IVIATI ER OF C 

In DEPORTATION Proceedings 

A-12143440 

Decided by Board January 2, 1962 

Deportability—Sections 241(a)(4) and 241(b) of 1952 Act—Effect of U.S. citizenship at time of conviction—Retroactive effect of denaturalization—Single 

scheme issue—Inference that crimes are unrelated when committed a year 

spark 

(1) Respondent entered the United States as an alien in 1895, was naturalized as a United States citizen in 1925, reentered the United States in 1948, 

was convicted in 1954 of two counts of federal Income tax evasion, and was 

denaturalized in 1959. Held: respondent is deportable under section 241 

(a) (4) of the Act as an alien who after entry (in 1895) has been convicted 

of two crimes involving moral turpitude not arising out of a single scheme 

of criminal misconduct. 

(2) No defense to deportability Iles In contention that respondent was a 

United States citizen rather than an alien on the date of his conviction in 

1954. Section 241(a) (4) of the Act does not require that the offender 

must have had the status of an alien at the time of his conviction. 

(3) No bar to deportability found in the fact that because respondent was 

convicted while he was a citizen he may have been deprived of access to 

the provisions of section 241(b) of the Act permitting a court to make a 

recommendation against deportation within 30 days after passing sentence. 

(4) In view of the retroactive effect of a. denaturalization decree under section 340(a) of the Act, the "relation-back" doctrine may properly be invoiced so that for the purposes of section 241(a) (4) respondent can be 

considered as having been an alien at the time of his conviction. 

(5) Where respondent was convicted in a single trial for filing a fraudulent 

tax return on January 14, 1949 for the calendar year 1948, and on another 

count for filing a fraudulent tax return on March 10, 1950 for the calendar 

year 1949, and where he refused to testify at the deportation hearing and did 

nut viler orobaLive evidence bearing on We issue, Lela Lhe uoimai inference 

that crimes are not related when committed a year apart has not been controverted, and the government has met its burden of proving that the two 

offenses did not arise out of a single scheme of criminal misconduct. 

CHARGES: 

Order: Act of 1952—Section 211(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted 

of two crimes after entry (tax evasion 1954; tax evasion 1954; 

contempt of Congress 1952). 

Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4))—Convicted 

of crime committed within five years of 1948 entry (tax evasion 

524 
committed 1949: tax evasion committed 1950; cornea, of 0.. coogres.s committed 1951). 

Act of 1952—Section 241 (a ) (4 ) IS U.S.C. 1251 ( a ) (4) ]—Convicted 

of two crimes after entry (tax evasion 1954; tax evasion 1954; 

contempt of Congress 1952; contempt of court 1957). 

BEFORE THE BOARD 

DISCUSSION: This is an appeal from the order of the special 

inquiry officer requiring the respondent's deportation on the first 

charge set forth above on the basis of the convictions in 1954 for 

tax evasion. The appeal will be dismissed. 

The respondent, a 70-year-old married male, a native of Italy, 

concedes that he is an alien. These events are relevant. The respondent entered an an alien in 1895. He was naturalized in 1925. 

He returned from Mexico to the United States in 1948. He has the 

following convictions: contempt of Congress in 1952, tax evasion 

in 1954 (two counts), and contempt of court in 1957. His naturalization was revolted in 1959. 

Deportation on the first charge is sought under that portion of 

section 241 (a) (4) of the Immigration and Nationality Act (8 U.S.C. 

1251(a)(4)) which provides: 

(a) Any alien in the United States (including an alien crewman) shall, 

upon the order of the Attorney General, be deported who— 

( 4 ) * * * at any time after entry is convicted of two crimes involving 

moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless or 

whether the convictions were in a single trial. 

Deportation was ordered on the basis of the tax convictions. The 

issues are whether these convictions, to constitute grounds for deportation, had to occur while the respondent was an alien, whether 

the convictions were for crimes involving moral turpitude, and 

whether they arose out of a single scheme. 

The Tax Convictions and Alienage 

This discussion is concerned with one who is an alien but who in 

the past was a citizen and while a citizen was convicted of crime. 

We believe that the precedents hold that if the condition which 

is basis for deportation (0.g., conviction of crimes) is one which 

could occur to either an alien or a citizen, then the nationality status 

of the individual at the time the condition arose is immaterial. 

We believe that the basis for deportation here is a condition which 

could have occurred to either an alien or a citizen. We conclude 

that the nationality status of the respondent at that time was immaterial. The precedents fall into two categories. In the first are 

the cases decided on the basis of the fact, that the ground of deportation is related to the making of an entry and that by definition 

525 
only an alien can make an entry ; therefore, a person who was not 

an alien at the time he came to the United States, had not made 

an entry and there was no need to consider whether he had to be 

an alien later when the deportable ground arose. If, however, the 

individual was an alien at the time of entry or if alienage at the 

time of entry is not a factor because the ground of deportation is 

not related to an entry, the issue as to the necessity of the coexistence• 

of alienage and the occurrence of the ground of deportation requires 

decision, but no defined term dictates the answer.' 

In the situation before us, alienage at the time of entry in 1895 

is conceded.2The situation before us is one concerned not with 

alienage and entry but with the coexistence of alienage and the 

emergence of the ground of deportation. Before we consider this 

group of cases we shall consider the group which concerned entry 

since counsel relies upon such cases. The cases concerned with 

alienage at the time of entry are Barber v. Gonzaleg, 317 U.S. 637 

(1954), and United States ex rel. Brancato v. Lehanann, 239 F.2d 663 

(C.A. 6, 1956). Gonzales, a native of the Philippines, was a national of the United States from the time of his birth until 1946 

when he became an alien. He resided in the United States continuously from the time of his admission in 1930. Convicted of crimes 

in 1941 and in 1950, he was ordered deported in 1951 under that 

portion of section 19(a) of the Immigration Act of 1917 (39 Stat. 

