Bruce G. Barber, District Director, San Francisco District, Immigration and Naturalization Service, Appellant, v. Lee Hong, Appellee, 254 F.2d 382 (9th Cir. 1958)

On or about January 27, 1954, at San Francisco, California, John G. Clemson, an officer of the Immigration and Naturalization Service, issued a warrant¹  for the arrest of appellee, Lee Hong, an alien. The warrant was, in part, as follows:

"To Immigration Officer Roy R. Anderson or to any officer in the service of the United States Immigration and Naturalization Service.

"Whereas, from evidence submitted to me, it appears that the alien Lee Hong [appellee] * * * has been found in the United States in violation of the immigration laws thereof, and is subject to be taken into custody and deported pursuant to the following provisions of law, and for the following reason, towit:

"Section 241(a) (2) of the Immigration and Nationality Act,²  in that he entered the United States without inspection.

"I, by virtue of the power and authority vested in me by the laws of the United States, hereby command you to take into custody the said alien and grant him a hearing to enable him to show cause why he should not be deported in conformity with law. * * *"

On April 14, 1954, in the United States District Court for the Northern District of California, Southern Division, appellee brought a civil action against appellant, Bruce G. Barber, District Director of the Immigration and Naturalization Service at San Francisco. Alleging that the warrant was illegal and void, the complaint³  prayed that appellant, his servants, employees and agents and all other persons acting under appellant's order, authority or direction be enjoined from proceeding against appellee under authority of the warrant. Appellant answered, a trial was had, evidence was heard,⁴  findings of fact and conclusions of law were stated, and a judgment⁵  was entered permanently enjoining appellant, his agents, servants and subordinates from proceeding with the deportation of appellee on the charge that he entered the United States without inspection. This appeal is from the judgment.

As indicated above, the warrant was issued and sought to have appellee deported under the Immigration and Nationality Act,⁶  all pertinent parts of which became effective on December 24, 1952 — the 180th day immediately following the date of its enactment.⁷  Subsection (a) of § 241 of the Act⁸  provides:

"Sec. 241. (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who — * * *

"(2) entered the United States without inspection * * *."

The question here presented is whether subsection (a) of § 241 was applicable to appellee.

The District Court made findings to the effect that appellee entered the United States prior to July 1, 1924,⁹  and was in the United States at all times thereafter. These findings are not challenged. We therefore accept them as correct. If they are correct, appellee's entry without inspection, if it occurred at all, occurred prior to July 1, 1924, and prior to the date of enactment¹⁰  of the Act. However, subsection (d) of § 241¹¹  provides:

"(d) Except as otherwise specifically provided in this section [§ 241],¹²  the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this Act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this Act."

Despite the provisions of subsection (d) of § 241, the District Court, in effect, held that subsection (a) of § 241 was not applicable to appellee, appellee's entry without inspection having occurred, if at all, prior to July 1, 1924. This holding was based on the saving clause in subsection (a) of § 405 of the Act,¹³  reading as follows:

"Sec. 405. (a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any * * * status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such * * * statutes,¹⁴  conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act¹⁵  are, unless otherwise specifically provided therein, hereby continued in force and effect. * * *"

In holding, as it did, that subsection (2) of § 241 was not applicable to appellee, the District Court impliedly, if not expressly, held that the saving clause was applicable to him.¹⁶  In so holding, the District Court followed United States ex rel. Carson v. Kershner, 6 Cir., 228 F.2d 142. However, on June 3, 1957 — after the judgment here appealed from was entered — United States, ex rel. Carson v. Kershner, supra, was reversed in Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S. Ct. 1022, 1 L. Ed. 1122. Upon the authority of Lehmann v. United States ex rel. Carson, supra, we hold that the saving clause was not applicable to appellee and that subsection (a) of § 241 was applicable to him.

It is true that, in the Carson case, paragraphs (1) and (4) of subsection (a) of § 241 were involved, whereas, in this case, paragraph (2) of subsection (a) of § 241 was involved. In principle, however, the Carson case and this case are indistinguishable.

Judgment reversed.