov.Uhl,107 F. (2d) 399(C.C.A. 2d, 1939), had held that the mere possession of burglar's tools was not an offense involving moral turpitude, and that it became such an offense only if it was intended to use those tools in the commission of an offense involving moral turpitude. The Board of Immigration Appeals held:

When the respondent was deported in April 1940, theGuarinocase,supra,had been decided and that decision was considered the law. Accordingly, his deportation at that time on a charge considered then to be invalid was clearly erroneous. To sustain the present deportation charges, based on the act of March 4, 1929, as amended, would be only continuing this error. There is no reason why this Board cannot take steps in these proceedings to correct a past error. Such action, we feel, is not contrary to the well-established principlePage 87that judicial decrees or judgments may not be collaterally attacked. In this way, substantial justice will be accomplished, and more especially so under the circumstances of this case where the alien is already in the United States and his deportation is sought, on a ground based on a past mistake. We shall, therefore, not sustain those charges.

In Matter of N----,A-5153562 (1946), the alien was sought to be deported on the ground that he reentered after having been arrested and deported as a member of a proscribed organization. The prior arrest and deportation had occurred January 22, 1921. The alien reentered the United States November 25, 1922. The Board of Immigration Appeals held that under present standards they would be inclined to say that the evidence in the prior deportation record was not convincing enough to support the warrant charge therein involved. Since there was some evidence upon which to support the charge and since there was no erroneous application of law, they permitted the prior arrest and deportation to stand, but authorized voluntary departure, preexamination, permission to reapply and the seventh proviso.

From all of the cases above set forth, it is apparent that it matters not at all whether the erroneous application of law be predicated on a preexisting legal determination as in theS----Q----andM----cases,supra,or on a legal determination made subsequent to the prior arrest and deportation as in theF----andF----cases,supra.The true test is the one enunciated inDaskaloffv.Zurbrick, supra;namely, where there is no evidence to support the charge or if there was an erroneous application of law, the prior determination of deportability may be set aside.

Accordingly, insofar as the instant proceedings are concerned, the 1936 deportation, being predicated on what proved to be an erroneous application of law, will be considered as not having occurred.

The prior arrest and deportation being disregarded, the charge stated in the warrant of arrest that the alien obtained no permission to reapply following a prior arrest and deportation cannot be sustained.

Although the respondent was admitted to the United States at the time of his last entry on September 26, 1945 as an alien seaman and a record of such entry exists, the Presiding Inspector held the respondent to have been an immigrant at the time of his last entry since under section (c) of the act of March 4, 1929 andMatter of S----,56168/11 (1944),2 IN Dec. 12, the respondent could not have been a nonimmigrant under section 3 (5) of the Immigration Act of 1924. This view is predicated, however, on the respondent's prior arrest and deportation. Since we have held that such prior arrest and deportation will be disregarded, the respondent was not precluded from being a bona fide alien seaman at the time of his last entry, as concluded by the Presiding Inspector. Accordingly, the charge thatPage 88the respondent was an immigrant at the time of his last entry and not in possession of an immigration visa cannot be sustained.

The respondent was convicted on June 18, 1932 in the municipal court, San Francisco, Calif., of the crime of petit theft, committed by him June 17, 1932 under the name ofD---- S----.The respondent identified this record of conviction as relating to him. The offense of petit theft is one involving moral turpitude.

The respondent was convicted on August 28, 1934, in the municipal court, Chicago, Ill., upon his plea of guilty of the crime of larceny in that on August 25, 1934, he did steal, take, and carry away with intent to steal two suits of men's clothing. The respondent identified the record of this conviction as relating to him. The offense of larceny is one involving moral turpitude.

The respondent was convicted in the United States District Court, Northern District of California, Southern Division, on September 21, 1935, upon his plea of guilty to an indictment charging him with a violation of section 408, title 18, United States Code, in that on or about August 3, 1935, he did knowingly, unlawfully, and feloniously transport and cause to be transported a motor vehicle from the City of Dubuque, Iowa, to San Francisco, Calif., with knowledge that said motor vehicle had theretofore been stolen. The respondent identified this record of conviction as relating to him. The offense of which the alien was convicted is one involving moral turpitude.

The criminal charges lodged against the respondent were properly determined by a Presiding Inspector since such charges are made independent grounds for deportation by section 19 of the 1917 act (Matter of L----,56052/531 (1941)).