889, as amended, formerly 8 U.S.C. 155(a)) which called for the deportation of an alien "who is hereafter [May 1, 1917] sentenced more 

than once * * * because of conviction in this country of any crime 

involving moral turpitude, committed at any time after entry." 

An entry can be made only by an alien who has voluntarily come 

from a foreign port. Gonzales contended that he had made no 

entry for he had come neither as an alien nor from a foreign port; he 

had come as a national from an insular possession to the mainland. 

The Service contended that he should be considered as if he had been 

an alien coming from a foreign port, because from 1934 to 1946 the 

law provided that for the purpose of the immigration laws Filipinos 

were "considered as if they were aliens." The Court ruled that 

Gonzales was not deportable. The Court held that until 1934 the 

Philippines could not be regarded as foreign; that Gonzales had not 

arrived from foreign; and that there was, therefore, no entry. The 

' In addition to grounds of deportation whore slIPusiz.P is reauired because 

an entry is involved is the ground which by its nature can be met only by 

one who is an alien (e.g., failure to register as an alien, failure to maintain 

status as nonimmigrant (sections 241(a) (5) and (9) of the Act, 8 U.S.C. 

1251) ), but we are not ennee.rned with such a ground. 

It is proper to use the first entry (Banes v. Boyd, 236 17 .2(1 934 (C.A. 9, 

1956); United States ex rel. Belfrale v. Kenton, 131 F. Supp. 570, affd. 224 

F.20 803 (C.A. 2, 1055)). 

526 
Court would not consider Gonzales as if he had made an entry as an: 

alien. This disposition of the case made it unnecessary for the Court 

to rule on the contention that Gonzales had not been an alien in 1941 

at the time of conviction. 

Brancato concerned a native of Italy who had entered the United 

States as an alien in 1914. Naturalized in 1929, he had returned 

from a foreign visit in 1930 and had been convicted of a crime in 

1032. He was denaturalized in 1939. Deportation was ordered under 

that portion of section 19(a) of the Immigration Act of February 

1917, as amended (39 Stat. 889, as amended, formerly 8 U.S.C. 

155(a)), which required the deportation of an alien "who is hereafter [May 1, 1917] sentenced to imprisonment for a term of one 

year or more because of conviction in this country of a crime involv-- 

ing moral turpitude, committed within five years after the entry of 

the alien to the United States." The district court found that Brancato had been properly ordered deported. The district court held 

that the denaturalization was retroactive making Brancato an alien 

at the, time of conviction. As an additional authority, the court cited . United States ex rel. Eichenlaub & Willumeit v. Shaughnessy, 338, 

U.S. 521 (1950) (discussed in detail later). Upon appeal, the circuit 

court (one judge dissenting) reversed the district court on the' 

ground that the law required an entry and since an entry could be 

made only by an alien, the law did not apply to Brancato who had' 

entered as a citizen. Despite the denaturalization, the circuit court. 

refused to indulge, in the fiction that Brancato had been an alien 

at the time of entry. It went on to state that Eichenlaub was not 

applicable to the "general deportation statute" (Immigration Act 

of February 5, 1917) which the court was considering. 

Passing from the cases which turn on the connection between 

"entry" and alienage, we come to those concerned with whether alienage must have existed when the deportation ground arose. United. 

States ex rel. Eichenlaub & Wi.11zimea.t v. Shaughnessy, 338 U.S', 521 

(1950) (4-to-3 decision), concerned two aliens found to be undesirable residents of the United States whose deportation had been ordered 

under the Act of May 10, 1920, which in pertinent part provided: 

That aliens of the following classes, in addition to those for whose expulsion 

from the United States provision is made in the existing law, shall [if found 

undesirable residents] * * * be * * * deported in the manner provided in. 

serum-is 19 and 20 of the Act of February 5. 1917 * * *: 

Ail aliens who since August 1, 1914, have been or may hereafter be convictml of any violation or conspiracy to violate * * [The Espiouage Act of 

June 15, 1917, as amended]. 

Eichenlaub, a native of Germany, became a citizen of the United 

States in 1936. In 1941, he was convicted for violation of the 

Espionage Act of 1917. In 1944, his citizenship was cancelled on 

the ground of fraud in its procurement. Willumeit was naturalized 

527 
in 1931. In 1942, he was convicted of conspiracy to violate the 

Espionage Act of 1917. In 1944, his naturalization was cancelled on 

the ground of fraud in its procurement. 

The Court found the substantial issue was whether the law required the individuals involved to have been aliens at the time they 

were convicted. Refusing to decide whether a retroactive effect 

should be given to the denaturalization orders, the Court states: 

• • • A simpler and equally complete solution lies in the view that the 

Act does not require that the offenders reached by it must have had the 

status of aliens at the time they were convicted. As the Act does not state 

that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have 

been naturalized. The convictions of the relators for designated offenses are 

important conditions precedent to their being found to be undesirable residents. 

Their status as aliens is a necessary further condition of their deportability. 

When both conditions are met and, after hearing, the Attorney General finds 

them to be undesirable residents; of the United States, the Act is satisfied. 

