Di Pasquale v. Karnuth
| Decision Date | 11 January 1947 |
| Docket Number | No. 77,Docket 20347.,77 |
| Citation | 158 F.2d 878 |
| Parties | DI PASQUALE v. KARNUTH et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Benedict T. Mangano, of Albany, for appellant.
R. Norman Kirchgraber, of Buffalo, for appellees.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
DiPasquale appeals from an order, dismissing a writ of habeas corpus to review an order, deporting him to Italy for two reasons: (1) Because he had been convicted of robbery before he entered the United States; and (2) because he had been again convicted within five years after he had entered, and had been sentenced for more than a year.1 The facts were as follows. DiPasquale lawfully entered the United States from Italy on June 21, 1907, at the age of fourteen; he has resided in Buffalo thereafter during all the period here involved. On May 11, 1915, he was convicted of robbery (the length of the sentence does not appear), and he was again convicted of robbery on June 5, 1919 (his sentence then being for thirty-eight years). He was released on parole on December 13, 1937; but was arrested for deportation two years later, and was ordered deported on June 11, 1945. Admittedly, he is subject to deportation, if he re-entered the United States on September 15, 1918; and admittedly he is not so subject, if he did not: that is the only issue in the case. His supposed re-entry was on the night of September 15, 1918, when he went by sleeping car from Buffalo to Detroit upon the Michigan Central Railroad, whose route lies through Canada. He was asleep during the time he was outside the United States, and woke up in Detroit; there was no evidence that he "knew or had any intention of leaving the United States or of entering Canada." The ticket agent who sold his ticket over the route did not volunteer any explanation of where the car would go except as to the terminus, and passengers were guarded so that "they could not leave the train in Canada."
If the word, "entry," in the statute extends to the mere physical passage of an alien across the boundaries of the United States, regardless of any intent, the order was right; but, if so, an alien who is arrested or abducted, and carried against his will out of the country and then back again into it, makes an "entry." We do not understand that the Director of Immigration takes this extreme position; certainly no court has done so; the furthest stretch given to the word was in Ward v. DeBarros,2 and even there the court, arguendo, excluded an involuntary entry. However, that is not the case at bar; DiPasquale was not carried out of, and back into, the United States against his will; he boarded a car which, had be inquired, he would have learned would take him outside the United States and back into it. True, he did not know its route, but he acquiesced in whatever route the railroad might choose to pull the car; and if the factor of intent is satisfied by such an acquiescence, he made an "entry." That is what the First Circuit held in Ward v. DeBarros, supra.2 On the other hand, if the necessary intent demands knowledge by the alien that the route which he is to take will carry him across our borders, then DiPasquale did not enter when, asleep, he came into Detroit. In Zurbrick v. Borg,3 the Sixth Circuit held that if the alien did know this, he "entered"; and we agree. Taguchi v. Carr4 is not in point; true, Taguchi was forced outside the United States, and it was a hard constraint that put him to the choice; but he did choose to re-enter and knew he was entering when he did. Claussen v. Day,5 so far as it counts at all, counts in DiPasquale's favor; and these are the only decisions near enough to deserve discussion.
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Ramirez v. U.S. Immigration & Customs Enforcement, Civil Action No.: 18-508 (RC)
...wrote in [an] early immigration case that deportation decisions cannot be made a ‘sport of chance.’ ") (quoting Di Pasquale v. Karnuth , 158 F.2d 878, 879 (2d Cir. 1947) ). ICE violates the APA by making the outcomes of its detention decisions depend not on the factors Congress has identifi......
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...Cir., 47 F.2d 604, 605; Lewis v. Frick, 233 U.S. 291, 297, 34 S.Ct. 488, 58 L.Ed. 967. This is not a "sleeping car" case, Di Pasquale v. Karnuth, 2 Cir., 158 F.2d 878, nor does it present a situation similar to that shown in Del Guercio, etc., v. Delgadillo, 9 Cir., 159 F.2d 130, reversed i......
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...re-entered this coun- try after having taken an overnight sleeper from Buffalo to Detroit on a route lying through Canada. Di Pasquale v. Karnuth, 158 F.2d 878. Judge Hand recognized that the alien ' acquiesced in whatever route the railroad might choose to pull the car,' id., at 879, but h......
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