Dorto v. Clark

• Decision Date: 29 July 1924
• Docket Number: 1600.
• Citation: 300 F. 568
• Parties: DORTO v. CLARK, U.S. Immigration Inspector.
• Court: U.S. District Court — District of Rhode Island

300 F. 568

DORTO v. CLARK, U.S. Immigration Inspector.

No. 1600.

United States District Court, D. Rhode Island.

July 29, 1924

O'Shaunessy & Cannon, of Providence, R.I., for petitioner.

Harold A. Andrews, Sp. Asst. U.S. Atty., of Providence, R.I., for Immigration Inspector.

BROWN District Judge.

Upon the petition for the writ of habeas corpus, alleging that the petitioner is unlawfully deprived of her liberty by William M. Clark, inspector in charge of the Immigration Service of the district of Providence, R.I., for the purpose of deportation, and that her imprisonment and detention is without any legal authority, because the petitioner is not an alien, but is a citizen of the United States by reason of being the wife of a duly naturalized citizen of the United States, and therefore not subject to deportation, the writ of habeas corpus was issued and the petitioner was produced by the respondent, who made return and answer, denying that the petitioner is a citizen of the United States by virtue of her being the wife of an American citizen, because she became the wife of an American citizen on September 23, 1922, one day after the enactment of the so-called Cable Act of September 22, 1922, 42 Statutes at Large, 1021, 1022 (Comp. St. 1923, Sec. 4358b), and setting forth the following warrant, dated March 18, 1924:

'United States of America, Department of Labor, Washington.

'55237/964

'To Commissioner of Immigration, Ellis Island, N.Y.H., or to any Officer or Employee in the U.S. Immigration Service:

'Whereas, from proofs submitted to me after due hearing before Immigrant Inspector M. A. Pitt, held at Ellis Island, N.Y.H., I have become satisfied that the alien Emilie Carlevale, or Emilie Dorto, who landed at the port of New York, N.Y., ex S.S. America on the 14th day of June, 1922, has been found in the United States in violation of the Immigration Act of February 5, 1917 as amended, to wit, 'That she was a person likely to become a public charge at the time of her entry, and that the quota for the year ending June 30, 1922, allotted under the Act of May 19, 1921, as amended by Public Resolution 85, approved May 11, 1922, to the country of which she is a native, was exhausted at the time of her entry,' and may be deported in accordance therewith:

'I, Robe Carl White, Second Assistant 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 she came, at the expense of responsible steamship company. The expenses incident to placing the alien on board vessel for deportation, including the services of an attendant, if necessary, at the usual rate, are authorized payable from the appropriation 'Expenses of Regulating Immigration, 1924.' The alien may be permitted to reapply for admission when a quota is available. Delivery of the alien and acceptance for deportation will serve to cancel the outstanding release bond.

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

'Witness my hand and seal this 18th day of March, 1924.

'(Signed) Robe Carl White, 'Second Assistant Secretary of Labor.'

From oral testimony and from United States Exhibit A, docket entries of the United States District Court for the Southern District of New York, it appears that after the hearing in June, 1922, referred to in the present warrant, the petitioner on June 22, 1922, began habeas corpus proceedings; that on July 20th an order dismissing the writ was entered, and an appeal allowed to the Circuit Court of Appeals; and that on April 25, 1923, there was filed a mandate of the Circuit Court of Appeals dismissing the appeal.

The petitioner, being released on giving bond, came to Providence, R.I., in June or July, 1922, where her relatives were residing, and where about August 1, 1922, she first met Dorto, now her husband. She testified that after two or three days they agreed to marry, and that she then went to Dorto's tenement and lived with him as his wife. Three witnesses testified that in August, 1922, Dorto introduced them to the petitioner, saying, 'This is my wife,' and 'I make you acquainted with my wife.' A certificate of marriage was put in evidence, showing their marriage on September 23, 1922, at Attleboro, according to the laws of Massachusetts, before Frank S. Babcock, justice of the peace and city clerk of Attleboro. Dorto testified that they had applied to the magistrate on September 9, 1922, to marry them, but had been told that they must wait two weeks, which they did. The fact that they made application to marry and were subsequently married gives support to their testimony that they intended from the first to enter into a permanent union. It appears, also, that the petitioner had been advised by a lawyer in New York that she might remain in the country if she became the wife of an American citizen. According to the testimony of both Mrs. Dorto and Mr. Dorto, there was both mutual love and a desire to enable Mrs. Dorto to remain in the United States as the wife of a citizen, and it is not improbable that without mutual attraction the marriage would not have taken place. It cannot be said that this is a case where the marriage was contracted merely as a form, and solely for the purpose of evading the provisions of the Immigration Law.

The petitioner testified, also, that she was with child, of which Dorto is the father.

Counsel for the petitioner contends that upon the evidence we should find that the parties contracted a common-law marriage in Rhode Island in August, 1922, and therefore by marriage she became a naturalized citizen before the passage of the Act of September 22, 1922, which declared that marriage of a woman to an American citizen does not confer citizenship. It is then argued that, as her common-law marriage made her an American citizen, she thereby acquired a right to remain in this country, irrespective of the fact that she unlawfully entered the country in excess of quota.

Counsel cites Kelly v. Owen, 7 Wall. 496, 19 L.Ed. 283; Compiled Stats. 1916, Sec. 3948, and cases cited in note on page 4820; 14 Op.Attys.Gen. 403; 28 Op.Attys.Gen. 504.

The Circuit Court of Appeals of the Ninth Circuit in Hopkins v. Fachant, 130 F. 839, 65 C.C.A. 1, considered the case of the marriage of an alien woman pending proceedings for deportation, and the Circuit Court of Appeals for the Second Circuit, in Re Nicola, 184 F. 322, 106 C.C.A. 464, dealt with the case of a woman who had been stopped from entry by the immigration authorities.

In United States v. Tod (C.C.A.) 285 F. 523, 26 A.L.R. 1316, the Circuit Court of Appeals of the Second Circuit considered section 19 of the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4jj), saying:

'Before concluding this opinion, we may add that it has not escaped our observation that Congress, in enacting the Immigration Act of 1917, so as to provide in section 19: 'That the marriage to an American citizen of a female of the sexually immoral classes * * * shall not invest such female with United States citizenship if the marriage of such alien female shall be solemnized after her arrest or after the commission of acts which make her liable to deportation...