• s ■ • 

-The recognized purpose of the Act was deportation. It is difficult to imagine 

.,a reason which would have made it natural or appropriate for Congress to 

authorize the Attorney General to pass upon the undesirability and deportability of an alien, never naturalized, who had been convicted of espionage, 

but would prohibit the Attorney General from passing upon the undesirability 

and deportability of aliens, such as the relators in the instant cases, who had 

procured certificates of naturalization before their convictions of espionage, 

but later had been deprived of those certificates on the ground of fraud in 

their procurement. If there were to be a distinction made in favor of any 

aliens because they were at one time naturalized citizens, the logical time at 

which that status would be important would be the time of the commission 

of the crimes, rather than the purely fortuitous time of their conviction of 

those crimes. Not even such a distinction finds support in the statute. 

The Court pointed out the failure of Congress to make a distinction between aliens who had never been naturalized and thoso who 

had lost United States citizenship was not the result of unfamiliarity 

with such matters. 

The dissenting opinion stated that the statute permitting the deportation of an alien should be read to apply only to the person 

who had been an alien when convicted. It pointed out that since 

the statute permitted either of the two constructions without violence to language, the construction which led to hardship should be 

rejected. Its review of the Congressional history failed to reveal 

that Congress had denaturalized citizens in mind when the law was 

passed. 

Mangaoang v. Boyd, 205 F.2d 553 (C.A. 9, 1953), cert. den. 346 

U.S. 876, concerned a native of the Philippines who resided continuously in the United States from the time of his admission in 1926. 

He was a national of the United States from birth until 1946 when 

he became an alien. He had been a member of the Communist Party 

from 1938 to 1939. The membership was the baths for an order of 

528 
deportation under the Act of October 16, 1918, as amended by the 

Internal Security Act of 1950 (64 Stat. 1006, c. 1024, Title I, section 22) providing in pertinent part for the deportation of— 

"Any alien who was at the time of entering the United States, or has been 

at any time thereafter," a member of the following class' 

Aliens who are members of * * the Communist Party of the United 

States (S U.S.C. 137, 137-3(a), Supp. v, 1946 ed.). 

Mangaoang, who had been a national of the United States in 

1938 and 1939 when he belonged to the Party, contended that the 

law called for the deportation only of one who was an alien and 

a member of the Party simultaneously. The district court ruled 

that membership and alienage did not have to be coexistent. Eich,enlaub was relied upon. The circuit court, reversing, ruled that the 

words "aliens who are inemberS" (emphasis in original) indicated 

that Congress referred to persons who were at the same time both 

aliens and members of the Party. The court distinguished Eichenlax") on the ground that language there calling for the deportation 

of certain aliens convicted "since August 1, 1914" limited deportation 

only in that the conviction had to be after the date given; there 

was no requirement that alienage must have existed at the time of 

conviction. 

The Government had also contended that if the law called for 

alienage and membership to exist simultaneously, Mangaoang was 

deportable, nevertheless, because he lied to he considered as if he 

were an alien since the Philippine Independence Act of 1934 provided that for the purpose of all immigration laws, Philippine nationals "shall be considered as if they were aliens." The circuit 

court held that there was doubt as to whether Filipinos were to be 

considered as aliens under all immigration laws or only under 

immigration laws which existed up to the time the provisions went 

into effect but that if the directive applied to legislation which 

became effective subsequently, there was nothing in the law under 

which Mangaoang's deportation was sought which authorized the 

deportation of nationals who were to be considered aliens. Moreover, if a construction was possible which required deportation of 

nationals who were to be considered aliens, it would raise an ambiguity which must be resolved in favor of the alien. In deciding 

this issue, the court also placed reliance upon the fact that the 

directive had become obsolete in 1946 and no longer had any effective reference to any one. Finally, as a further reason why Mangaoang was not deportable, the court pointed out that deportation 

was authorized only of an alien who had made an entry into the 

United States and that when Mangaoang came to the United States 

in 1926, he had not made an entry. 

529 

654377-65-35 
Resurrection-Talavera v. Barber, 231 F.2d 524 (C.A. 9, 1956), 

involved a person born in the Philippines. He was a national of 

the United States from birth to 1946 when he became an alien. 

He entered the -United States in 1934. In 1942, he was convicted of 

crime. In 1952, he made several visits to Mexico. He was ordered 

deported under section 19 of the Immigration Act of 1917 for having 

been convicted of crime prior to his entry. The pertinent law 

provided that "any alien who was convicted * * * prior to entry, of a 

felony or other crime or misdemeanor involving moral turpitude; 

shall * * * be '* * * deported." Talavera argued that this law did 

not apply to him because he had been a national at the time of conviction. The court sustained the order of •deportation. The court 

stated: "that Talavera was a national of the United States and not 

an alien at the time of his conviction of the crime involving moral 

turpitude is irrelevant. * * * The statute under which Talavera was 

ordered deported does not include a requirement that the deportee 

be an alien at the time of his conviction" (p. 525). 

Counsel is of the belief that the result in Mangaoang was different from that in Eichenlaub or Talavera because Mangaoang used 

the present tense in calling for deportation, while in the other cases 

(counsel alleges) deportation was called for in the past tense. It 

follows, therefore, counsel contends, that since in the instant case 

deportation is called for in the present tense, the result should be 

that found in Mangaoang, i.e., a coexistence of alienage and the 

coming into being of the ground of deportation. 

We do not believe that counsel's contention can be sustained. In 

the first place, the language in Eichenlaub is not confined to the 

past tense; it calls for the deportation of aliens who "have been or 

may hereafter be convicted." Moreover, there is nothing in Talavera 

or Eichenlaub to indicate that the tense affected the courts' decision. 

