Sercerchi v. Ward, 6030.

• Decision Date: 17 April 1939
• Docket Number: No. 6030.,6030.
• Citation: 27 F. Supp. 437
• Parties: SERCERCHI v. WARD, Commissioner of Immigration.
• Court: U.S. District Court — District of Massachusetts

27 F. Supp. 437

SERCERCHI v. WARD, Commissioner of Immigration.

No. 6030.

District Court, D. Massachusetts.

April 17, 1939.

Abraham Zintz, of Cambridge, Mass., for petitioner.

John A. Canavan, U. S. Atty., and Alfred G. Malagodi, Asst. U. S. Atty., both of Boston, Mass., for defendant.

FORD, District Judge.

This is a petition for a writ of habeas corpus, the petitioner contending that he has been wrongfully ordered deported.

The petitioner, Enrico or Henry Sercerchi or Serchi, is now about fifty years of age and a native of Italy. It is agreed that he had a legal admission to the United States on May 26, 1910 at Fort Kent, in the State of Maine. Between the years 1910 and 1913 he worked for the Merry Bros., of Bangor, Maine, at railroad construction work at Sqaw Pan, Maine, and in 1913 went to work for the Canadian Pacific Railway Company and remained in their employ up to April 27, 1926. He was employed by the latter company as a laborer, interpreter, extra gang foreman, and section man during this period. In the year 1911 he was married and lived with his wife and her sister until 1916 in Millinocket, Maine, where his third child was born, his other children, of which there were five, being born in Canada. The Division Headquarters of the railroad were at Brownville Junction, Maine. After the birth of the third child he and his wife lived in box cars of the railroad company in Brownville Junction, Maine. In 1918 his wife left him and returned to Woodstock, New Brunswick, Canada, which was her home before her marriage, and has lived there ever since. The petitioner's principal job was that of a repair foreman and it was necessary for him to travel around from place to place where the work was to be done in Maine and Canada. After his wife left him he visited Canada at different times through Houlton and Vanceboro, Maine, where, because of these frequent trips on the railroad and to visit his wife, he was well known to the United States Immigration inspectors; they never interfered with his goings and comings. The gang in which he was employed worked out of McAdam Junction, New Brunswick, Canada, on the railroad between St. John, New Brunswick and Megantic, P. Q., Canada. He testified the longest time he spent in Canada working for the railroad during the period from 1913 to 1926 was two or three weeks, and his longest visit for the purpose of visiting his wife was two days.

Although the petitioner at the initial hearing testified that he left McAdam Junction, New Brunswick, Canada, in 1920 and 1921 and went to Frankfort, Maine, to work in the summer, and from there to Florida in the winter, and in the subsequent years up to 1926 he worked in various towns in Maine, visiting Florida in winter for the purpose of raising tomatoes and only returned to Canada except for a visit for a day or two, yet the record of the Canadian Pacific Railway Company showed that he entered their employ March 14, 1913, secured a leave of absence on account of illness February 20, 1926, and was dismissed from the service April 27, 1926. The records of the company further showed that the petitioner resided at McAdam Junction, New Brunswick, Canada, from May 1, 1922 until February 20, 1926. The records of the Canadian Pacific Railway Company were silent as to the various dates he was employed in Maine and Canada. In a later hearing the petitioner claimed, when the record of the Canadian Pacific Railway Company was exhibited to him, that he was in error as to the dates; that he actually left the employ of the railroad in 1925 or 1926 and then returned to Maine where he worked for various contractors visiting Florida to raise tomatoes in the winter. He denied he ever lived in McAdam Junction, or that he gave McAdam Junction as his place of residence to the railroad officials and maintained he lived in Maine and never gave up his residence or domicile he had acquired in that state.

On February 13, 1925 the petitioner became a naturalized citizen of Canada. He made the petition at Woodstock, New Brunswick, Canada, the original and the then home of his wife. He had the Canadian certificate of naturalization in his possession at the time of the hearing. On the reverse side of the certificate under the heading of "Particulars" appeared the following, "Henry Sercerchi, address: Woodstock, New Brunswick, Canada; trade or occupation: sectionman." By the provisions of Chapter 138, Revised Statutes of Canada, 1927, Section 4(a), the following conditions and qualifications were necessary for naturalization: (1) residence within His Majesty's Dominions for a period of not less than five years; (2) residence in Canada for not less than one year immediately preceding the application. Statements of the possession of these qualifications were demanded over the signature of the applicant in the petition for naturalization. The petitioner testified that at this time he intended to bring his wife and family back to the United States and consulted a barrister in Woodstock, New Brunswick, one C. J. Jones. The latter advised him to become a citizen and in that way bring the whole family into the country. The petitioner testified that he never intended really to become a citizen of Canada; that he had a domicile in the United States and intended to keep it and would not have executed a petition for naturalization except upon the advice of the barrister; that after he procured the certificate of naturalization his wife changed her mind and refused to come to the United States. He further testified that at this time he left Canada and that he was never out of the United States thereafter, although the records of the Canadian Pacific Railway...