The opinion of the court was delivered by: KRAFT
This is an action for review of an order of deportation. Upon the filing of the petition for review, all proceedings under the order were stayed until final disposition of the case.
Respondent has filed a motion to dismiss the petition for review, or, in the alternative, for summary judgment.
Petitioner, an unmarried woman about thirty-five years old, is a native and citizen of Germany who presently resides in Philadelphia, Pennsylvania. She was admitted to the United States for permanent residence on May 24, 1957, upon surrender of an immigrant visa issued on May 9, 1957 by the Consul in Toronto, Ontario, Canada.
In October 1958, the Immigration and Naturalization Service caused an order to be served upon the petitioner to show cause why she should not be deported and gave her notice of a hearing thereon. The order averred, inter alia:
'4. You were convicted at the Lower Court of Bremen, Germany on December 6, 1944 for two separate offenses of Simple Larceny and on December 12, 1944 for the offense of Concealing Stolen Goods;
'5. You were admitted to the United States with an immigrant visa procured by you at the American Consulate, Toronto, Canada, on May 9, 1957;
'7. You failed to disclose in the application for your immigrant visa that you had previously applied for an immigrant visa at the American Consulate, Hamburg, Germany and was (sic) refused a visa because you had been in prison.'
The order also informed the petitioner that she was subject to be deported pursuant to Section 241(a)(1) of the Immigration and Nationality Act,
in that at the time of her entry she was excludable under (1) Section 212(a)(9); and (2) Section 212(a)(19)
Petitioner appeared without counsel at the hearing before the Special Inquiry Officer. She freely admitted the truth of the above averments. However, the records of her convictions in Germany were not introduced into evidence. Petitioner conceded deportability on the first charge contained in the show-cause order. She did not concede deportability on the second charge, based upon her excludability at the time of entry as an alien who procured a visa by fraud or wilful misrepresentation of a material fact. She insisted that she did not reveal her convictions in her application for a visa because she believed that these convictions were expunged from the police records in Germany after ten years of 'clear' record, and that she did, in fact, receive a negative police record from Germany.
Petitioner testified that she had become engaged to marry an American soldier in Germany; that he left Germany and returned to his home in Philadelphia in 1955; that she intended to come to the United States, at his repeated and urgent solicitations, in order to marry him; that, when she arrived in Canada, she received a letter from her fiance advising her of his recent marriage to another. She further testified that she has not committed any offenses other than those charged in the order to show cause, and that she has been steadily and gainfully employed since her arrival in the United States.
The Special Inquiry Officer found that petitioner had been convicted of the offenses described in the order to show cause, and entered an order of deportation. He also stated that since he saw 'no reason to delve into the second charge, it will be dismissed.'
On appeal -- in which petitioner was represented by counsel -- the Board of Immigration Appeals ordered that the outstanding order of deportation be withdrawn, and that the case be remanded to the Special Inquiry Officer 'for inclusion in the record of all the data relating to the respondent's two convictions in Germany on December 6, 1944 of the crime of petty theft and her conviction on December 12, 1944 of the crime of concealing stolen goods and for such further appropriate action as may be proper in the premises.'
At the second hearing
the Government introduced into evidence, inter alia, certified records of petitioner's convictions in the Lower Court of Bremen, Germany, for two separate offenses of simple larceny, on December 6, 1944, and for the offense of concealing stolen goods, on December 12, 1944. These records show that the convictions were based upon petitioner's confessions. Certain other certified records were also introduced ...