The courts found alienage was not a necessity simply because the 

language did not call for alienage at the time of conviction—either 

an alien or a citizen could come within the language used. In 

Mangaoang, on the other hand, only an alien could comply with 

the language the court found controlling. That tense alone is not 

sufficient where the language does not eliminate all but aliens may 

be seen from the fact that Congress used the past tense in requiring the deportation of individuals for acts which could have been 

committed only at a time when they were a,lien8, for example, entry 

without inspection (section 241(a) (2), 8 U.S.U. 1251) or failure to 

register as an alien (the first ground set forth in section 241( (a) (5) 

of the Act, 8 U.S.C. 1251). Surely something stronger than tense 

of a verb, would have been used by Congress had there been the intent to exempt the convicted person who had been a naturalized 

citizen when the ground of deportability arose, but later became an 

alien. 

530 
That Congress would have resorted to definite language requiring 

coexistence of alienage and the creation of a ground of deportation 

is strengthened by an examination of the history of the law. In 

1950, the Supreme Court, considering Eichenlaub, found that Congress, in enacting legislation to deport aliens, could not have been 

unaware of the fact that in the United States there were and 

would be aliens who became aliens because of the cancellation of 

their naturalization. The Supreme Court concluded that if Congress had desired to exempt a denaturalized citizen from the application of the immigration laws because he had been a citizen when 

the ground of deportation arose, provision to this effect would have 

been made. This consideration is pertinent today. The Immigration and Nationality Act of 1952 was enacted with considerable 

thought having been given to the cancellation of naturalization 

(Conunentary on the Immigration and Nationality Act, pp. 86 -87, 

Title 8, Aliens and Nationality (1953); S. Rept. No. 1515, 81st 

Cong., 2d Sess., pp. 754-769 (1950) ). The Act was the result of 

the study of "each of the thousands of provisions of our immigration and naturalization laws with the end in view of appraising their 

adequacy, force and effect and in conjunction therewith the judicial 

and administrative interpretations of the provisions of the law and 

the rules and regulations implementing them" (S. Rept. No. 1137, 

82d Cong., 2d Sess., p. 2 (1952) ). The Senate version of what became the Immigration and Nationality Act contains a proposal 

based on the law involved in Eichentaub (S. Rept. 1137, 82d Cong., 

2d Sess., pp. 21-22) and the very law was incorporated in section 

241(a) (17) of the Act (8 U.S.C. 1251). We cannot find that 

Congress was not aware of the existence of L'ichenlaub or the problem of the denaturalized person when it enacted section 241(a) (4) of 

the Act. Furthermore, in connection with its study of the immigration laws, Congress had before it (S. Rept. No. 1137, 82d Cong., 

2d Sass., p. 22) the following recommendation of the Special Committee to Investigate Organized Crime in Interstate Commerce: 

The immigration laws should be amended to facilitate deportation of criminal and other u sirable aliens. To this end, the committee recommends 

the adoption of th .igislative proposal heretofore recommended by the Commissioner of Immigration and contained in section 241 of S. 716 (82d Cong.). 

now pending before the Senate Judiciary Committee. 3 

Some of the criminals who occupy key positions in criminal gangs and syndicates are alien-born. Some came into this country illegally. Some have 

See tectimory of. the Commissioner before the Committee on March O. 

1951 (S. Rept. No. 307, 82d Cong., 1st Sees., p. 579) discussing grounds of 

deportation similar to those found in section 241 (a) of the Act and the additional proposal for the deportation of aliens who at any time after entry 

were convicted of crime and declared to he undesirable by the Attorney General. 

531 
never been naturalized. Others obtained naturalizati n certificates by concealing their criminal activities. (S. Rept. No, 307, 82d Cong., 1st Sess., 

p. 15) 

It appears to us that this is some indication that Congress desired 

that a naturalized person whose naturalization was revoked should 

be made the subject of deportation proceedings, and that the deportation of alien criminal elements be facilitated whether or not 

they had been naturalized. 

Counsel, relying upon the characterization of Eichenlaub in Brancato, contends that Eichenlaub is not applicable. In Brancato the 

court said that Eichenlaub did not apply to the "general deportation 

statute." This statement is dicta for the case had already been decided on the theory that an entry was required and Brancato had 

made no entry since he had entered as a United States citizen. 

With due deference to the dicta of the circuit court, we would point 

out that the majority opinion in Eichenlaub made no attempt to 

distinguish the Act of 1920 involved from the general deportation 

statute and that Mr. Justice Frankfurter (joined in his dissenting 

opinion by two other Justices) was of the belief that "The court's 

decision has serious implications with respect to citizens denaturalized for reasons not involving moral blame, and who have, while 

citizens, committed one of a variety of acts not involving moral 

obliquity and certainly not endangering the security of the country 

but which nevertheless are covered by other statutory provisions in 

language similar to that before us." He gave as an example a 

provision of the general deportation statute which provided for the 

deportation of an alien convicted for violation of a narcotic law. 

Moreover, Eichenlaub has generally in both administrative and judicial opinions been considered as applying to the general deportation 

law (e.g., Marks v. Esperdy, 198 F. Supp. 40 (S.D. N.Y., 1961), 

and Matters of P—, 4 373). 