The warrant of arrest sets forth an additional ground for the alien's deportation predicated on the act of October 16, 1918, as amended, in that, "he is found to have been, prior to entry, a member of the following class, set forth in section 1 of said act: An alien who is a member of an organization, association, society, or group that believes in the overthrow, by force or violence, of the Government of the United States." From the evidence of record, it is apparent that this charge is sought to be predicated on the alien's alleged membership in the Communist Party of the United States of America.

To sustain the charge under the 1918 act, it is necessary to establish that the respondent was a member of the Communist Party of the United States of America and that that organization believed in the overthrow, by force or violence, of the Government of the United States during the period of the alien's membership. The respondent presently denies membership in the Communist Party of the United States of America. In view of the respondent's deportability on the criminal charges set forth above, there is no need at this time to determine whether the evidence of record supports a finding of deportabilityPage 89on the 1918 charge. Accordingly, the alien's deportation will not be predicated on the act of October 16, 1918, as amended.

The respondent's deportation will be predicated solely on the criminal charges lodged during the course of the hearing.Findings of Fact:Upon the basis of all the evidence presented, it is found:

(1) That the respondent is an alien, a native and citizen of Sweden;

(2) That the respondent last entered the United States at the port of Boston, Mass., on September 26, 1945, as a member of the crew ex M.S.Krageholmfrom which vessel he subsequently deserted;

(3) That the respondent, at the time of his last entry, did not intend to remain in the United States;

(4) That the respondent was previously arrested and deported from the United States to Sweden on December 19, 1936 via the port of Galveston, Tex., pursuant to a warrant of deportation dated November 15, 1936;

(5) That the warrant of arrest issued in the prior deportation proceedings was dated September 14, 1936, and contained but one charge: The act of October 16, 1918, as amended by the act of June 5, 1920, in that after entry, he became a member of one or more of the classes of aliens enumerated in section 1 of the aforementioned act, as amended, to wit: aliens who are members of or affiliated with an organization, association, society, or group that believes in, advocates, and teaches the overthrow, by force or violence, of the Government of the United States;

(6) That the evidence of record in the 1936 deportation proceeding indicates that the respondent had terminated his membership in the proscribed organization approximately 3 years prior to the service of the warrant of arrest;

(7) That subsequent to his prior arrest and deportation, the respondent did not obtain permission to reapply for admission to the United States;

(8) That the respondent was convicted on June 18, 1932, in the municipal court, San Francisco, Calif., of the crime of petit theft committed by him, June 17, 1932;

(9) That the respondent was convicted on August 28, 1934, in the municipal court, Chicago, Ill., upon his plea of guilty to a charge of larceny, committed by him, August 25, 1934;

(10) That the respondent was convicted on September 21, 1935, in the United States District Court for the Northern District of California, Southern Division, upon his plea of guilty toPage 90an indictment charging him with the unlawful, felonious transportation of a motor vehicle in interstate commerce with knowledge that the said motor vehicle had theretofore been stolen.

Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under the decision of the United States Supreme Court inKesslerv.Strecker,307 U.S. 22(1939), the respondent's prior arrest and deportation were predicated on an erroneous application of law;

(2) That at the time of the respondent's last entry in the United States on September 26, 1945, he was not precluded by the act of March 4, 1929, from being admitted as a bona fide nonimmigrant alien seaman under section 3 (5) of the Immigration Act of 1924;

(3) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Transportation of stolen automobile from Dubuque, Iowa to San Francisco, Calif.; and larceny;

(4) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the grounds that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Petit theft; transportation of stolen automobile from Dubuque, Iowa to San Francisco, Calif.; and larceny;

(5) That under the act approved March 4, 1929, as amended, and section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he entered in violation of section 1 (a) of said act of March 4, 1929, being an alien who had been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission;

(6) That under section 2 of the act of October 16, 1918, as amended, the respondent is not subject to deportation on the ground that he is found to have been, prior to entry, a member of the following class, set forth in section 1 of said act:

An alien who is a member of an organization, association, society, or group, that believes in the overthrow, by force or violence, of the Government of the United States;

(7) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is not subject to deportation on the ground that at the time of entry, he was an immigrant not in possessionPage 91of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;

(8) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Sweden, at Government expense.

