Moncado v. Ramsey, No. 13670.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSANBORN, JOHNSEN, and STONE, Circuit
Citation167 F.2d 191
Decision Date07 April 1948
Docket NumberNo. 13670.
PartiesMONCADO v. RAMSEY.

167 F.2d 191 (1948)

MONCADO
v.
RAMSEY.

No. 13670.

Circuit Court of Appeals, Eighth Circuit.

April 7, 1948.


167 F.2d 192

Morris A. Shenker, of St. Louis, Mo. (Bernard J. Mellman, of St. Louis, Mo., on the brief), for appellant.

Drake Watson, U. S. Atty., of St. Louis, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN, and STONE, Circuit Judges.

SANBORN, Circuit Judge.

The appellant is held for deportation to Italy under a warrant issued on November 1, 1938, by the Assistant to the Secretary of Labor, which recites that he has "become satisfied that the alien Diego Moncado or Salvatore or Samuel or Sam or Richard or Dick Moncado alias Sam Montana alias Marlo alias Marlow alias Marlowe, who entered the United States at New York, N. Y., ex SS `Calabria' on the 16th day of May, 1913, is subject to deportation under section 19 of the Immigration Act of February 5, 1917, being subject thereto under the following provisions of the laws of the United States, to wit: The act of 1917 8 U.S.C.A. § 155, in that he has been found receiving, sharing in, or deriving benefit from the earnings of a prostitute; and that he has been found assisting a prostitute." Execution of the warrant was deferred until the appellant, who had been convicted of a federal offense and sentenced to imprisonment, should be released from imprisonment.

After his release, the appellant was taken into custody by the Immigration authorities, but was later permitted to be at liberty on bond because the relations between this country and Italy made it impossible to then deport him. He was again taken into custody in August, 1947.

On August 13, 1947, he applied for a writ of habeas corpus, asserting that his detention was illegal. The District Court granted the writ, but, after a hearing, discharged it, dismissed the appellant's petition, and remanded him to the custody of the appellee. This appeal followed.

The contentions of the appellant are, in substance, as follows: (1) That there was no adequate evidentiary basis for the determination that he is an alien; and (2) that he did not have a fair hearing before the Immigration Inspectors, because: (a) he did not have an opportunity to be represented by counsel of his own choosing, or to present evidence in his own behalf; (b) the evidence upon which the deportation warrant was based was not properly identified; and (c) the appellant was given no opportunity to controvert such evidence or to cross-examine those who gave it.

The record shows: That the "Warrant for Arrest of Alien," which charged the appellant with being an alien subject to deportation for having been found sharing in the earnings of a prostitute, was issued on July 8, 1937, by the Assistant to the Secretary of Labor; that the appellant was taken into custody at the City Jail, St. Louis, Missouri, July 23, 1937; that, at a hearing held on that day by Immigrant Inspector R. M. Wesley, the Warrant for Arrest was read to the appellant and inspected by him; that he was informed that the purpose of the hearing was to afford him an opportunity to show cause why he should not be deported; that he stated that his name was Samuel Richard Moncado; that he was informed by the Inspector that he was entitled to be represented by counsel of his own selection; that he stated that he wanted a lawyer and that it might take a couple of weeks for him to get one; that thereupon the hearing was continued to July 30, 1937.

On July 30, 1937, the appellant appeared without counsel, and the hearing was continued to August 5, 1937, to enable him to

167 F.2d 193
obtain counsel. On that day he stated that he had not completed his arrangements for counsel. The hearing was therefore continued to August 24, 1937. On August 24, the appellant stated that he had been unsuccessful in obtaining an attorney, and the hearing was continued to September 16, 1937. On that day he stated that he understood that the Italian Consul would represent him, and the hearing was continued to September 22, 1937, to enable the Italian Consul to be present. On September 22, the appellant was asked if he had an attorney present to represent him. He stated that he had such an attorney — Claudio Delitala. Mr. Delitala said that he was there to represent the appellant. The appellant said he was ready to proceed, and his counsel stated that he was ready provided that he would have an opportunity at a later date to cross-examine witnesses and to present other evidence

The appellee, as the "Hearing Officer," conducted the hearing on September 22, 1937. In support of the charge contained in the Warrant for Arrest, he introduced the following evidence:

