In re Cartellone

• Decision Date: 07 February 1957
• Docket Number: No. 33074.,33074.
• Citation: 148 F. Supp. 676
• Parties: In the Matter of Adolfe CARTELLONE, a.k.a. Joseph James Prince.
• Court: U.S. District Court — Northern District of Ohio

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.

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 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 2, 1942, which was the basis for the finding that petitioner re-entered this country from Canada in 1934 was as follows:

By Presiding Inspector To Respondent:

"Q. When and where did you last enter the United States? A. New York about 1903.

"Q. By what means did you enter the United States? A. By boat.

"Q. What was the name of the boat? A. Oh, I don't know that.

"Q. For what purpose did you enter the United States? A. To join my mother.

"Q. Have you ever been away from the United States since you came here about 1903? A. Not that I know of.

"Q. Have you ever been deported from the United States? A. No, sir.

"Q. Have you ever been to Canada, Cuba, Mexico, New Foundland or any other place outside the United States? A. I went to Canada, Crystal Beach.

"Q. When was that? A. 1934 or 1935, I think — 1934, I believe." By Mr. Wolpaw:

"Q. For what purpose? A. Just to go to the beach.

"Q. How long were you gone? A. Just an afternoon."

By Presiding Inspector To Respondent:

"Q. Who accompanied you at that time? A. My wife.

"Q. What is her name? A. Margaret Prince.

"Q. How did you travel to Canada? A. By car.

"Q. Your own automobile? A. My own automobile.

"Q. Which way did you go to Canada? A. Buffalo, across the bridge.

"Q. How did you return? A. By the bridge — same bridge.

"Q. Where were you residing at the time? A. In Cleveland.

"Q. At the time of your admission — are you able to state more definitely when this was in 1934, or 1935? A. I think it was 1934.

"Q. What time of the year? A. It was summer time.

"Q. Could you say approximately what month? A. It was either July or August, it was hot.

"Q. Then you would say it was either in July or August, 1934, is that correct? A. Yes.

"Q. Were you inspected by a United States immigrant inspector at that time? A. I don't remember. All I showed was my ownership of the car.

"Q. Did you eat in Canada at that time? A. No.

"Q. You went to Canada for what purpose? A. For the bathing beach.

"Q. Did anyone question you as to where you were born, how long you had been in Canada? A. Well, I will tell you, I don't know. They did ask me where I was going.

"Q. Was that on the Canadian or American side? A. American side.

"Q. Have you ever been out of the United States any other time except this time mentioned? A. No, sir.

"Q. Were you in possession of a United States immigration visa at the time of your arrival in July or August, 1934, at Buffalo, New York from Canada? A. No."

At the hearing held March 12, 1947, petitioner testified that he now was in "great doubt" whether he left the United States in 1934. He related his conversation with his wife after the first hearing in which she told him that they did not go to Canada, but went over a bridge to an island which was in the United States.

Mrs. Prince corroborated her husband in her testimony that they did not drive to Crystal Beach, but to Goat Island in the United States.

Section 19(a) of the Immigration Act of 1917, 8 U.S.C.A. § 155(a), provided that "the decision of the Attorney General shall be final." A similar provision was contained in the Immigration Act of 1952, § 242(b), 8 U.S.C.A. § 1252(b).

These provisions have been construed to relate "to finality in administrative procedure rather than as cutting off the right of judicial review in whole or in part." Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 594, 99 L. Ed. 868.

The Administrative Procedure Act authorizes a review by the Court and inquiry as to the fairness of the hearing and as to whether the order of the agency was supported by substantial evidence. 5 U.S.C.A. § 1009(e).

Was the order of deportation in the case at bar supported by substantial evidence?

The testimony of petitioner at the hearing held on Feb. 2, 1942 was under oath. The hearing was in a quasi-judicial proceeding. His testimony constituted an admission against interest. United States ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633. In the absence of mistake, such evidence would be conclusive. It would certainly be substantial evidence sufficient alone to base an order of deportation thereon. Bechard v. Ebey, 7 Cir., 300 F. 558.

The immigration authorities did not learn of any claimed mistake until more than five years later, to-wit: at the hearing of March 12, 1947.

Petitioner and his then attorney had signed a brief filed before the Attorney General in which they argued that petitioner's short sight-seeing trip to Crystal Beach, Canada and...