Other Factors:The criminal charges upon which deportation is predicated place the subject within a class of persons enumerated in section 19 (d) of the Immigration Act of 1917, as amended, so as to preclude him from consideration for the discretionary relief set forth in section 19 (c) of that act except in conjunction with the seventh proviso. The respondent has requested relief from deportation by the exercise of the seventh proviso to section 3 of the Immigration Act of 1917.

The respondent has been married three times. He was first married in San Francisco, Calif., in October 1922. Of this first marriage, there are three children, all of whom are now apparently self-supporting. He testified that his first marriage terminated by divorce. His second marriage occurred in Sweden during 1940. He testified that he lived with that wife for a period of 2 months, and that such marriage also terminated by divorce. He is presently married to a naturalized citizen of the United States, such marriage having occurred November 10, 1945. There are no children of his second and third marriages.

The alien is employed as a carpenter, deriving an income of about $80 weekly. His assets consist of $450 in cash and an automobile. His present wife testified that the subject's deportation would deprive her of her means of support. She stated that if he were deported, she would be required to get a job. She is physically capable of working.

In addition to the criminal offenses previously discussed herein, the respondent was convicted in the municipal court, San Francisco, Calif., on September 17, 1936, upon his plea of guilty to the unlawful possession of a pistol, a felony, which offense was committed by him, August 4, 1936. He identified the record of this conviction as relating to him. The subject presented several witnesses and affidavits attesting to his good moral character and to his lack of pro — Communist tendencies.

The respondent remained outside of the United States from 1936 to 1941. From 1941 to 1944, his presence in this country was only in pursuance of his calling as a seaman. The conclusion is warranted, therefore, that at the time of his last entry on September 26, 1945, he was not returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years so as to warrant the exercise of the seventh provisonunc pro tunc.Nor does the alien have 7 years consecutive domicile in the United States at the present time, so as to warrant the advance exercise of the seventh proviso.Page 92Recommendation:It is recommended that the alien be deported to Sweden, at Government expense, on the following charges:

The act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Transportation of stolen automobile from Dubuque, Iowa to San Francisco, Calif.; and larceny.

The act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Petit theft; transportation of stolen automobile from Dubuque, Iowa to San Francisco, Calif.; and larceny.

So ordered.

BEFORE THE BOARD

(June 9, 1948)

Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.

BEFORE THE BOARD

(August 26, 1949)

Discussion:This case is before us on motion of counsel to reconsider an order affirmed by this Board, June 9, 1948, providing for the respondent's deportation to Sweden on criminal charges laid under the act of 1917, to wit, that he admits and has been convicted of a felony or other misdeameanor involving moral turpitude prior to entry into the United States, to wit, petit theft, transportation of stolen automobile, and larceny. Counsel by way of brief urges that the findings of the Acting Commissioner have no foundation in law or in fact and that the warrant of deportation based thereon has been issued in contravention of law.

The respondent, a native and citizen of Sweden, was admitted to the United States for permanent residence on May 30, 1920. He resided in the United States until his deportation on December 19, 1936, pursuant to a warrant charging a violation of the act of October 16, 1918, as amended by the act of June 5, 1920, in that subsequent to entry he became a member of an organization, association, society, or group, that believes in, advises, advocates, and teaches the overthrow, by force or violence, of the Government of the United States. The respondent last entered the United States at the port of Boston, Mass., on September 26, 1945, and was admitted as a bona fide seaman for a period not to exceed 29 days. He was apprehended under a warrant of arrest dated April 17, 1947, charging that he was subject to deportation under the act of 1929 in that he had been previously arrested and deported and had not been granted permission to reapply for admission, and that he last entered in violation of thePage 93act of 1918, as amended, in that prior to entry he had been a member of an organization that believes in the overthrow by force or violence of the Government of the United States. During hearings held under the warrant of arrest, the criminal charges referred to above were lodged, together with a charge laid under the act of 1924 in that he last entered as an immigrant without an immigration visa.

