Siniscalchi v. Thomas

• Decision Date: 13 February 1912
• Docket Number: 2,263.
• Citation: 195 F. 701
• Parties: SINISCALCHI v. THOMAS, Immigration Inspector.
• Court: U.S. Court of Appeals — Sixth Circuit

195 F. 701

SINISCALCHI v. THOMAS, Immigration Inspector.

No. 2,263.

United States Court of Appeals, Sixth Circuit.

February 13, 1912

This is a proceeding in habeas corpus. The court below dismissed the petition, and appeal was taken. Appellant is an Italian, who as found by the Secretary of Commerce and Labor, landed in this country at some unknown port after February 4, 1909. It is charged in the warrant of arrest, dated May 13, 1911, that he is here in violation of the immigration laws (approved February 20, 1907, as amended March 26, 1910), in this: that he is a member of the excluded classes, and has been convicted of or admits having committed a 'felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States. ' In the warrant to deport, dated October 23, 1911, it appears that the acting Secretary of Commerce and Labor had become satisfied from evidence that Siniscalchi had been convicted of a 'felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States and that he is unlawfully within the United States, in that he had been found receiving, sharing in and deriving benefit from the earnings of a prostitute, and may be deported,' and the Secretary directed his return to Italy. In his answer appellee admits that by virtue of the warrant of arrest he holds the petitioner in custody, and, further, that under the warrant of deportation it is his duty and intent to take petitioner to New York to be deported. The record contains among other things the following from a court of Italy:

'Record of Proceedings. Judicial Records, Penal Certificate, Court of Avellino. To the name of Siniscalchi Augusto, son of Sebastiano and Trione Rosa, born November 10, 1871, at Quindici, prov. of Avellino. At the request of the Commanding Officer of the Royal Carabineers at Avellino, 3-12-911 N. 209-909 Dic. 2.00 for official use.

'It is certified that in these Judicial Records it appears:

'II. Court of Avellino, 7-10-89, 3 years for rape.

'III. Court of Avellino modified on Appeal, 12-23-89, 4 months detention for rape.

'VI. Assize Court of Avellino, 8-2-1910, 28 years and 3 months reclusion, a fine of lire 73 and 20, perpetual interdiction (loss of civil rights) for willful homicide, carrying concealed weapon and contravention. 'Avellino, 3-13-1911. The Clerk of the Court, (Sig.) A. Sels. The Public Prosecutor, (Sig.) Illegible.'

C. O. Rose and H. M. Rulison, for appellant.

S. T. McPherson, for appellee.

Before WARRINGTON and KNAPPEN, Circuit Judges, and KILLITS, District judge.

WARRINGTON Circuit Judge (after stating the facts as above).

Although the proceedings involved in this case were begun and conducted under the immigration acts of Congress for the purpose of deporting Siniscalchi, yet they were objected to, and this appeal is pressed, upon the theory that the proceedings were so far criminal in their character as to require them to be considered in large measure according to the rules of criminal procedure. Such proceedings are in no proper sense a trial and sentence for a crime or offense. United States v. Hung Chang, 134 F. 19, 25, 67 C.C.A. 93 (C.C.A. 6th Cir.)

. They result merely in the ascertainment of whether the conditions exist under which particular aliens may remain within the country (Fong Yue Ting v. United States, 149 U.S. 698, 729, 730, 13 Sup.Ct. 1016, 37 L.Ed. 905), or under which they may be excluded or deported. The authorities are summed up by Judge Dodge in Re Jem Yuen (D.C.) 188 F. 350, 353:

'It is well settled that officers of the government, to whom the determination of questions of this kind is entrusted under statutes like those governing these proceedings, are not bound by the rules of criminal procedure, nor by rules of evidence applied in the courts. It is not enough for a review of their decision on habeas corpus that there was no sworn testimony, or no record of the testimony or of the decision. No formal complaint or pleadings are required. The alien's opportunity to be heard need not be upon any regular set occasion, nor according to the forms of judicial procedure. It may be such as will secure the prompt, vigorous action contemplated by Congress and appropriate to the nature of the case.'

It follows that despite the indefinite character of the warrant of arrest, especially in view of the certainty of the evidence and also of the first charge contained in the warrant of deportation, it was open to the Secretary of Commerce and Labor to consider the penal certificate (set out in the statement). True, it is insisted by counsel that the crime of rape appearing in that certificate cannot be made the basis of deportation. It is contended, in the first place, that, since the sentence was reduced from three years to four months, it amounts to nothing more than one of assault and battery; and, in the next place, that it is not shown that petitioner ever left this country after his first entrance, and he cannot therefore be charged with re-entry within three years of the date of his arrest. Counsel, however, fail to support their contention respecting modification of the sentence by any showing of the law of Italy on that subject; their reliance being placed upon the law of the state of Ohio. The record in terms states that the reduced period of detention was 'for rape,' and it cannot be that this does not signify moral turpitude within the meaning alike of the charge and the act of Congress.

Next, is the three years' period applicable only to an alien's first entry into this country? We think not. We have just passed on this question in Frick, U.S. Imm. Inspector, v. Lewis, 195 F. 693, and need only refer to that decision. We have examined the record with a view of testing a claim made that there is nothing to show that petitioner ever returned to Italy after his entry some 12 years ago. It is, in substance, stated in the sixth paragraph of the penal certificate that a man bearing petitioner's name was convicted in the 'Assize Court of Avellino, 8-2-910,' of willful homicide and sentenced to 28 years and 3 months reclusion and loss of civil rights. It appears by the marriage certificate that Augusto Siniscalchi is the son of Sebastiano Siniscalchi and Rosa Trione. This agrees with the statement in the penal certificate; and petitioner's brother-in-law, Angelo Torti, who appeared as a witness, was shown a picture which he recognized as that of Augusto Siniscalchi. In a letter found in the record, dated at New York, September 5, 1911, from the Royal Consul General, it is stated that the sentence pronounced August 2, 1910, by the Court of Assize of Avellino was inflicted on Siniscalchi for homicide committed in Quindici on the 14th of February, 1909.

While it is true that there is evidence showing that petitioner was in this country at the date of the conviction in Italy, yet this does not show that he was not in Italy at the date of the homicide; and it is in vain to contend, in a case like this, that the portion of the record just pointed out in no wise tends to sustain the finding of the Secretary that petitioner landed in this country at some unknown port after February 4, 1909.

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