United States ex rel. Barilla v. Uhl
| Decision Date | 22 May 1939 |
| Citation | 27 F. Supp. 746 |
| Parties | UNITED STATES ex rel. BARILLA v. UHL, District Director of Immigration and Naturalization at Port of New York. |
| Court | U.S. District Court — Southern District of New York |
Milton J. Meltzer, of New York City, for relator.
John T. Cahill, U. S. Atty., of New York City (Clifford H. Rich, of New York City, of counsel), for respondent.
The relator has been ordered deported under the provisions of Section 19 of the Immigration Act of February 5, 1917, 8 U.S.C.A. § 155, in that he, an alien, has been sentenced subsequent to May 1, 1917 to imprisonment more than twice for a term of one year or more for the commission subsequent to entry, of a crime involving moral turpitude; to wit, assault second degree and assault second degree.
The relator had two hearings, one on November 17, 1936 and the other on November 26, 1936, both conducted at Auburn State Prison where the relator was incarcerated.
The testimony taken on said hearings showed that the relator was born in Italy; that he came to the United States when very young; that he had departed from the United States on several occasions; that he again entered the United States when he was thirteen years of age and again on April 16, 1917; that on this last entry, he was returning from a short visit to Curacoa where he had gone for a vacation.
That he last entered the United States when he was returning from overseas service in the United States Army where he had been serving during the World War.
That on June 13, 1930 he was convicted in the County Court of Kings County, New York, and pleaded guilty to the crime of assault in the second degree and sentenced to the New York State prison at Sing Sing for a term of not less than two and one-half years or more than five years.
That on the 13th day of November, 1935 in the County Court of Bronx County, relator was convicted of the crime of assault in the second degree and sentenced to a state prison for a term of five years.
If the relator is an alien, there can be no doubt that there is ground for deportation under Section 19 of the Immigration Act of 1917.
The relator claims, however, that he is a citizen and, therefore, that he is not subject to deportation, or at least under his claim of citizenship, he is entitled to a judicial inquiry upon the issue of his citizenship.
The relator's contention is that while he was serving in the United States Army overseas, he became a citizen pursuant to Title 8 U.S.C.A. § 390.
The references I find in the record prior to the order of deportation are as follows: On May 13, 1936 at Auburn Prison, when examined by an immigration officer, he made the following claim:
The relator then gave the details of his overseas service which he said was from April 13, 1917 to June 4, 1919. He further stated that he had no naturalization certificate.
Again, at the hearing on November 17, 1936, the relator stated in response to a question, as follows: ...
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