Furthermore, it is most telling that Congress which presumably 

knew of Eichenlaub placed the ground of deportation involved there 

in the general deportation statute in 1952 when it was made a part 

of section 241(a) (17) of the Act (8 U.S.C. 1251) and provision 

also was made for the deportation of aliens who violate current 

provisions of the 1920 Act found in 18 U.S.C. 791-794, 2388, and 

3241. For what it may be worth, we must point out that Mangaoang, 

upon which counsel places much reliance, also did not concern the 

general deportation law (Immigration Act of February 5, 1917); it 

involved a special, law relating to the exclusion and expulsion of 

subversives (Act of October 16, 1918, 40 Stat. 1012, as finally 

amended by the Act of September 23, 1950 (64 Stat. 987). Lastly, 

it must be stated that Talavera involved the general immigration 

statute. 

532 
Counsel contends that it is improper to apply section 241(a) (4) 

of the Act to one who was convicted while he was a citizen because 

such application makes ineffective the provisions of section 241(b) 

of the Act which permit a court to make a recommendation against 

deportation within 30 days of passing sentence. Counsel relies 

upon Gubbels v. Boy, 261 F.2d 952 (C.C.A. 9, 1958). Gubbels involved the question as to whether a conviction of a military court 

could be a basis for deportability. The court held that since a military court. could not make a recommendation against deportation, 

Congress had not intended to make its sentence the basis for deportation. The issue was the nature of the tribunal whose judgment 

Congress intended to be the basis for deportation. Such is not the 

issue here, where, as the special inquiry officer has pointed out, it 

was not the nature of the tribunal but the respondent's misconduct 

in obtaining naturalization improperly which prevented him from 

obtaining a recommendation against deportation. (Actually, the 

question of making a recommendation could have been raised by the 

respondent who had been fighting efforts of the Government to 

denaturalize him since at least October 1952 (Exh. 5, p. 2).) • 

Moreover, the fact that an alien has not had an opportunity to 

petition the court for a recommendation against deportation does 

not prevent his deportation for conviction of crime under a law 

which does provide for such recommendation. The right of the 

nation to expel aliens is absolute and unqualified (United States ex 

rel. Circella v. Neelly, 115 F. Supp. 615, 626 (N.D. Ill., 1953), aff'd 

sub Rom United States ex rel. Circella v. Sahli, 216 F.2d 33 (C.A. 

7, 1954), cert. den. 348 U.S. 964; and Matter of L—, 8-389, 390). 

See, United States ex rel. Klo-nis v. Davis, 13 F.2d 630 (C.A. 2, 1926) ; 

Todaro v. Munster, 62 F.2d 963 (C.A. 10, 1933) ; and Matter of 

17—M--, 8 94. Moreover, the provisions calling for the deportation 

of convicted aliens and the malting of recommendations against deportation have been in effect since 1917. Filipinos convicted between 

1917 and at least 1934 were nationals of the United States to whom 

the immigration laws did not apply. Yet, in 1934 Congress had no 

hesitancy in providing for the application of the immigration laws, 

including the 1917 Act, to Filipinos for acts which had occurred (and 

until 1946 would occur) while they were nationals (see Mesirut v. 

Rosenberg, 278 F.2c1 291, 296-297 (C.A. 9, 1060) ). Finally, there 

is still available to the respondent the benefits of that portion of section 

241(h) which prevents deportation of one who has obtained a pardon. 

Several administrative decisions are pertinent to the issue as to 

the necessity of the coexistence of alienago and the conviction. 

Natter of L—, 6-666 (1955), concerned an individual who had 

entered the United States as an alien in 1920. He became a United 

533 
States citizen in 1931. He was convicted of four crimes in 1940. 

in 1950, he lost United States citizenship under section 401(g) 

of the Nationality Act of 1940 which provided for the expatriation 

of a dishonorably discharged citizen who in time of war had been 

convicted by court martial of desertion. Deportation proceedings 

were brought under section 241(a) (4) of the Act charging L—

with having committed two crimes after entry. The Board sustained the order of deportation. Subsequently, the Supreme Court 

ruled that section 401(g) of the Nationality Act of 1940 was unconstitutional (Trop v. Dulles, 356 U.S. 86) and because of this, 

on September 11, 1958, the Board withdrew its order of 1955 and 

terminated proceedings. Counsel in a supplemental brief presents 

the belief that the Board's order in 1955 was in error. He is of 

the belief the issue was given little consideration ; that expatriation 

presents a different situation from a cancellation of naturalization; 

and that Mangaoang was distinguished administratively merely on 

the grounds relating to entry, ignoring the additional ground concerning the coexistence of alienage and the ground of deportability. 

We do not believe our decision was in error. The issue was appropriately considered and decided on the basis of precedents, including 

Eieh.enlaub. 

Matter of 8—, 5-678 (1954), concerned a person who while a citizen of the United States had been convicted of theft on three occasions. 

Subsequently, he lost his United States citizenship by taking an oath of 

allegiance to a foreign government. When he attempted to returh to 

the United States, he was excluded under the Immigration and Nationality Act as one who had been convicted of crime involving moral 

turpitude prior to entry. The alien contended that at the time the 

offenses were committed he was not an alien but a citizen and was not 

excludable because he had never been convicted of a crime as an alien. 

The Board held that the contention was without merit because the Act 

required the exclusion of persons who were aliens without excepting 

those 'who had been citizens and suffered expatriation. Eielzenlaub 

was relied upon and Mangaoang was distinguished by reference to its 

third numbered paragraph. This paragraph points out that. Mangaoang differs from Eichenlawb because in Eichenlaub the language "did 

not require a showing that at the time of conviction. * * * the person in 

question had then been an alien" while in Mangaoang the language 

did require the person to be an alien. Counsel contends that 5— 

was found excludable "because of the past-tense language of the 

statute involved" and that Mangaoang "was distinguished as being 

based on a present -tense statute similar to section 241(a) (4)." We 

find no mention of tense as a reason for ordering S—'s deportation. 