1. A statement made by appellant to a United States Immigrant Inspector on June 16, 1937, the substantial correctness of which the appellant admitted. This statement shows that the appellant's name is Salvatore or Samuel Moncado; that he is sometimes called Dick; that his father's name is Samuel Moncado, or, in Italian, Salvatore; that his mother's name is Mary Marlo, and that he has used the name Sam Marlo; that he has two brothers and six sisters, — Vincent and Joseph, Lena, Virginia, Grace, Elsie, Alice and Rose; that he presumes his parents were born in Italy; that possibly his eldest brother and sister were born there; that his parents live in Syracuse, New York; that they lived in St. Louis, Missouri, at 2318 Chouteau, from about 1924 until about 1932; that their address in Syracuse was 1200 Willis Avenue; that he thinks he was born in Syracuse, New York, May 24, 1907; that he has no birth certificate; that he does not know when his parents came to the United States; that he believes he is a citizen of the United States; that he went to kindergarten in Syracuse when six or seven years old, and remembers nothing before that; that he thinks he was born in Syracuse because his earliest recollections are of Syracuse; that it could be possible that he was born in Italy and brought to the United States when a small child; that he was married on December 15, 1925, to Mildred Nichols, who divorced him in January, 1936; and that he has a son who will be eleven years old October 1, 1937.

2. A certified copy of a sworn statement of Salvatore Moncado, taken at Syracuse, New York, before an officer of the Immigration and Naturalization Service on May 28, 1937, which is, in substance, as follows: That he lives at 957½ Emerson Avenue, Syracuse, New York; that he has not been admitted to citizenship; that he was married to Maria April in Canicatti, Italy, April 12, 1893; that they have nine...

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3 practice notes
  • Schoeps v. Carmichael, No. 12008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 1949
    ...rel. Bilokumsky v. Tod, supra; Low Wah Suey v. Backus, 1912, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed. 1165; Moncado v. Ramsey, 8 Cir., 1948, 167 F.2d 191, 196; United States ex rel. Medeiros v. Watkins, 2 Cir., 1948, 166 F.2d 897, exhaustive collation of authorities at page 899; United States e......
  • United States v. O'ROURKE, No. 14978.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 18, 1954
    ...Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560; Schoeps v. Carmichael, 9 Cir., 177 F.2d 391, 395; Moncado v. Ramsey, 8 Cir., 167 F.2d 191, 196; United States ex rel. Doukas v. Wiley, 7 Cir., 160 F.2d 92, 95; United States ex rel. Karpathiou v. Schlotfeldt, 7 Cir., 106 F.2d 928, ......
  • Maroon v. Immigration & Naturalization Service, No. 17926.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 25, 1966
    ...Petitioner testified, "My father said I was born there (Mexico) when he got (the naturalization) papers." Cf. Moncado v. Ramsey, 8 Cir., 167 F.2d 191, In our opinion, in the circumstances of this case, the statements made by petitioner's father in Exhibits 10 and 12 meet the test of trustwo......
3 cases
  • Schoeps v. Carmichael, No. 12008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 23, 1949
    ...rel. Bilokumsky v. Tod, supra; Low Wah Suey v. Backus, 1912, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed. 1165; Moncado v. Ramsey, 8 Cir., 1948, 167 F.2d 191, 196; United States ex rel. Medeiros v. Watkins, 2 Cir., 1948, 166 F.2d 897, exhaustive collation of authorities at page 899; United States e......
  • United States v. O'ROURKE, No. 14978.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 18, 1954
    ...Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560; Schoeps v. Carmichael, 9 Cir., 177 F.2d 391, 395; Moncado v. Ramsey, 8 Cir., 167 F.2d 191, 196; United States ex rel. Doukas v. Wiley, 7 Cir., 160 F.2d 92, 95; United States ex rel. Karpathiou v. Schlotfeldt, 7 Cir., 106 F.2d 928, ......
  • Maroon v. Immigration & Naturalization Service, No. 17926.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 25, 1966
    ...Petitioner testified, "My father said I was born there (Mexico) when he got (the naturalization) papers." Cf. Moncado v. Ramsey, 8 Cir., 167 F.2d 191, In our opinion, in the circumstances of this case, the statements made by petitioner's father in Exhibits 10 and 12 meet the test of trustwo......

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