In re Cartellone, 33074.

• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
• Citation: 148 F. Supp. 676
• Docket Number: No. 33074.,33074.
• Parties: In the Matter of Adolfe CARTELLONE, a.k.a. Joseph James Prince.
• Decision Date: 07 February 1957

148 F. Supp. 676

In the Matter of Adolfe CARTELLONE, a.k.a. Joseph James Prince.

No. 33074.

United States District Court N. D. Ohio, E. D.

February 7, 1957.

148 F. Supp. 677

Henry C. Lavine, Cleveland, Ohio, for petitioner.

Sumner Canary, Dist. Atty., Eben H. Cockley and Russell E. Ake, Asst. U. S. Attys., John M. Lehmann, Dist. Director, Immigration & Naturalization Service, Cleveland, Ohio, for respondent.

WEICK, District Judge.

This is an action brought under the Administrative Procedure Act to review an order of deportation. Title 5 U.S.C. A. § 1001 et seq.

The deportation proceedings were instituted in 1941. Hearings were conducted in Cleveland in 1942 which resulted in an order of deportation being issued by the Attorney General on October 7, 1947 under the provisions of the Immigration Act of 1917. Title 8 U.S.C.A. § 155.¹

A previous petition for a judicial review of the deportation order was denied by the District Court on the ground that the Administrative Procedure Act was inapplicable. Prince v. Commissioner of Immigration & Naturalization, D.C., 87 F.Supp. 53. The Court of Appeals reversed, holding that the order of deportation was subject to judicial review under the provisions of said Act. 6 Cir., 1950, 185 F.2d 578. In its opinion the Court of Appeals summarized the facts in the case as follows:

"Appellant, an alien, born in Italy, was, at the age of two, brought to the United States by his grandmother forty-eight years ago, and has continuously resided in this country since that time. He is married to a native American citizen and has a daughter sixteen years old. Twenty-nine years ago, he was convicted of a bank robbery and sentenced to a term of twenty years in prison, of which he served eight years, and was thereafter paroled, more than twenty years ago. He has been discharged from parole many years.

"In 1941, deportation proceedings were brought against him in Cleveland, Ohio, under Title 8 U.S.C.A. § 155, in which he was charged with having, in 1934, left the United States at Niagara Falls and entered Canada with his wife at a place called Crystal Beach, a nearby resort, where, it was charged, he had remained approximately an hour and a half, and then recrossed to the United States. It was claimed that appellant's re-entry into the United States was illegal because he had not been in possession of an immigration visa and, not being exempt from the quota, had committed an offense involving moral turpitude, namely, the robbery of 1921, prior to his entry — that is, his re-entry — from Canada. It appears that the government learned of such claimed re-entry from Canada through the admission of appellant himself, who stated, during the course of his examination in 1942, that, as mentioned above, he had visited Crystal Beach in Canada with his wife for an hour or so in 1934. In subsequent proceedings, however, appellant stated to the immigration officials that he had been mistaken about leaving Niagara Falls and entering Canada, and that, instead, he had passed over a bridge from Niagara Falls to Goat Island, a part of the United States, and had returned from that place after a visit of an hour or so in company with his wife; that he had told his wife of his testimony

148 F. Supp. 678

about going to Canada, whereupon she informed him that he had never been at Crystal Beach but had been at Goat Island instead. Appellant's wife later testified in the deportation proceedings to the same effect."

Following the decision of the Court of Appeals, a motion was filed in the Board of Immigration Appeals by the Assistant Commissioner, Adjudications Division, to withdraw the order of deportation and reopen the proceedings for further hearing.

In the motion, the Commissioner, among other things, stated that the petitioner may desire to offer additional evience concerning the issue as to his alleged re-entry into the United States from Canada in 1934, which was the sole issue in dispute. The motion to reopen was granted by the Board on May 22, 1951.

The reopened hearing was held in Cleveland on June 16, 1955 before Special Inquiry Officer George Fein. The petitioner appeared at the hearing and was represented by counsel.

At the beginning of the hearing the Special Hearing Officer addressed counsel for petitioner as follows:

"Special Inquiry Officer to counsel:

"You may proceed.

"By Counsel:

"At this time I do not choose to present any additional evidence or to add anything to the previous evidence that has been given on behalf of relator and witnesses and I choose to rest on that record and ask that this proceeding be dismissed at this time."

The examining officer offered in evidence a road map prepared by Rand-McNally Company showing Crystal Beach, Ontario and Goat Island, United States.

On January 23, 1956, the Special Inquiry Officer, after reviewing the entire record, adopted findings of fact and conclusions of law.

As to the controlling issue of fact in dispute, the Special Inquiry Officer found against the petitioner, namely, that he had entered the United States from Canada and he ordered the petitioner deported.

An appeal was then prosecuted by petitioner to the Board of Immigration Appeals, and after hearing the appeal was dismissed.

A subsequent motion to reopen, to permit petitioner to file his petition for suspension of deportation, was denied by the Board.

The present petition for review followed and was heard by the Court on the record. The case was argued orally and by briefs.

The sworn testimony of petitioner at the hearing on February...