The convictions in Matter of 8— could have happened to either an. 

534 
alien or a nonalien, and the law did not limit deportability to those 

who had been convicted only as aliens. This was the basis of the 

decision. The same basis for decision was used in Matter of M —, 

A-11875663, 9-452 (1961), which involved a native-born citizen 

of the United States who had been convicted of a crime in 1951. 

Be. expatriated himself in 1959 by service in the armed forces of a 

foreign state. He last entered in 1960. His deportation was ordered 

under the Act as one who had been excludable in 1960 as an alien 

convicted of crime prior to entry. 

Matter of P , 4 373 (1951), and Matter of TV , 5 759, 764 

(1954), involved persons who entered as United States citizens and 

were ordered deported for having been convicted of crime, or having 

admitted commission of crime prior to last entry. Counsel is of the 

belief that deportation was ordered because the past tense was used in 

the laws. In these cases, decided before Brancato, the Board's decision was not based upon the tense of the statute involved but upon the 

fact that denaturalization stripped the individual of United States 

citizenship retroactively. There io no baois for concluding that the 

Board would have acted differently had the statutory language been 

written in proesenti. 

Counsel contends that to find it possible to interpret section 

241(a) (4) to make the coexistence of alienage and conviction unnecessary would make the statute ambiguous so that a construction 

favorable to the respondent should be taken. The rule of the 

cases, however, is clear. When the law requires deportation for 

acts which can be performed or happen to either an alien or a 

citizen, nationality status at the time of the performance or happening is immaterial unless the law provides that alienage must 

be present. There is thus no ambiguity. Applying the rule to the 

language of section 241(a) (4), we find that the act condemnedconviction—can occur to either a citizen or an alien and the law_ 

does not provide that -the subject be an alien. Therefore, alienage 

at the time of conviction was not a necessity ' and the charge is 

sustained if moral turpitude is involved and the crimes did not 

arise out of -a single scheme of criminal misconduct. 

Single Scheme 

Couithei contends that the Service has failed to prove that the 

two convictions on which the order of deportation is based did not 

arise "out of a single scheme of criminal misconduct." The respondent had been indicted for filing false and fraudulent income tax 

4 So that all major aspects of the case may he properly developed for. judicial review, if it should take place, we shall subsequently discuss the issue 

as to whether the respondent must not be considered to have been an alien 

at the time of conviction. 

535 
returns for 1946, 1947, 1948 and 1949. The jury convicted the 

respondent for the years 1947, 1948 and 1949. He was sentenced 

to 5 years on each count, to run concurrently, and a fine was imposed. On appeal, the conviction as to 1947 was reversed. 

At the deportation hearing, the respondent refused to testify. 

The Service presented the record of the convictions, she:wing in one 

count a violation of the law by the filing of a fraudulent return on 

January 14, 1949, for the calendar year 1948, and in the other count, 

a fraudulent filing of a tax return on March 10, 1950, for the year 

1949. The Service then rested. In his defense, the respondent presented the summation of the prosecuting attorney at the tax evasion 

trial as evidence that the convictions arose out of a single scheme 

(Exh. 15). The summation reveals that the Government's case is 

built upon the net worth theory. Proof was made of the respondent's assets in 1946, the amount of income he reported for the years 

1046 to 1040, the fact that ho had spent twice the money he had 

reported as income for those years, and the fact that there was a 

source from which the additional income could have come to the 

respondent. The sums spent over and above that which could be 

attributed to the assets started with and income reported were 

alleged to be income concealed. The brief of the respondent sets 

forth several instances where the prosecuting attorney, in his summation, made the point that the revviideul, had so cor:ducted himself over a period of years that he had spent twice as much as he 

had reported, defrauding the Government of taxes due. Great 

emphasis is put on this statement of the prosecuting attorney. "If 

the F—C—s can get away with this scheme to defeat and defraud 

the-Government out of income taxes, then the honest taxpayers of 

this country * * * will carry the load * * (p. 1834, Exh. 4). The 

respondent also submitted a subpoena for F—, an attorney, who had 

represented the respondent at the trial on income tax evasion. It 

was alleged that although not a participant, the witness allegedly 

had knowelge of the facts which would show a single scheme. 

Counsel explained that the request to subpoena F— came after the 

death of D—, another of the respondent's attorneys at the tax evasion trial and one who had agreed to testify. The request was 

denied. Counsel then requested (and received) permission to submit affidavits from F— and another person. However, affidavits 

were not submitted. The Government presented the summation of 

the defense counsel at the tax evasion trial (E.&11. 17), an affidavit 

of C—'s in support of a motion for inspection of minutes of the 

grand jury (Exh. 18), and testimony of S , a defense witness at 

the tax evasion trial (Exh. 19). 

.The special inquiry officer ruled that the burden of proving that 

the convictions had not arisen from a single scheme was upon the 

536 
Government and that in the absence of probative evidence to the 

the contrary, a record of conviction failing to show acts in furtherance of a common plan would suffice to establish a single scheme 

did not exist. The special inquiry officer, relying heavily on Chanan 

Din Khan T. Barber, 147 F. Supp. 771 (N.D. Calif.), aff'd 253 F.2d 

547 (C.A. 9, 1958), cert. den. 357 U.S. 920, where the facts are similar to those in the instant case, found that a single scheme had not 

existed. 

