United States v. Day

• Citation: 22 F.2d 914
• Decision Date: 05 December 1927
• Docket Number: No. 122.,122.
• Parties: UNITED STATES ex rel. PAOLANTONIO v. DAY, as Commissioner of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

22 F.2d 914 (1927)

UNITED STATES ex rel. PAOLANTONIO v. DAY, as Commissioner of Immigration.

No. 122.

Circuit Court of Appeals, Second Circuit.

December 5, 1927.

Harry H. Hoffnagle, of New York City (McCready Sykes, of New York City, of counsel), for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Alvin McKinley Sylvester, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

The question raised by this appeal is whether the immigration authorities are empowered to deport an alien woman, who was of constitutional psychopathic inferiority at the time of her entry, and whose husband became a naturalized citizen of the United States after her deportation was ordered.

The facts which present this question are the following: Husband and wife were married in Italy, both being natives and citizens of that country. Thereafter, on August 28, 1920, they arrived at the port of New York and were admitted for permanent residence. They have continued to reside here ever since. In April, 1925, the wife was placed by her husband in the Brooklyn State Hospital, and on July 1, 1925, a certificate was issued by the New York State Hospital Commission to the effect that she had become an insane public charge, due to causes existing prior to her landing in this country. In consequence, a warrant for her arrest, dated July 18, 1925, was issued by the immigration authorities, charging that she was an alien who had entered the United States in violation of the Immigration Act of February 5, 1917 (8 USCA § 101 et seq.), in that she was a person of constitutional psychopathic inferiority at the time of her entry, and in that she has become a public charge in the Brooklyn State Hospital within five years after her entry into the United States from causes not affirmatively shown to have arisen subsequent thereto. The warrant also charged that she was a person likely to become a public charge at the time of her entry, but this ground for deportation is no longer pressed.

After hearings, begun August 7, 1925, before an immigration inspector at Ellis Island, a decision was rendered sustaining the charges, and thereafter on October 21, 1925, the Secretary of Labor ordered her deportation. For adequate reasons, not necessary to specify, execution of the order was delayed. On September 14, 1926, the husband, Nicolo Paolantonio, was admitted to citizenship in the Eastern district of New York. Thereupon he sought to reopen the hearings in his wife's case, contending that the immigration authorities were no longer vested with power to deport her. Failing in his request to have the case reopened, he sued out on her behalf the writ of habeas corpus now before us on appeal. An additional fact, which may evoke sympathy, but cannot affect the legal question, is that three children have been born to the husband and wife during their residence in this country. Since the wife's commitment to the hospital, the children have been in the care of the Department of Public Charities of the City of New York, the husband paying $10 per week for their support.

When the order of deportation was issued, the relatrix was an alien and her husband was an alien. If the order had been immediately executed, the validity of her deportation would have been beyond question. Section 1 of the Immigration Act of 1917 (39 Stat. 874 8 USCA § 173) defines "alien" to include "any person not a native-born or naturalized citizen of the United States"; section 3 (8 USCA § 136) places among the classes of aliens to be excluded from admission into the United States "persons of constitutional psychopathic inferiority"; and section 19 (8 USCA § 155) provides that at any time within five years after entry any alien who at the time of entry was a member of one of the classes excluded by law, or any alien who within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing, may be taken into custody and deported. There was evidence ample to justify the action of the immigration authorities, and under such circumstances, the courts cannot review its weight. United States v. Commissioner (C. C. A. 2) 15 F.(2d) 555.

But it is urged that after the husband's naturalization the act of 1917 ceased to be applicable to the relatrix. The argument is that "alien" in the act of 1917 must always mean what it meant when the act was passed; that when the act was passed the wife of an American citizen was not deportable, as was held in United States v. Tod (C. C. A. 2), 285 F. 523, 26 A. L. R. 1316; and, therefore, that such a wife was not an "alien" within the meaning of the act. But the reason that the wife of a naturalized citizen was not deportable was because the husband's citizenship caused her to cease to be an...