Ex parte La Matina

• Citation: 6 F.2d 468
• Decision Date: 14 May 1925
• Docket Number: No. 2806.,2806.
• Parties: Ex parte LA MATINA. UNITED STATES v. UNITED STATES IMMIGRATION INSPECTOR et al.
• Court: U.S. District Court — District of Connecticut

6 F.2d 468 (1925)

Ex parte LA MATINA UNITED STATES v. UNITED STATES IMMIGRATION INSPECTOR et al.

No. 2806.

District Court, D. Connecticut.

May 14, 1925.

Mascolo & Dauch, of Waterbury, Conn., for applicant.

John Buckley, U. S. Atty., and George H. Cohen, Asst. U. S. Atty., both of Hartford, Conn.

THOMAS, District Judge.

Salvatore La Matina, aged 31, an alien, a native and subject of Italy, lived in Waterbury, Conn., with his wife and three year old child. He is a literate laborer. He first came to this country in 1909. He remained here until December, 1915, when he volunteered to fight for Italy in the World War. His passage to Italy was paid by the Italian government. He served in the Italian army for four years and was wounded twice. After leaving the Italian army he was married in Italy and returned to the United States on July 30, 1920, on the steamship Patria, third class, accompanied by his wife. The Italian government paid the passage for both. One week after the latter arrival in the United States he was sent to a hospital in New Haven, Conn., and from there committed to the Connecticut State Hospital at Middletown, Conn., where he is now confined as an insane public charge and is suffering from dementia prÊcox, due to causes existing prior to his last entry into the United States. The alien has a brother, Francesco La Matina, a patient in the same hospital at Middletown, Conn. He also has a brother, Vincenzo, living in Waterbury, Conn., and his mother is living in Italy.

On April 24, 1924, the Secretary of Labor issued a warrant directing the arrest and deportation of the alien on the ground that he was a person likely to become a public charge at the time of his entry, and that he has become a public charge in the State Hospital within five years after his entry into the United States, in that he has become insane. The warrant further alleges that the insanity was not affirmatively shown to have arisen subsequent to his entry. The alien, through his counsel, filed an application for a writ of habeas corpus in this court on the ground that the alien cannot be deported. The reasons urged by the alien are two: First, that he was a resident in this country for more than five years continuously before he became a public charge; and, second, that he comes within the Act of October 19, 1918, which provides, in substance, that an alien who might otherwise be liable to deportation on the ground that he might become a public charge, but who enlisted in the army of one of the cobelligerents of the United States in the World War and sustained the disability, including insanity, which was acquired while the alien was serving in the military forces of that nation, shall be readmitted, if it is proved that the disability was so acquired.

Respecting the first reason, the statutes involved are sections 3 and 19 of the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, ßß 4289ºb, 4289ºjj), which sections read as follows:

"That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feeble-minded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; * * * paupers; * * * persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of such a nature which may affect the ability of such alien to earn a living; * * * persons likely to become a public charge; * * * shall be deemed to be in the United States contrary to law, and shall be subject to deportation as provided in section nineteen of this act."

Section 19 provides:

"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, * * * any alien who within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported."

It will be noted that the alien, although he served in the World War, was absent from this country from 1915 to 1920. He was a subject of Italy when he left the country, and while the evidence taken before the immigration inspector shows that he had intended to return to this country, nevertheless, a period of five years had elapsed from the time of his departure until his return, and under our immigration laws no period of absence for more than six months is regarded as a temporary absence, and the alien would then be placed in the same class as any other alien applying for admission. Woo Shing v. U. S. (C. C. A.) 282 F. 498; U. S. ex rel. White v. Hook, Warden (D. C.) 166 F. 1007; U. S. ex rel. Ueberall v. Williams, Com'r (D. C.) 187 F. 470; Ex parte Pouliot (D. C.) 196 F. 437.

The petitioner claims that the intention of the alien concerning his return to this country should govern, but I am unable to find any authority that makes any exception where the absence has been for a period of more than six months, nor have counsel cited any authority in their brief other than records of some cases of the immigration authorities at Ellis Island. The law itself provides for no exception and the facts, undisputed in this case, show an absence of five years and leave the court without discretion, even for so worthy a cause as a voluntary enlistment in the army of an ally. The situation here presented is all the more unfortunate as well as distressing because the applicant served in the Italian army in the campaigns of 1915, 19...