United States ex rel. Grimaldi v. Ebey

EVANS, Circuit Judge. Following a conviction of a violation of the “act to prohibit the importation and use of opium for other than medicinal purposes,” appellant, an alien, served his sentence in the penitentiary. Upon a discharge the government sought to deport him, relying upon section 2, subd. (e), of the 1922 amendment, sometimes known as the Jones-Miller Act (Comp. St. Ann. Supp. 1923, § 8801), which reads as follows : “Any alien who at any time after his entry is eonvieted under subdivision (e) shall, upon the termination of the imprisonment imposed by the court upon such conviction and upon warrant issued by-the Secretary of Labor, be taken into custody and deported in accordance with the provisions of sections 19 and 20 of the Act of February 5, 1917, entitled ‘An act to regulate the immigration of aliens to, and the residence of aliens in, the United States,’ or provisions of law hereafter enacted which are amendatory of, or in substitution for, such sections.” His deportation was duly ordered, and he applied for a writ of habeas corpus. His present appeal is to review the order denying such application. In support of his position he contends that the evidence shows he arrived in this country more than five years prior to the order of deportation, that he has been convicted of only one ofEense, and that under section 19 of the Deportation Act he cannot now be deported, for the reason that he has resided here more than five years. In short, he contends that the language, “Any alien who at any time after his entry is eonvieted,” is modified and controlled by the reference to sections 19 and 20 of the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 4289%jj, 4289%k), which fixes a five-year limitation period in certain eases. An examination of the act of 1922 convinces us that the Congress was dealing particularly with the deportation of aliens who violated the Narcotic Act. It was a special enactment, dealing with a particular class of offenders, or rather offenders who committed a particular kind of a crime. It is apparent that this act of 1922 is in pari materia with the 1917 Deportation Act. The specific language found in section 2, subd. (e), above quoted, invokes the application of the maxim “Generaba speeiabbus non derogant.” In other words, the language, “at any time after his entry,” used in section 2, subd. (e), act of 1922, controls over any bmitation found in section 19 of the act of 1917, when appbed to aliens who have offended against the Narcotic Act. But, even if this rule of statutory construction were not invoked, the same conclusion would be reached because of certain provisions of section 19. It is provided in said section 19: “Provided further, that the provisions of this section, with the exceptions hereinbefore noted, shall be applicable to the classes of aliens therein mentioned irrespective of the time of their entry into the United States.” This proviso, it seems to us, expressly recognizes the specific hmitations of absence of hmitations found in each of the numerous classes of deportable causes. The order is affirmed.