Annello v. Ward, 5213.

Decision Date06 November 1934
Docket NumberNo. 5213.,5213.
Citation8 F. Supp. 797
PartiesANNELLO ex rel. ANNELLO v. WARD, Commissioner.
CourtU.S. District Court — District of Massachusetts

John W. Schenck and John W. Walsh, both of Boston, Mass., for petitioner.

Francis J. W. Ford, U. S. Atty., and Arthur J. B. Cartier, Asst. U. S. Atty., both of Boston, Mass., for respondent.

BREWSTER, District Judge.

This proceeding upon writ of habeas corpus was heard upon the files of the Immigration Department, the parties consenting thereto.

The alien is held upon a deportation warrant as one who, within five years after entry, committed a crime involving moral turpitude, for which he was sentenced to imprisonment for a term of one year or more. The alien was found guilty of the crime of larceny and was sentenced on June 20, 1931. The only question arising in this case is whether the alien entered the United States within five years prior to the conviction and sentence.

The record discloses that the alien came to this country with his parents when he was about five years of age; that he had resided with them in Michigan and Massachusetts until some time in 1928 or 1929, when he went to Detroit, where he remained until the latter part of 1930, then returning to Massachusetts. In going to and from Detroit he went by automobile and, in driving between Buffalo and Detroit, passed through Canadian territory.

In 1930, he drove with his uncle to Windsor, on the Canadian side of the Detroit river, in order that he (the uncle) might see one of the men with whom he worked. They were there about 25 minutes when they returned to Detroit. On his return the alien was stopped at the border, but, upon showing his automobile license and birth certificate, he was allowed to enter without objection.

The decision of the immigration authorities seems to be based not only upon this trip with the uncle into Canada, but also on the fact that he crossed Canadian territory in driving from Boston to Detroit and back. As to the latter ground, obviously the Department disregarded the express provisions of the Immigration Act of 1924 (Act May 26, 1924, c. 190, § 3, 8 USCA § 203 (4), which defines an "immigrant" to be one who departs from a place outside of the United States destined for the United States except "(4) an alien lawfully admitted to the United States who later goes in transit from one part of the United States to another through foreign contiguous territory."

The alien, having been lawfully admitted, was not subject to deportation unless his practically uninterrupted journey from Detroit to Windsor and back constituted an entry within the meaning of the immigration laws. Admittedly, the last entry rather than the original entry is to be considered in computing the time within which the crime must have been committed. United States ex rel. Volpe v. Smith, 289 U. S. 422, 53 S. Ct. 665, 77 L. Ed. 1298; United States ex rel. Claussen v. Day, 279 U. S. 398, 49 S. Ct. 354, 73 L. Ed. 758; United States ex rel. Stapf v. Corsi, 287 U. S. 129, 53 S. Ct. 40, 77 L. Ed. 215; Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967.

In the latter case, while it does not appear how long the alien stayed in...

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7 cases
  • Rosenberg v. Fleuti
    • United States
    • U.S. Supreme Court
    • June 17, 1963
    ...unreported, Dec. 20, 1924; United States ex rel. Valenti v. Karmuth, 1 F.Supp. 370 (D.C.N.D.N.Y.1932); Annello ex rel. Annello v. Ward, 8 F.Supp. 797 (D.C.D.Mass.1934). 7 It should be pointed out, however, that the Ninth Circuit has, subsequent to the decisions cited in the text, held speci......
  • Village of Mantorville v. Chicago Great Western R. Co.
    • United States
    • U.S. District Court — District of Minnesota
    • November 7, 1934
  • Kaname Susuki v. Harris
    • United States
    • U.S. District Court — Eastern District of Texas
    • August 1, 1939
    ...about three hours time, the return to the United States being on the same day, does not constitute a new entry, citing Annello ex rel. Annello v. Ward, D.C., 8 F.Supp. 797. This case is in conflict with the weight of authority. Zurbrick v. Woodhead, 6 Cir., 90 F.2d 991, and authorities ther......
  • United States v. Reimer
    • United States
    • U.S. District Court — Southern District of New York
    • March 21, 1938
    ...F.Supp. 117, D.C.N. Y.; United States ex rel. Carella v. Karnuth, 2 F.Supp. 998, D.C.N.Y. The relator has a case to the contrary, Annello v. Ward, 8 F.Supp. 797, D.C.Mass.; but it is out of line with controlling authority and cannot be The alien's re-entry from Canada in 1932 or 1933 was an......
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