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United States v. Day

November 17, 1930

UNITED STATES EX REL. NATALI
v.
DAY, COMMISSIONER OF IMMIGRATION



Appeal from the District Court of the United States for the Southern District of New York.

Author: Hand

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an appeal from an order dismissing a writ of habeas corpus. The writ was taken out in order to test the validity of a warrant of deportation issued by the Secretary of Labor on the ground that the relator had been found in the United States in violation of the Immigration Act of February 5, 1917, in that he entered without inspection, and that he was a person likely to become a public charge at the time of his entry.

The relator, who is 36 years of age, was born in Italy, came to the United States in May, 1914, and was regularly admitted as an immigrant. Since his arrival in this country he has resided in Albany and Watervliet, N.Y., and has a home at the latter place, where he resides with his wife. In September, 1926, at the request of an Italian named Lavarello, he took $120 to the latter's brother, Simone Lavarello, in Montreal, for the purpose of assisting Simone to enter this country unlawfully. Simone paid a taxi driver $80, who engaged an Indian to row the relator and himself under cover of night from Canada across the St. Lawrence river to New York state. The relator crossed the border without inspection, and was apprehended by immigration officers shortly after he had re-entered the United States with Simone. The foregoing facts having been established by the relator's own testimony at the hearing before the Inspector of Immigration, the warrant for his deportation issued.

It is unnecessary to determine whether the relator should have been deported because he was likely to become a public charge, because his entry without inspection was in itself a sufficient ground to call for the issue of the warrant.

Section 19 of the Immigration Act of February 5, 1917 (8 USCA § 155), provides as follows:

"Sec. 19. That at any time within five years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law; any alien who shall have entered or who shall be found in the United States in violation of this act, or in violation of any other law of the United States; * * * at any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than one designated as a part of entry for aliens by the Commissioner General of Immigration, or at any time not designated by Immigration officials, or who enters without inspection, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported. * * * In every case where any person is ordered deported from the United States under the provisions of this act, or of any law or treaty, the decision of the Secretary of Labor shall be final."

The return from Canada must be treated as a new entry, Ex parte Hoffman (C.C.A.) 179 F. 839; United States ex rel. Ueberall v. Williams (D.C.) 187 F. 470; and entry without inspection is in itself a ground for deportation, Singh et al. v. United States (C.C.A.) 243 F. 559; Lidonnici v. Davis, 57 App. D.C. 36, 16 F.2d 532; Ex parte Halkides (D.C.) 291 F. 585; Ex parte Griffin (D.C.) 237 F. 445, at page 459; Ex parte Fragoso (D.C.) 11 F.2d 988.

The decision of In re Wysback (D.C.) 292 F. 761, is relied on by appellant, which holds that inspection is unnecessary where, as here, an alien has a right to re-enter within six months. But the fallacy of that decision seems to have consisted in holding that an alien who had been previously lawfully admitted to the United States, and was returning from a temporary visit of not more than six months in Canada, could re-enter this country without inspection merely because he required no passport, visa, or permit. The alien's right to re-enter without such papers was recognized in Johnson v. Keating ex rel. Tarantino (C.C.A.) 17 F.2d 52, but that decision in no way dispensed with the inspection required under section 19, supra, of the Immigration Act.

Section 13(b) of the Immigration Act of 1924 (8 USCA § 213(b) provides that immigrants who have been legally admitted to the United States, and who depart therefrom temporarily, may be readmitted without being required to obtain But the regulations which permit aliens previously legally admitted to return from Canada within six months without having a passport, visa, or permit neither purport to nor could, in view of the express words of section 19, supra, dispense with inspection. Certainly identification of aliens, if nothing more, is vital to the enforcement of the immigration laws and without inspection at the border any proper administration would be impossible.

While it seems unfortunate to be compelled to sanction such a drastic penalty as deportation for the offense here, we see no alternative under the terms of the statute.

The relator was properly ordered deported to Italy and not to Canada because the latter country refuses to receive him. See section 20 of the ...


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