United States v. Curran

• Citation: 12 F.2d 394
• Decision Date: 26 March 1926
• Docket Number: No. 330.,330.
• Parties: UNITED STATES ex rel. CICCERELLI (or Ciccarelli) v. CURRAN, Com'r of Immigration.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

12 F.2d 394 (1926)

UNITED STATES ex rel. CICCERELLI (or Ciccarelli) v. CURRAN, Com'r of Immigration.

No. 330.

Circuit Court of Appeals, Second Circuit.

March 26, 1926.

John J. McGinniss, of Brooklyn, N. Y., for appellant.

Emory R. Buckner, U. S. Atty., of New York City (Nathan R. Margold, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

This is an appeal from an order dismissing a writ of habeas corpus sued out by the appellant to test the validity of a warrant of deportation which ordered his return to Italy, the country whence he came to the United States.

The appellant is a native and subject of Italy, having been born at Naples on September 25, 1896. He came to the United States in 1913, and resided here in that year and in 1914. In the year last named he returned to Italy, to serve in the Italian army in the World War. He was discharged from the army of Italy on December 19, 1919, and returned to the United States, as a reservist, on May 20, 1920, within two years after Armistice Day. He claims to have regarded the United States as his permanent home, that his domicile was here, and that during his absence he always had the intention of returning to the United States.

It appears that on May 24, 1924, he was accused and convicted of a criminal assault with a gun in the County Court of Bronx County, city and state of New York, and was sentenced to imprisonment at Sing Sing for a term of from two to four years. Previous to this, and in 1922, he served a six months' term in the workhouse, to which he was sentenced for disorderly conduct by the Magistrate's Court in Coney Island.

The Secretary of Labor is seeking to deport him under the authority conferred upon him by section 19 of the Immigration Act of February 5, 1917. That section provides:

"That * * * any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported. * * *" Comp. St. 1918, Comp. St. Ann. Supp. 1919, ß 4289ºjj.

It seems to be admitted that the crime of assault in the second degree is one involving moral turpitude. But it is claimed that the crime for the commission of which it is now sought to deport him affords no ground for his deportation, inasmuch as it was not committed within five years of his original entry into the United States in 1913. The government insists that, inasmuch as the crime was committed within five years of his last entry into the United States, the statute authorizes his deportation. In this last view of the statute we concur. There is nothing in the act which warrants its limitation to the alien's first entry. The statute applies to all aliens entering the United States after its passage, and who commit a crime involving moral turpitude within five years of their entry. At the time of Ciccerelli's first entry in 1913 and his departure in 1914 there was no such statute in force, and the only entry he made into the United States, after the enactment of the statute, was that made on May 12, 1920, and the crime was committed by him within five years after such entry. We think this was all-sufficient.

The authority of Congress over the admission of aliens to the United States is plenary. It may exclude aliens altogether, or may prescribe the terms and conditions upon which they may come into or remain in this country. Chinese Exclusion Case, 9 S. Ct. 623, 130 U. S. 581, 603, 32 L. Ed. 1068; Nishimura Ekiu v. United States, 12 S. Ct. 336, 142 U. S. 651, 659, 35 L. Ed. 1146; Fong Yue Ting v. United States, 13 S. Ct. 1016, 149 U. S. 698, 713, 37 L. Ed. 905; Lem Moon Sing v. United States, 15 S. Ct. 967, 158 U. S. 538, 547, 39 L. Ed. 1082; Lapina v. Williams, 34 S. Ct. 196, 232 U. S. 78, 88, 58 L. Ed. 515; Bugajewitz v. Adams, 33 S. Ct. 607, 228 U. S. 585, 57 L. Ed. 978; Lewis v. Frick, 34 S. Ct. 488, 233 U. S. 291, 58 L. Ed. 967; Ng Fung Ho v. White, 42 S. Ct. 492, 259 U. S. 276, 280, 66 L. Ed. 938.

In the Immigration Acts Congress has sometimes used the term "alien immigrants," and sometimes simply that of "aliens," intending by the former term aliens not previously resident in this country who had temporarily departed with the intention of returning. See Lapina v. Williams, 232 U. S. 78, 86,¹ and cases there cited. But it will be observed that in the legislation now under consideration the term used is "aliens" and not "alien immigrants." We have no question but that the intention of Congress was to make the provision of section 19 of the Act of February 5, 1917, applicable to all aliens, including alien immigrants. Neither do we doubt that if an alien, who entered this country and remained here for a time prior to the enactment of this statute, then left the United States and after an absence of a considerable period again entered it, and thereafter committed a crime involving moral turpitude within five years of his second entry, he may be deported in accordance with the provisions of the statute, although more than five...