United States ex rel. De Rienzo v. Rodgers

• Decision Date: 12 April 1911
• Docket Number: 1,450.,14
• Citation: 185 F. 334
• Court: U.S. Court of Appeals — Third Circuit
• Parties: UNITED STATES ex rel. DE RIENZO v. RODGERS, U.S. Com'n of Immigration, et al.

185 F. 334

UNITED STATES ex rel. DE RIENZO v. RODGERS, U.S. Com'n of Immigration, et al.

Nos. 14, 1,450.

United States Court of Appeals, Third Circuit.

April 12, 1911

Joseph Levy, A. L. G. Hay, and Bernard F. Owens, for plaintiff in error.

J Whitaker Thompson, U.S. Atty., and Walter C. Douglass, Jr. Asst. U.S. Atty., for defendants in error.

Before GRAY and BUFFINGTON, Circuit Judges, and YOUNG, District Judge.

GRAY Circuit Judge.

This case arises on an appeal from a decree dismissing a writ of habeas corpus. On the hearing in the court below, it appeared that the relator, Pasquale De Rienzo, was a minor, 14 years of age, a native of Italy. He arrived at Philadelphia on the steamship Taormina, from Naples, on July 31, 1910. Upon arrival, he was examined by two medical officers of the United States Public Health and Hospital Marine Service, who certified that he had 'idiocy, which condition could have been determined by competent medical examination at the port of foreign embarkation. ' Thereafter, on the same day, July 31 1910, the board of special inquiry, constituted in accordance with the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898 (U.S. Comp. St. Supp. 1909, p. 447), made a decision, based upon the medical certificate, excluding the relator from admission into the United States.

It is conceded on this appeal that the decision of the board of special inquiry, based upon the certificate of the examining medical officer, was final, not admitting of appeal. A proceeding in the nature of an appeal, however, was taken to Washington, and a second medical examination was ordered and made, with the same result.

It also appeared that the relator had twice before sought to enter the United States and had been excluded as an idiot, once at the port of Boston in September, 1905, and again at the port of New York, in June, 1909.

It also appeared that the father of the relator, Domenico De Rienzo, was naturalized in Somerset county, Pa., April 12, 1909, and it is by reason of the naturalization of the parent, under the provisions of section 5 of the Act of March 2, 1907, c. 2534, 34 Stat. 1229 (U.S. Comp. St. Supp. 1909, p. 440), that the relator now claims the right to enter the country, on the ground that he is thereby invested with citizenship and not subject to the operation of the immigration laws.

The relator was denied admission into the United States, under authority of the act of February 20, 1907, entitled 'An act to regulate the immigration of aliens into the United States,' the material provisions of which are as follows:

'Sec. 2. That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feeble minded persons. * * * '

'Sec. 17. That the physical and mental examination of all arriving aliens shall be made by medical officers of the United States Public Health and Marine Hospital Service. * * * '

'Sec. 10. That the decision of the board of special inquiry, hereinafter provided for, based upon the certificate of the examining medical officer, shall be final as to the rejection of aliens affected with tuberculosis or with a loathsome or dangerous contagious disease, or with any mental or physical disability which would bring such aliens within any of the classes excluded from admission to the United States under section 2 of this act.'

The act of March 2, 1907, is entitled, 'An act in reference to the expatriation of citizens and their protection abroad. ' Section 5 of this act, under which the relator claims the right to enter the country, is as follows:

'Sec. 5. That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, that such naturalization or resumption takes place during the minority of such child; and provided further, that the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States.'

It is insisted by counsel for the relator, that the section just quoted from the act of March 2, 1907, gave an inchoate right of citizenship to the relator, by virtue of which he was exempt from classification as an alien under the provisions of the immigration act of February 20, 1907; that, though he was born abroad and had hitherto remained abroad, the naturalization of his father during his minority gave him this inchoate right, and he could not be prevented from entering the country, in order to begin a permanent residence in the United States, as a condition precedent to receiving the full citizenship conferred by the act. This contention merits, and must receive, careful consideration.

Prior to the act of March 2, 1907, the law on the subject of such citizenship was contained in section 2172 of the Revised Statutes (page 1334, U.S. Comp. St. 1901), as follows:

'The children of persons who have been duly naturalized under any law of the United States, * * * being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.'

Counsel for the United States has pointed out that, though this had been a law from a very early date, and had received judicial interpretation in other respects, its effect upon classes otherwise excluded by the immigration laws appears not to have come before any court until after 1900. In 1904, in United States ex rel. Abdoo v. Williams, Immigration Commissioner (C.C.) 132 F. 894, the question came before Judge Lacombe, in the Southern district of New York. Two minor children, natives of Syria, arrived at the port of New York, and were detained at Ellis Island as persons afflicted with trachoma. While they were at the Island, the father took out his final papers. In holding that the children were not thereby entitled to admission into the country, Judge Lacombe said:

'The naturalization of the father did not change the status of these children. They were born out of the limits and jurisdiction of the United States, their father at the time of their respective births not being a citizen thereof. Therefore, under Rev. St. U.S. Sec. 1993 (U.S. Comp. St. 1901, p. 1268), they were born aliens. They were aliens when they arrived here on July 31, 1904. The effect of their father's naturalization has been carefully restricted by Congress. * * * It has been repeatedly held that the mere being at Ellis Island in the custody of the immigration authorities is not a landing within the meaning of any provision of the Revised Statutes, and that no landing has been effected until the immigrant has been passed by the authorities at Ellis island. In re Palagano (C.C.) 38 F. 580; Nishimura Ekiu v. U.S., 142 U.S. 651, 12 Sup.Ct. 336, 35

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