Counsel contends the Service cannot bear its burden of establishing that the respondent's crimes did not arise out of a single scheme 

by merely introducing a conviction in the situation before us because 

there is nothing in the two successive tax evasions which negates 

singleness of scheme. Counsel contends the Service is under the 

obligation of making further proof that a single scheme was not 

involved. Counsel contends that Chanan, Din Khan v. Barber, 

supra, is wrong because it was decided in the belief that the burden 

of proof as to the single scheme issue was on the alien rather than 

on the Service, and because the term "single scheme" was equated 

with a single punishable crime. Counsel contends that these tests 

were rejected in Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959). 

Chanan Din Khan was reviewed in Wood T. Hoy, supra, and 

quoted from, without criticism. It is, therefore, guiding authority 

for a situation such as was involved there. Chanan Din Khara, on 

facts very similar to those before us, held that an indictment showing convictions on two fraudulent returns filed a year apart is persuasive evidence that two unrelated crimes were involved. In the 

instant case, there is no probative evidence controverting the inference which flows from the commission of crimes a year apart. Certainly, the ,remarks of the prosecuting attorney at the tax evasion 

trial do not controvert the inference which flows from the convictions. The prosecuting attorney was concerned with the concealment 

of income from the Government to avoid payment of taxes. He did 

not have to prove that when the respondent took the first step to 

defraud the Government that he intended to continue to do so for 

the next three years. The word "scheme" could have been applied 

to actions and plans which had as their end the filing of a fraudulent tax return if only one year had been involved. It was unnecessary fnr the prosecuting attorney to establish that there was a 

scheme to commit both violations in order to obtain a conviction. 

Moreover, even if this ambiguous opinion by the prosecuting attorney, made in the heat of advocacy, referred to a conspiracy for the 

four years, it would not be controlling as to the actual state of 

mind of the respondent. In fact, if the opinion of the prosecuting 

attorney were meant to express the belief that when the respondent 

filed his return for 1948 he conspired to defraud the Government 

537 
in the next three years, it was an opinion not shared by the jury 

which acquitted the respondent on the charge involving the year 

1946. 

Counsel sites Matter of F—G— & C D , 8147,in support of 

his contention that the convictions in the instant case arose out of a 

single scheme. In the administrative decision cited, the first alien had 

been convicted on two counts of making a false statement for the purpose of obtaining unemployment insurance benefits. In count one he 

was charged with making the first false statement and in count two 

with making the second false statement a week later. The Board 

decided that it was proper to conclude that when the alien falsely 

represented he was unemployed to obtain benefits, he intended to do it 

again on the following week, although the inference might be too 

broad if attempt were made to extend it to the entire 26 weeks of benefits. In the instant case, it would be even less proper to infer that the 

intention to falsify the return filed in March 1950 was formed in 

January 1V4t when the prior fraudulent return was filed (Chanan 

Din Khan, v. Barber, oupra). 

Counsel contends that the net worth theory by its very nature 

prevents a showing that two crimes did not arise out of a single 

scheme. This contention is based on the belief that under the net 

worth theory convictions for two successive years are possible upon 

proof of facts which show no more than that the indicted person 

received a sum of money in one year and spent it in two successive 

years without reporting what was spent as income in either year. 

In other words, the possibility is raised that in January 1949, the 

respondent evaded the payment of taxes then due on income which 

he had received in 1948 and that, although in March 1950 he filed 

a return showing some income in 1949, it could have been from the 

same income concealed in 194g that the money came which was spent 

in 1949 in excess of that reported. It is answer enough that there 

is no proof that the convictions for 1948 and 1949 were the result 

of a conspiracy to evade payment of taxes for income which had 

been received only in 1948. On the contrary, the record of that trial 

reveals there was income for both 1948 and 1949 (Exh. 19, pp. 

1679 (a)--1681 ( a) ). Moreover, an examination of the reported tax 

conviction case reveals the following pertinent charge to the jury : 

This [net worth] method involves determination of the defendant's net 

worth at the beginning and end of a period in order to foreclose the possibility that the cxpcnditurca were made, or the net worth increases were 

derived, from.prior accumulated funds. 

• • • • • 

In order for you to find that sums received by the defendant during any 

of the taxable years constituted income to him, It is not necessary for the 

Government to have proved the exact source of the income. None of the 

alleged excess investments and expenditures made by the C—s during any 

538 
year shall be considered in determining the taxable lot:owe of the defendant 

F—C-- in any year unless you find that there was an excess of expenditures 

and investments, and that It constituted money which the defendant received 

as taxable income during the year in which the money was spent. (United 

States v. Costello, 221 F.2d 668, 070 (C.A. 2), aff'd 350 U.S. 359) 

The net worth theory is a method for proving that a crime was 

committed during a particular year. Its use does not negate the 

possibility that the crimes were the reaulte of independent violations made from year to year rather than at one time in a particular year. 

Moral Turpitude 

We come now to the question of whether the special inquiry officer 

properly found that the respondent's convictions on two counts for 

violation of 20 U.S.C. 145(b) involve moral turpitude. The special 

inquiry officer, relying upon judicial precedents, found that fraud 

was an ingredient and that moral turpitude was present. The issue 

was fully discussed by the special inquiry officer. Counsel contends 

that United States v. Seharton, 285 U.S. 518 (1932), and United 

States v. Carroll°, 30 F. Supp. 3 (W.D. Mo., 1939), require a contrary finding. Similar contention based upon the cases cited by 

counsel was made in Chanan Din Khan v. Barber, 147 F. Supp. 

