United States v. Butterfield, 12347.

• Decision Date: 09 June 1955
• Docket Number: No. 12347.,12347.
• Citation: 223 F.2d 804
• Parties: UNITED STATES ex rel. Sebastian VERMIGLIO, Appellant, v. James W. BUTTERFIELD, District Director, Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

223 F.2d 804 (1955)

UNITED STATES ex rel. Sebastian VERMIGLIO, Appellant, v. James W. BUTTERFIELD, District Director, Immigration and Naturalization Service, Appellee.

No. 12347.

United States Court of Appeals Sixth Circuit.

June 9, 1955.

Henry P. Onrich, James G. Mackey, Detroit, Mich., for appellant.

Dwight K. Hamborsky, Asst. U. S. Atty., Detroit, Mich. (Fred W. Kaess, U. S. Atty., Detroit, Mich., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

An attorney, Henry P. Onrich, on behalf of his client Sebastian Vermiglio, filed in the United States District Court for the Eastern District of Michigan a petition for writ of habeas corpus in which he averred that Vermiglio was imprisoned by James W. Butterfield, District Director of Immigration and Naturalization at Detroit, Michigan, under a warrant of deportation. The petition further charged Vermiglio's detention to be unlawful because the hearing accorded him, resulting in his being ordered deported, had been unfair for the following enumerated reasons: (1) that the hearing was held in Chicago, which is located in a different judicial district than that in which Detroit, the home city of Vermiglio, is situated; (2) that in consequence of this, Vermiglio was unable to present witnesses who would have "counteracted" the evidence introduced at the hearing; (3) that, because of "the distance involved and the resulting expenses," Vermiglio was unable properly to defend himself at the hearing in Chicago; (4) that the hearing was held under the McCarran Act, averred to be unconstitutional; and (5) that the immigration authorities were acting in an arbitrary and capricious manner in ordering Vermiglio deported, although they knew that he had pending applications for pardon with the Pardon Attorney of the Department of Justice of the United States and with the office of the Governor of Michigan and that the pardons, if granted, would nullify the outstanding deportation order.

Pursuant to the prayer of the petition, the habeas corpus writ was issued. As ordered, the respondent District Director of Immigration brought Vermiglio into the United States District Court at Detroit on July 27, 1954, at which time three attorneys appeared for the relator. The district director was represented by the United States Attorney. An extended colloquy ensued between the contending attorneys and the court concerning the proper procedure and the issues presented. Further hearing of the cause was set for August 4, 1954, and an adjournment was taken until that date.

Through the United States Attorney, the respondent district director filed, on July 30, 1954, a comprehensive answer and return to the petition for writ of habeas corpus. Attorney Onrich, for the relator, filed on August 3, 1954, a traverse to respondent's answer wherein it was prayed that writ of habeas corpus be granted and that an order be issued rescinding and suspending the deportation of Vermiglio previously promulgated by the Immigration and Naturalization Service.

On August 4, 1954, the hearing of the cause was renewed in open court, with Vermiglio present. He was represented by the same three attorneys, and an Assistant United States Attorney appeared as attorney for the District Director of Immigration. Further elaborate colloquy between court and counsel transpired, following which Vermiglio took the stand as a witness in his own behalf. He was examined by his attorney and cross-examined by the Assistant United States Attorney. The government attorney introduced in evidence a complete record of the deportation hearings and all administrative proceedings in relation to Vermiglio which had resulted in the order for his deportation. The material portions of this record had been made available to attorneys for Vermiglio prior to the hearings in the United States District Court.

The relevant facts revealed by the record will be reviewed, necessarily at some length, to present the full picture. Vermiglio was arrested in Chicago on December 10, 1953, under a warrant issued by the United States Immigration and Naturalization Service in that city. The warrant charged that he is an alien in the United States in violation of section 241(a)(11) of the Immigration and Nationality Act, in that he has been convicted of violating laws relating to illicit traffic in narcotic drugs, 8 U.S.C.A. § 1251(a) (11) and also that he is in this country in violation of section 241(a) (4) of the same Act, in that he has been convicted of crimes involving moral turpitude, 8 U.S.C.A. § 1251(a) (4). A hearing on these charges scheduled at Chicago for December 22, 1953, was, at the request of an attorney for Vermiglio, adjourned to January 4, 1954, at which time the hearing was had before a special inquiry officer. The government called appellant as an adverse witness. He swore that his parents were dead; that he had received information about his birth from his mother and other relatives; and that he was born in Detroit, Michigan, on May 13, 1912.