Counsel takes the position that the criminal charges referred to above cannot be sustained as a matter of law because there has been no new entry into the United States subsequent to the commission of said crime. Counsel reasons that following the arrest and deportation of the respondent in 1936 for violation of the 1918 act the Supreme Court in the case ofKesslerv.Strecker,307 U.S. 22(1939), held that section 2 of this act did not subject an alien to deportation where he was not a member of a proscribed organization at the time of the institution of deportation proceedings,¹and that since the respondent's deportation in the first instance was predicated upon an erroneous application of the law, his departure was involuntary and he has constructively remained in the United States although physically absent and that since the respondent departed under compulsion, his return should not be considered a new entry within the meaning of the 1917 act (citingValentiv.Karmuth,1 F. Supp. 370, D.C.N.D.).

When the case was originally considered by this Board on June 9, 1948, we did not prepare an opinion but dismissed the respondent's appeal from the decision of the Acting Commissioner by entering a formal order. By so doing we approved only the deportation order entered by the Acting Commissioner and not necessarily all of the reasoning advanced by him. As an example, we are not in accord with that portion of the Acting Commissioner's opinion wherein he reasons that insofar as the instant proceedings are concerned, the 1936 deportation, "being predicated on what proved to be an erroneous application of law," will be considered as not having occurred.

We note that in reaching the above conclusion the Acting Commissioner relies primarily on the case ofDaskaloffv.Zurbrick,103 F. (2d) 579, C.C.A. 6, May 1939. In that case the court, at page 580, said:

There is evidence upon which the order of deportation could reasonably have been predicated, and it does not appear that there was the application of an erroneous rule of law. Under these circumstances the court is without power to set aside the determination of the Secretary of Labor (citing cases). The decision of the Secretary of Labor in these proceedings is final (titlePage 948, U.S.C. 155), and the alien cannot in this habeas corpus proceeding collaterally attach the validity of the prior proceedings.

In the 1936 case there was ample evidence upon which the order of deportation could reasonably have been predicated. Furthermore, the respondent's deportation in 1936 was in accordance with judicial interpretation of the 1918 act then prevailing.²It was not an "erroneous application of law" at the time. The case ofKesslerv.Strecker(supra) was first considered by the Circuit Court of Appeals, Fifth Circuit, during April of 1938. The Supreme Court during April of 1939 rendered its opinion wherein it expressly disapproved of the interpretation of the 1918 act then advocated by the Circuit Court of Appeals of the Second Circuit and followed administratively. Since the controlling decision of the Supreme Court, referred to above, was rendered subsequent to the entry and execution of the 1936 deportation order, we take the position that said order and warrant of deportation predicated thereon were legally correct when entered and executed. Accordingly, we find no legal deficiency insofar as respondent's last entry into the United States during 1945 is concerned. A fortiori, the respondent is deportable under the act of 1929 as one previously arrested and deported with no permission to reapply for admission.

The respondent was last admitted to the United States as a bona fide seaman for a period not to exceed 29 days. Where an alien seaman has been admitted under section 3 (5) and section 15 of the Immigration Act of 1924 in pursuit of his calling and had been previously arrested and deported, section 1 (c) of the act of March 4, 1929, as amended, controls, inasmuch as seaman are not included in that portion of the 1924 act dealing with nonimmigrants. Accordingly, the respondent's admissibility under the 1924 act would depend upon his presentation of an immigration visa. (Matter of S----,56168/11, January 19, 1944,2 IN Dec. 12). The lodged charge that the respondent last entered as an immigrant without an immigration visa is also sustained.

The motion will be denied and the outstanding order and warrant of deportation will be amended to conform with the foregoing opinion.Order:It is directed that the motion be and the same is hereby denied.It is further directedthat the order entered November 18, 1947, and affirmed by this Board on June 9, 1948, is hereby amended to provide for the alien's deportation under the act of March 4, 1929, as amended, and the act of February 5, 1917, in that he entered in violation of section 1 (a) of the said act of March 4, 1929, being an alien who hadPage 95been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission, and also for his deportation under sections 13 and 14 of the Immigration Act of 1924 in that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder, in addition to the criminal charges set forth in the said order of November 18, 1947.Page 96

Former membership was held not to be a ground of deportation. The warrant of arrest was issued September 14, 1936, and served some three years following the termination of the respondent's alleged membership in the Communist Party. ↩
U.S. ex rel. Yokinenv.The Commissioner,57 F. (2d) 707(C.C.A. 2d, April 1932);U.S. ex rel. Mannistov.Reimer,77 F. (2d) 1021 (C.C.A. 2d, May 1935). ↩