771, 775 (N.D. Calif., 1957), which concerned violations of the same 

section involved in the instant case. The court found that moral 

turpitude was present. The decision of the court was affirmed upon 

appeal, 253 F.2d 547, and certiorari was denied, 357 U.S. 920. We 

see no need to discuss this issue further. 

We find no reversible error in the denial for the issuance of a 

subpoena for F—. The issuance of a subpoena is a discretionary 

matter. While the respondent was entitled to produce evidence in 

such form as he desired, there was no abuse of discretion in denying 

the subpoena in the absence of some inure specific statement as to 

the testimony which the witness could offer. 

The respondent's deportability is established on the first charge 

because of convictions for evasion of taxes. 

Relation: Back Theory 

Our conclusion is that alienage and conviction need not bo coexistent; however, as we previously indicated, we shall consider the 

issue as to whether the respondent should be regarded as having 

been an alien at the time of the conviction since he has been denaturalized under section 340(a) of the Act (8 U.S.C. 1451). The section provides that revocation "shall be effective as of the original 

date of the order and certificate." The special inquiry officer found 

the law to be that denaturalization is retroactive and confers upon 

539 
the subject the status of an alien at all times and for all purposes, 

except that one who entered while naturalized may not be considered 

as having entered as an alien, and except that certain language providing for the deportation of an alien who is a member of a proscribed organization requires that there must be a coexistence of 

alienage and membership. The special inquiry officer ruled. that 

since C— fell in neither of the exceptions, he must be considered 

as having been an alien at the time of the conviction. Counsel contends that the "relation-back" theory should not be applied because 

judicial precedents require that a denaturalized person be regarded 

as if he had been a citizen before the denaturalization even though 

he was not lawfully entitled to be naturalized. We believe that the 

"relation-back" theory is properly applied here. 

Prior to the Immigration and Nationality Act, it was established 

that a revocation of naturalization, whether for fraud or for illegality, vva (UulGed States ex rel. Brancato v. Lehmann, 

supra). While there was general agreement that the denaturalized 

person must be considered as an alien from the time of the denaturalization, the rule of the cases appears to have been that the fiction 

that alienage existed at any particular moment in the past would 

not be indulged in if the individual would be required to do what 

was impossible of performance. Thus, the fiction was not indulged 

in where it would require an individual who entered as a United 

States citizen to have been in possession of the documents required 

of an alien (Matter of C—, 3-275 (Atty. Gen., 1950)). In the same 

vein, it was improper to consider one who did something as a national 

of the United States, as if he had done it while an alien (Barber v. 

Gonzales, supra). However, the relation-back doctrine was applied 

where it did not require the "impossible" of the alien (Matter of P—, 

4 373). 

Although it is the contention of counsel that it is improper to 

apply section 340(a) to a deportation section, we see nothing in 

the working or the history of this law (which at the minimum 

merely restates what was decided judicially) that would prevent its 

application to deportation proceedings. The section can be given 

effect in the case before us without violence to precedents if we consider the respondent as an alien at the time he was convicted. The 

commission of crime or the conviction was not related to nationality. 

To consider the respondent as having been an alien at the time of 

the conviction imputes to him no action which he, as a citizen, could 

not have done. No impossibility is asked for. We believe it is 

proper for the purposes of section 241 (a) (4) of the Act to consider 

the respondent as having been an alien at the time of his conviction. 

(Cf. Mesina v. Rosenberg, 278 F.2d 291 (C.A. 9, 1960).) 

540 
Counsel contends that Congress could not have intended the relation-back theory to apply because in section 241(b) provision was 

made for a recommendation against deportation, a provision which 

would be of use only to an alien. This contention has been previously considered; we pointed out that Congress has the power to 

deport an alien who had no access to a recommendation against 

deportation. Congress must have realized that the 30-day period 

within which such a recommendation could be made would have 

passed by the time of the denaturalization. and may have been content to permit the denaturalized person to resort to a pardon. 

At oral argument, counsel expressed the belief that the special 

inquiry officer had used Eichenlaub as authority to give a retroactive effect to alienage (p. 4 of oral argument). Although the special inquiry officer gave a retroactive effectt to the denaturalization, 

he did not use Eiehenlaub as authority for this. (See last sentence 

on p. 15 of the special inquiry officer's opinion.) The special inquiry 

officer relied upon the statutory declaration in section 340(a) of the 

Immigration and Nationality Act (p. 18 of special inquiry officer's 

opinion). 

The special inquiry officer found the respondent deportable on the 

first charge. The first charge is superfluous; it is contained within 

the third. The record does not establish the respondent's deportability on the second charge for the reason stated by the special 

inquiry officer. The respondent's deportability on the third charge 

is sustained, based on the tax evasion convictions; deportability on 

the basis of the other convictions has not been established. 

The findings of fact and conclusions of law of the special inquiry 

officer are adopted except Conclusion of Law No. 3 will be amended 

to eliminate the convictions in 1954 for tax evasion as grounds on 

which the respondent is not deportable: 

(3) That you are not deportable under section 241(a) (4) of 

the Immigration and Nationality Act based on conviction 

for two crimes after entry (contempt of Congress in 1952; 

contempt of court in 1957). 

ORDER: It is ordered that the appeal be dismissed. 

It is further ordered that the respondent be deported from the 

United States in the manner provided by law on the third charge 

of deportability based solely on the income tax convictions. 

541