Anthony J. De Bernardo, Appellant, v. William P. Rogers, Attorney General of the United States, Appellee, 254 F.2d 81 (D.C. Cir. 1958)

Anthony J. DeBernardo, a native of Italy, was brought by his parents to the United States when he was two years old, arriving in New York June 15, 1912. Admitted then to permanent residence, he has lived in this country continuously since that time.

When he was scarcely more than 21, DeBernardo had been twice sentenced to imprisonment for criminal offenses by New York state courts: in 1927, to a term of not more than three years on a plea of guilty to unlawful entry; and in 1931, to a term of 15 years for armed robbery.

In February, 1932, a warrant of arrest for deportation was issued by the Assistant Secretary of Labor charging appellant was deportable under § 19 of the Immigration Act of 1917¹  in that he had been sentenced to imprisonment more than once for a term of one year or more for crimes involving moral turpitude committed after his entry into the United States. Pursuant to a hearing at Sing Sing Prison, a deportation order was entered May 12, 1932, but deportation was deferred until DeBernardo should be released from imprisonment. Later in 1932 he escaped from Sing Sing but was soon recaptured; and on September 4 of that year was sentenced to an additional term of 15 years for robbery committed during the brief time he was at large.

July 30, 1952, the Board of Immigration Appeals vacated the deportation order entered in 1932 and reopened the hearing for the receipt of evidence as to whether under New York law unlawful entry involves moral turpitude. The reopened hearing began September 12, 1952, but was immediately recessed so DeBernardo could obtain counsel. When the reopened hearing was reconvened February 5, 1953, nearly five months later, appellant advised the hearing officer that neither he nor his family had money with which to retain counsel, so that he was still unrepresented. The hearing nevertheless proceeded, and during the course of it another charge was lodged against the appellant based on his robbery conviction in 1932, following his escape from Sing Sing. February 25, 1953, an order of deportation was entered which was affirmed by the Board of Immigration Appeals July 2 of that year.

DeBernardo's subsequent suit against the Attorney General for a declaratory judgment was decided adversely to him by the District Court. He appeals, principally on the ground that he was denied due process when he was not provided with counsel at the deportation hearings.

It is unnecessary to decide whether due process requires that counsel be appointed to represent an indigent defendant in a deportation proceeding, because the facts on which deportation was ordered in this case were not in issue. At the administrative hearings appellant admitted having been sentenced more than once to terms exceeding one year, and copies of the indictments, judgments and sentences were received in evidence. Sumio Madokoro v. Del Guercio, 9 Cir., 1947, 160 F.2d 164; Dengeleski ex rel. Saccardio v. Tillinghast, 1 Cir., 1933, 65 F.2d 440. The legal question whether the crime of unlawful entry involves moral turpitude was an issue before the District Court in the declaratory judgment suit in which DeBernardo was ably represented by an attorney. He was therefore not prejudiced as to that question by being unrepresented at the administrative hearings. United States ex rel. Wiczynski v. Shaughnessy, 2 Cir., 1950, 185 F.2d 347. The District Court's decision that the crime involves moral turpitude was correct. United States ex rel. Meyer v. Day, 2 Cir., 1931, 54 F.2d 336; United States ex rel. Sirtie v. Commissioner of Immigration, D.C.N.Y.1925, 6 F.2d 233.

As the sentences imposed in 1927 and 1931 were sufficient to sustain the deportation order, we do not reach the question whether a third sentence was properly added at the 1953 hearing.

Affirmed.