United States v. Anastasio, Civ. No. 1189-52.

• Decision Date: 14 April 1954
• Docket Number: Civ. No. 1189-52.
• Citation: 120 F. Supp. 435
• Parties: UNITED STATES v. ANASTASIO.
• Court: U.S. District Court — District of New Jersey

120 F. Supp. 435

UNITED STATES v. ANASTASIO.

Civ. No. 1189-52.

United States District Court D. New Jersey.

April 14, 1954.

COPYRIGHT MATERIAL OMITTED

William F. Tompkins, U. S. Atty., Newark, N. J., Edward V. Ryan, Asst. U. S. Atty., Jersey City, N. J., Louis Steinberg, N. Y. Dist., Immigration & Naturalization Serv., New York City, for plaintiff.

Samuel Paige, New York City, for defendant.

SMITH, District Judge.

This is an action to cancel and set aside a certificate of naturalization on the grounds that the same was fraudulently and illegally procured. The jurisdiction of the Court is derived from Section 338(a) of the Nationality Act of 1940, 54 Stat. 1158, 8 U.S.C. § 738 (a).^* The statutory jurisdiction of the Court is not challenged.

Facts

I. The defendant, formerly a national and subject of the Kingdom of Italy, had been employed as an "aspiring seaman" on the S.S. Sardegna, a vessel of foreign registry, which arrived at the port of New York on September 12, 1917; the vessel had sailed from the port of Genoa, Italy, on August 23 of the same year. The defendant deserted his ship and, in violation of Section 32 of the Act of 1917,^a landed in the United States; pursuant to Section 36 of the said Act, the master of the vessel filed a "Report of Desertion" with the Immigration Service. Thereafter the defendant remained in this country, but his stay here was unlawful under the express provisions of Section 34 of the said Act.

II. The defendant, on April 4, 1931, filed with the Immigration Service a verified "Application for Registry" under the Act of March 2, 1929.^c The applicant stated therein, "I have never (either in the United States or any other country) been arrested, summoned into court as a defendant, convicted, fined, imprisoned, or placed on probation, * * * for an act involving a felony, misdemeanor, or breach of any public ordinance." The defendant appeared before an Immigrant Inspector on May 5, 1931, and was examined under oath. He was asked "Have you ever been arrested or subject to criminal or civil prosecution?", and in response to the question he answered, "No." The hearing on the application was closed after a field investigation as to the applicant's place of residence; there was no other investigation made.

III. The statements made by the defendant both in his application and on his oral examination were knowingly false. The defendant had been previously arrested on five occasions: thrice on a charge of homicide, once on a charge of felonious assault, and once on a charge of "unlawful possession of a revolver"; he was convicted on the last charge and sentenced to a term of imprisonment. The record before the Court discloses further that the defendant was tried and convicted on an indictment which charged him with "murder in the first degree"; however, the judgment was reversed and thereafter the indictment was dismissed on the motion of the District Attorney. The defendant wilfully and deliberately concealed his criminal record and thereby perpetrated a fraud upon the Immigrant Inspector and upon the Commissioner General of Immigration.

IV. The Immigrant Inspector, having determined that the defendant was "a person of good moral character," recommended that a Certificate of Registry be issued. There can be no doubt that the said determination and the recommendation based thereon were induced by the false testimony of the defendant; in fact, there was no other testimony before the Immigrant Inspector except that of two witnesses who testified generally that the defendant was a person of good moral character. Pursuant to the regulations then applicable, the "record of investigation" was transmitted to the Commissioner General of Immigration, who ordered that a record of registry be made. A formal "Record of Registry" was approved by the Commissioner General of Immigration on June 16, 1931. It clearly appears from the evidence, however, that the Record of Registry was induced by the fraudulent conduct of the defendant. The certificate of registry, having been fraudulently procured, was therefore void for all purposes.

V. The defendant filed a formal declaration of intention in the United States District Court, Eastern District of New York, on October 30, 1931, under the Nationality Act of 1906, as amended by the Act of March 2, 1929, 45 Stat. 1512. There was annexed to the declaration of intention a Certificate of Arrival, which had its origin in the fraudulent record of registry, supra, theretofore established by the defendant. The defendant filed his petition for naturalization in the said court on December 27, 1933. It is noteworthy that in his preliminary petition he stated that he had been "convicted of misdemeanor in 1923," but he disclosed no other arrests except for traffic violations. This petition for naturalization was dismissed on February 28, 1935 on the written consent of the defendant after he had learned of the contemplated opposition by the District Director of Immigration and Naturalization.

