MacKusick v. Johnson, 1735.

• Decision Date: 05 December 1924
• Docket Number: No. 1735.,1735.
• Citation: 3 F.2d 398
• Parties: MacKUSICK ex rel. PATTAVINA v. JOHNSON, Immigration Com'r.
• Court: U.S. Court of Appeals — First Circuit

3 F.2d 398 (1924)

MacKUSICK ex rel. PATTAVINA v. JOHNSON, Immigration Com'r.

No. 1735.

Circuit Court of Appeals, First Circuit.

December 5, 1924.

Arthur W. Hoe, of Boston, Mass. (MacKusick, Hoe & Wenrich, of Boston, Mass., on the brief), for appellant.

John W. Schenck, Asst. U. S. Atty., of Boston, Mass., for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an appeal from a decree of the District Court dismissing a habeas corpus petition brought in behalf of Giuseppe Pattavina, an alien immigrant and native of Italy.

The evidence introduced before the immigration officials shows that the alien first came to the United States with his father and mother, when 5 or 6 years old, and lived with them at Middletown, Conn.; that he attended school there from 1908 to 1910; that he returned to Italy in 1914, at which time he was from 19 to 21 years old; that he served in the Italian-Turkish War and 5 years in the World War and was 30 years old at the time of the hearing in April, 1923; that about 9 months prior to April, 1923, he left Italy, went to Bordeaux, France, where a month later he sailed for Havana, Cuba; that, after remaining there for about 6 months, he, with some seventeen other Italians, embarked at night upon a small boat having a crew of four men, including the captain, and on Monday, March 26, 1923, was put ashore about 3 o'clock in the morning on an island near Naples, Fla.; that on March 29, 1923, a warrant under seal, signed by Robe Carl White, Second Assistant Secretary of Labor, was issued by the Department of Labor directed to the inspector in charge of the immigration service at Jacksonville, Fla., or to any immigration inspector in the service of the United States, commanding him to take Giuseppe Pattavina into custody and grant him a hearing to enable him to show cause why he should not be deported in conformity with law, on the ground that he had landed in this country on the 26th of March, 1923, and was found in the United States in violation of the Immigration Act of February 5, 1917, as amended (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼ a et seq.), assigning as reasons therefor: (1) That he was a person likely to become a public charge at the time of his entry; (2) that he entered by water at a time or place other than as designated by immigration officials; and (3) that the quota, allotted under the Act of May 19, 1921 (Comp. St. Ann. Supp. 1923, §§ 4289½-4289½ dd), as amended by Public Resolution 55, approved May 11, 1922, to the country of which he was a national, was exhausted for the year ending June 20, 1923. That April 2, 1923, a hearing was had at Tampa, Fla., before William A. Whalen, the immigration inspector in charge, at which time the alien was advised that the Secretary of Labor had issued a warrant for his arrest, charging that he was a person likely to become a public charge at the time of his entry; that he entered by water at a time or place other than as designated by immigration officials, and that he had entered the United States subsequent to the exhaustion of the quota for Italy, the country of his nativity; and in addition to the charges set forth in the warrant, he was advised that he was charged with being unable at the time of his entry into the United States to read in the English language or any other language or dialect, including Hedrew or Yiddish. The original warrant of arrest not having been received, a telegraphic warrant of arrest was offered for the inspection of the alien, after which its meaning and the action to be taken were thoroughly explained to him. He was also advised that the sworn statement of Salvatore Gallo, one of the Italians who embarked at Havana with him, taken before an inspector at Ft. Myers on March 29, 1923, would be made a part of the hearing, it being the evidence upon which the warrant was issued. He was informed of his right to be represented at the hearing by an attorney, but declined to have one, stating that he waived his right in that respect and was ready and willing to proceed with the hearing at that time. In addition to stating his age, occupation, place of birth, religion, and attendance at school at Middletown, Conn., he stated that he never attended school in Italy; that he had a father, mother, and brother at Middletown, Conn.; that he was about five or six years old when he first came to the United States; that he returned to Italy in 1914; had been in Italy since that time, being five years in the army; that he had never taken out papers for American citizenship; that he could not read; and that he brought with him about $100 in money. He also stated about when he left Italy and the course he pursued through France and Cuba to the United States as hereinbefore stated; that on the 26th of March, 1923, he was landed on an island in the United States, where he remained until he was arrested; and that he was not inspected by the immigration officials at the time he entered the United States. The illiteracy charge being called to his attention, he was asked if he could read, and he stated that he could not, and being given the test he was found unable to read. Being further informed that he was charged with having entered the United States subsequent to the exhaustion of the quota for Italy, he was asked what he had to say to this charge, and he said: "I want to tell you why I came. I didn't want to come to the United States, but my father told me in a letter, saying he was pretty near dead, and that is why I came to the United States; that is why I came. He told me that if I didn't come, maybe I would not find him any more, and that is why I came." On being asked if there was anything further that he wished to have made a part of the hearing, he answered: "No. I didn't want to come, because I knew we would be caught, but my father wrote me and I tried to come."

On April 4, 1923, Inspector Whalen caused to be transmitted to the Bureau of Immigration at Washington a record of the hearing before him on April 2, 1923, with a letter attached in which, among other things, the inspector stated that he found that Giuseppe Pattavina was an alien, subject of Italy; that he was a person likely to become a public charge at the time of his entry; that he entered by water at a time or place other than as designated by immigration officials; that he entered the United States subsequent to the exhaustion of the quota for Italy, the country of his nativity, and that he was unable, at the time of entry into the United States, to read in the English language, or some other language or dialect, including Hebrew or Yiddish, although at that time over 16 years of age and physically capable of reading and not exempted from the illiteracy test by any of the provisions of section 3 of the Act of February 5, 1917 (section 4289¼b); that he entered the United States surreptitiously, coming from Cuba by means of a small boat. He further stated that he was of the opinion the Cuban government would not object to the deportation of the alien to Cuba, and recommended that he be deported to Cuba.

April 9, 1923, the matter came before the Board of Review for further consideration. This Board also recommended that the alien be deported to Cuba on the grounds stated by Inspector Whalen.

April 12, 1923, a warrant was issued from the Department of Labor, signed by Robe Carl White, Second Assistant Secretary of Labor, setting forth the grounds recommended by the inspector and commanding the immigration inspectors to return Pattavina to Cuba.

April 20, 1923, Congressman O'Sullivan wrote to Robe Carl White, Second Assistant Secretary, care of the Department of Labor, in behalf of the alien, inclosing five affidavits from people in Waterbury and Middletown, Conn., and on April 24, 1923, the Board of Review took the matter under consideration and granted a rehearing. The hearing having been had, the Board of Review reported to the Department of Labor recommending that the department's previous decision directing deportation remain unchanged, and it was thereupon so ordered by Robe Carl White, Second Assistant Secretary.

It further appears that April 5, 1923, Pattavina was admitted to bail in the sum of $500, pending the final...