De Lucia v. Flagg

• Citation: 297 F.2d 58
• Decision Date: 11 January 1962
• Docket Number: No. 13365.,13365.
• Parties: Paul DE LUCIA, Plaintiff-Appellant, v. W. T. FLAGG, District Director, Chicago District, Immigration and Naturalization Service, Department of Justice, United States of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

297 F.2d 58 (1961)

Paul DE LUCIA, Plaintiff-Appellant, v. W. T. FLAGG, District Director, Chicago District, Immigration and Naturalization Service, Department of Justice, United States of America, Defendant-Appellee.

No. 13365.

United States Court of Appeals Seventh Circuit.

December 4, 1961.

Rehearing Denied January 11, 1962.

William Scott Stewart, Chicago, Ill., for appellant.

James P. O'Brien, U. S. Atty., Robert N. Caffarelli and John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., Charles Gordon, Regional Counsel for Northwest Region, Immigration and Naturalization Service, Washington, D. C., of counsel, for appellee.

Before KNOCH, KILEY and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

This is an appeal from a summary judgment sustaining a deportation order. The order was issued after a hearing before a special inquiry officer of the Immigration and Naturalization Service. The respondent, Paul De Lucia, appealed the ruling to the Board of Immigration Appeals. The appeal was dismissed. The respondent thereafter sought a review in the District Court.

The questions presented are: (1) Whether the findings of the special inquiry officer are supported by substantial evidence, (2) whether the retrospective provisions of the Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1101 et seq.) are applicable to an alien excludable at the time of his entry under the Passport Act of 1918 (22 U.S.C.A. §§ 223-226), and (3) whether the respondent was afforded a fair hearing before the administrative tribunal.

De Lucia, a native and citizen of Italy, entered the United States at New York City August 12, 1920. He was naturalized September 27, 1928, by order of the United States District Court for the Northern District of Illinois. A decree cancelling his certificate of naturalization was entered June 11, 1957, in the same court by Judge LaBuy. United States v. De Lucia, D.C., 163 F.Supp. 36. The cancellation was based on a finding that respondent falsely assumed the name of Paul Maglio when he entered this country; that he failed to disclose his true identity; and that he concealed other material facts. This Court affirmed. 7 Cir., 256 F.2d 487. Certiorari was denied by the Supreme Court. 358 U.S. 836, 79 S.Ct. 59, 3 L.Ed.2d 72.

The deportation proceeding was initiated by an order to show cause wherein it was charged that respondent when he entered the United States was not in possession of a passpart or other official document showing his origin and identity and that he had been convicted of the crime of voluntary homicide and sentenced to prison prior to his entry; that as a consequence he was deportable by reason of § 241(a) (1) of the Immigration and Nationality Act of 1952 (8 U.S. C.A. § 1251) in that he was within one or more of the classes excludable by law existing at the time of his entry, to-wit: A person who had not presented a passport or other travel document showing his origin and identity as required by the Passport Act of 1918 and the Executive Order in effect at the time of entry. (Exec. Order No. 2932, August 18, 1918); also, a person who had been convicted of a crime involving moral turpitude prior to entry as proscribed by Section 3 of the Naturalization and Immigration Act of 1917 (8 U.S.C. 136).

By stipulation of counsel, the transcript of the testimony and the exhibits submitted to Judge LaBuy in the naturalization proceeding with certain immaterial exceptions were made a part of the record considered by the Special Inquiry Officer in the deportation proceeding. Since a recital of this evidence is contained in Judge LaBuy's opinion, it is deemed unnecessary to repeat the evidence in detail here.

Section 1(a) of the Passport Act of 1918 authorized the President to issue rules and regulations covering the entry and departure of all aliens. Pursuant to this authorization, Executive Order 2932 was issued August 8, 1918. Section 5 of the Order defined a passport as one "which shows the identity and nationality of the individual for whose use it was issued. * * *" Section 31 of the Order provided that "no alien shall be allowed to enter the United States unless he bears a passport duly visaed in accordance with the terms of the Joint Order of the Department of State and the Department of Labor issued July 26, 1917." The Joint Order required each alien entering the United States "to present a valid passport or other official document in the nature of a passport, satisfactorily establishing his identity and nationality. * * *"

The Special Inquiry Officer found that respondent at the time he entered the United States did not present a passport showing his true identity in that he was not the person described therein and accordingly, the passport he presented did not meet the requirements of Executive Order 2932. He concluded that, because of this, respondent was not entitled to enter the United States under the provisions of the Order and the underlying Passport Act of 1918, and finally, as a consequence, respondent was excludable under the then existing laws and is presently deportable under the provisions of § 241(a) (1) of the Immigration and Nationality Act of 1952.

The evidence showed that in his naturalization petition the respondent stated that his name was Paul Maglio; that he arrived at the port of New York August 10, 1920 on the S.S. Ryndam; that he was born in Apricena, Italy, July 10, 1898; and that his mother's maiden name was Nunzia Maria Torelli. An alien registration form executed by the respondent in 1958 contained the same information as to name and manner of entry. The records of the S.S. Ryndam, which sailed from Boulogne August 1, 1920, listed a passenger under the name of Paolo Maglio who was born in Apricena and whose father was Enrico Maglio.

The respondent did not produce his passport at the hearing as requested. The Officer concluded, however, that he possessed a passport at the time of his entry into this country because, as the evidence showed, if he were not in such possession, he would have been detained at the point of entry for a Board of Special Inquiry and a notation of this would have been made on the ship's manifest.

The evidence also showed that one Paul Maglio exists and that he entered this country August 3, 1920 on the S.S. Duca Degli Abruzzi nine days before respondent's entry; that he was born July 10, 1898 in Apricena, Italy; that his mother's maiden name was Nunzia Maria Torelli; and that his father was Enrico Maglio. This Paul Maglio is not the respondent. The evidence showed that respondent was born Felice De Lucia November 14, 1897, in Naples, Italy; that his mother's maiden name was Maria Annunciata; and that his father was ...