VI. The defendant enlisted in the army of the United States and was inducted at Utica, New York, on July 30, 1942. Prior to June 29, 1943, when he was naturalized, the defendant was stationed at Indiantown Gap Military Reservation, Lebanon County, Pennsylvania. He was honorably discharged from the army of the United States on November 12, 1944.

VII. The defendant on March 18, 1943 filed a preliminary "Petition for Naturalization" with the Immigration and Naturalization Service. This petition was processed in the usual manner, and on April 28, 1943, a "Certificate of Arrival" was issued. Thereafter on June 29, 1943, the defendant filed a Petition for Naturalization in the Court of Common Pleas of the County of Lebanon, Pennsylvania, under the Nationality Act of 1940 as amended.^d 56 Stat. 182, 50 U.S.C.A.Appendix, § 640, 8 U.S.C. 1942 Supp. § 1001. Pursuant to the provisions of the Act, and the regulations promulgated thereunder, the Certificate of Arrival was annexed to the Petition for Naturalization. 8 U.S.C.A. § 732 (c);^† 8 C.F.R., Cum.Supp. 363.3, page 2793. The petition for naturalization was granted on this record, supported by the defendant's service record, and a certificate of naturalization was issued after formal hearing before the Court.

VIII. The Certificate of Arrival had its origin in the false record of registry, supra, theretofore made by the defendant, and therefore its use in the naturalization proceedings was a fraud upon the Court. The fraud tainted every step of the naturalization proceedings. The use of the Certificate of Arrival in the naturalization proceedings violated the penal provisions of the Nationality Act of 1940, 8 U.S.C.A. § 746(a) 16,^** and was per se illegal.

Discussion

The defendant, an alien seaman within the meaning of the Immigration Act of 1917,^a "landed" in the port of New York after he had deserted the vessel on which he was employed. He "landed" in violation of the provisions of the Act, and therefore his subsequent presence in the United States was unlawful under the express provisions of Section 34 thereof. United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; United States ex rel. Georgas v. Day, 2 Cir., 43 F.2d 917, 919; Domenici v. Johnson, 1 Cir., 10 F.2d 433, 436; see also the other cases hereinafter cited. The defendant, if not within a class excluded by the statute, may have been admissible as an immigrant but only upon compliance with the statutory requirements, to wit, payment of the head tax imposed by Section 2 thereof and submission to inspection required by Section 15 thereof.^‡ Ibid. When he "landed" in violation of the Act he evaded the statutory requirements prerequisite to "lawful admission."

The express provisions of the Act precluded his deportation upon the expiration of the three year period of limitation therein prescribed, but the mere lapse of time did not convert his illegal entry into a lawful admission or his unlawful stay into a legal residence. United States ex rel. Stapf v. Corsi, United States ex rel. Georgas v. Day, Domenici v. Johnson, all supra. The defendant, however, was not without a remedy; if qualified for admission he could have legalized his entry and, incidentally, his residence, under the express provisions of Section 34 of the Immigration Act of 1917.^a The defendant failed to adjust his status, and therefore his presence in the United States continued to be unlawful. Ibid.

The defendant contends that he entered the United States lawfully as an alien seaman, but this contention is not supported by the evidence. However, even if we assume that the defendant was granted leave to "land," he acquired nothing more than a revocable privilege to remain here temporarily. The grant of "shore leave," under applicable regulations, was not "lawful admission," within the meaning of the Act. "Admission * * * is an act of the authorities, accepting the alien into the body of our inhabitants, not indeed as a citizen, but as a possible resident, whose stay may be permanent unless something unforeseen happens. A seaman who breaks his leave cannot therefore be said to have been `admitted'". United States ex rel. Georgas v. Day, supra, 43 F.2d 919. The contention, if supported by the evidence, would, therefore, not avail the defendant.

Prior to the enactment of March 2, 1929,^c "An Act To supplement the naturalization laws," the status of the defendant, like that of others similarly situated, was anomalous; he was no longer subject to deportation after the expiration of the statutory period prescribed by the Immigration Act of 1917,^a but he could not acquire "legal residence" for the purpose of naturalization until "lawfully admitted." See: Werblow v. United States, 2 Cir., 134 F.2d 791, 792; Subhi Mustafa Sadi v. United States, 2 Cir., 48 F.2d 1040; United States v. Kreticos, 59 App.D.C. 305, 40 F.2d 1020, 1021; In re Wieg, D.C., 30 F.2d 418; In re Simmiolkjier, D.C., 71...