Restivo v. Clark, 3210.

• Decision Date: 01 June 1937
• Docket Number: No. 3210.,3210.
• Citation: 90 F.2d 847
• Parties: RESTIVO v. CLARK, United States Immigration Inspector.
• Court: U.S. Court of Appeals — First Circuit

90 F.2d 847 (1937)

RESTIVO v. CLARK, United States Immigration Inspector.

No. 3210.

Circuit Court of Appeals, First Circuit.

June 1, 1937.

McKiernan, McElroy & Going and Edward F. McElroy, all of Providence, R. I. (Cornelius F. Keating, of Boston, Mass., on the brief), for appellant.

George F. Troy, Asst. U. S. Atty., of Providence, R. I. (J. Howard McGrath, U. S. Atty., of Providence, R. I., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an appeal from an order or judgment of the federal District Court for Rhode Island in a habeas corpus proceeding denying the writ and remanding the petitioner to the custody of the immigration authorities.

It appears that the petitioner is an alien, born in Italy, who came to this country with his father and mother when nine months old, and landed at New York May 1, 1904; that on September 9, 1919, he was arrested for breaking and entering and larceny, found guilty, and, his sentence being deferred, on January 10, 1920, was sentenced in the Superior Court of Rhode Island to imprisonment for one year, which he served; that on January 4, 1920, he was again arrested for assault and robbery, later changed to assault with intent to rob, found guilty, and, sentence being deferred, on October 24, 1921, was sentenced by the same court to five years' imprisonment in the Rhode Island State Prison, which he served; and that on December 28, 1930, he was again arrested for violation of the White Slave Traffic Act (18 U.S.C.A. §§ 397-404), found guilty, and, on January 7, 1931, was sentenced in the federal District Court for Rhode Island to imprisonment for a year and a day in the Atlanta Penitentiary, and, having served ten months of that sentence, was released for good behaviour; that, upon the expiration of that sentence, he was taken on a warrant of arrest issued by the immigration authorities, and, having been given a hearing before Immigration Inspector F. E. Boerner at the immigration station at Atlanta, was released on an appearance bond in the sum of $3000.

The proofs taken at the hearing before the Immigration Inspector at Atlanta having been submitted to P. F. Snyder, Assistant Secretary of Labor, a warrant of deportation dated June 17, 1931, was issued by him reading as follows:

"Warrant — Deportation of Alien

"United States of America Department of Labor

"No. 1130/150 Washington "No. 55721/516

"District Director of Immigration, Atlanta, Georgia,

"To: Commissioner of Immigration, Ellis Island, N. Y. H., or to any Officer or Employee of the United States Immigration Service.

"Whereas, from proofs submitted to me, Assistant to the Secretary, after due hearing before Immigrant Inspector F. E. Boerner, held at Atlanta, Ga., I have become satisfied that the alien Mario Restiva or Restivo alias Marty Russell, alias Manuel Restivo, who landed at the port of New York, N. Y. H., on or about the last day of May, 1904, has been found in the United States in violation of the immigration act of February 5, 1917, to wit: That he has been sentenced, subsequent to May 1, 1917, to imprisonment, more than once, for a term of one year or more, for the commission subsequent to his entry of a crime involving moral turpitude, to wit: Breaking and entering shop in the night time, and larceny; assault with intent to rob; and conspiracy to violate the White Slave Traffic Act, and may be deported in accordance therewith; I, P. F. Snyder, Assistant to the Secretary of Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to return the said alien to Italy the country whence he came, at the expense of the appropriation `Expenses of Regulating Immigration, 1931,' including the expenses of an attendant, if necessary. Execution of this warrant should be deferred until such time as the alien is released from imprisonment.

"For so doing, this shall be your sufficient warrant.

"Witness my hand and seal this 17th day of June, 1931.

"P. F. Snyder "Assistant to the Secretary of Labor."

It further appears that in May, 1932, the petitioner received notice from the immigration authorities to report at Ellis Island, N. Y., for deportation the first week in June, 1932; that he went there as ordered; that while there he was informed of an order of W. N. Doak, then Secretary of Labor, issued June 1, 1932, reading as follows:

"June 1, 1932.

"In the case of Mario Restiva or Restivo alias Marty Russell, alias Manuel Restivo.

"It is ordered that the outstanding bond be cancelled, and deportation be stayed indefinitely.

"W. N. Doak, Secretary."

Thereupon the appearance bond was canceled and the petitioner was permitted to return to Providence. Mr. Doak's service as Secretary of Labor expired March 4, 1933, due to a change of administration, without further action having been taken by him with reference to the execution of the order of deportation contained in the warrant of June 17, 1931.

In February or March, 1936, the deportation proceedings concerning the petitioner were brought to the attention of the Board of Review in Washington, and that Board, on March 4, 1936, made a report of its investigation to Turner W. Battle, the then Assistant Secretary of Labor, in which it recommended that the deportation of the petitioner be proceeded with at the earliest practicable opportunity; and the Assistant Secretary of Labor so ordered. The report and order are as follows:

"Further consideration Warrant Proceedings.

"The case of this alien was first considered on June 17, 1931, at which time he was ordered deported to Italy, on the ground that subsequent to May 1, 1917, he had been sentenced more than once to imprisonment for a term of one year, or more, for the commission subsequent to his entry of a crime involving moral turpitude, to wit: Breaking and entering shop in the night time, and larceny; assault with intent to rob; and conspiracy to violate the White Slave Traffic Act.

"He was subsequently released upon an appearance bond, in the sum of $3,000.00. Various pretexts were resorted to thereafter to delay deportation, and on June 1, 1932, an order was entered over the personal signature of the then Secretary of Labor that the outstanding bond be cancelled, and deportation be stayed indefinitely. No reason was given for this action.

"On December 11, 1935, the District Director at Jacksonville, advised that an Italian passport had been issued, with which to deport this alien, and that he was then being held at Ellis Island. Instructions were requested. There is nothing in the record which would give any reason why deportation in the case of this alien should be further delayed. It is therefore recommended that deportation be proceeded with at the earliest practicable opportunity.

"L. Paul Winning "Chairman of the Board of Review.

"So ordered

"Turner...