He admitted and the records proved that he had been convicted of the following listed five crimes with resultant sentences: 1. Breaking and entering a store at nighttime. (On guilty plea, sentenced by Recorder's Court of Detroit on December 27, 1934, to 7 years and 6 months' imprisonment.) 2. Conspiracy to violate Harrison Anti-Narcotic Act, as amended, 26 U.S.C.A. §§ 2550 et seq., 3220 et seq. (On guilty plea, sentenced on November 5, 1932, by United States District Court at Detroit to thirteen months' imprisonment.) 3. Automobile theft. (On guilty plea, sentenced on October 24, 1929, by state district court at Omaha, Nebraska, to one-to-three years' imprisonment.) 4. Unlawfully transferring counterfeited sugar ration documents. (On guilty plea, sentenced on March 18, 1947, to imprisonment for one year and fined $1,000.) 5. Unlawfully possessing counterfeited obligations of the United States. (On guilty plea, sentenced on March 18, 1947, to two years' imprisonment, to run consecutively to the one-year sentence for sugar-ration violation imposed on the same date.)

The government established by an alien registration form and application for certificate of identification of Vermiglio's mother, Maria Marino, that she had arrived in the United States on January 20, 1920, aboard the Steamship Regina Italia. The manifest record introduced in evidence showed that she and her children, Sebastiano (age 6), Pietro, Vincenza, and Lauria, had arrived on the named ship and had been admitted into the United States on that date; and that she and her children had never been in the United States before. It is obvious that "Sebastiano" was the Italian name for appellant, "Sebastian" Vermiglio.

The government introduced a certificate on a Department of Justice form containing information taken from entries in the original manifest relating to Sebastiano Marino, showing that he entered the United States on January 20, 1920, on the Steamship Regina D'Italia, at the age of 6 years; that he was a citizen of Italy, born in "Valestrata" in that country; and that he was accompanied by his mother, Maria, and his brothers and sister mentioned above. Public school records of Sebastian Vermiglio at Detroit, Michigan, showed that he and his parents were born either in Italy or in Sicily.

A certificate of arrival filed by appellant's brother, Andrew Vermiglio, was introduced in evidence and showed that Andrew came to the United States on January 20, 1920, from "Balastrate," Italy, and that he had been accompanied by his mother and his brothers, Sebastiano, Pietro, and Vincenzo, and his sister, Graza. A similar application by appellant's brother, Pietro, or Peter, introduced in evidence, corroborated some of the foregoing facts.

An important document introduced by the government was a certified copy of a birth certificate, written in Italian and authenticated by a United States Consul. A certified translation of this document disclosed that Sebastiano Vermiglio was born on June 8, 1913, at "Balestrate," in the Province of Palermo, and that he was the son of Vincenzo and Graza Marino. The Chief Probation Officer of Recorder's Court in Detroit testified that a probation report showed that appellant had stated that he was born on May 13, 1911, in Italy; that his father was dead, but that his mother, Grace, was living in Detroit; and that his brothers were Andrew, Peter and James, and his sister was named "Grace." The parole officer and record clerk of the Men's Reformatory at Lincoln, Nebraska, brought into evidence a record of appellant's conviction under the name of "Samuel Rocco" in Nebraska in 1930. A document signed by appellant while in that reformatory stated that he was born on January 25, 1912, at "Balastrate" in Sicily.

Appellant testified that he was baptized in Chicago, Illinois, and that the baptism could have taken place at St. Philip Benize Church in that city. Father Giambastiani, pastor of St. Philip's since 1916, was introduced as a witness and testified that he had had custody of the baptismal register continuously, except for about a month and a half in the latter part of 1952 during which period the book had disappeared. It was later mysteriously returned by being left on the doorstep of the rectory. He brought the register with him. It covered the period from August 8, 1911, to May 18, 1913. The priest asserted that an attorney for appellant had asked him to change the church baptismal record concerning Sebastian Vermiglio by naming the City of Detroit as his birthplace. In response, the priest advised the attorney to furnish affidavits of two persons who knew that appellant had been born in Detroit. He stated that, after receiving such affidavits from the lawyer at a later date, he directed that the word "Detroit" be added to the baptismal record concerning Vermiglio. He testified further, that the name of Sebastiano...