United States v. Flynn

• Decision Date: 15 March 1926
• Parties: UNITED STATES ex rel. ARCARA v. FLYNN, Director of Immigration.
• Court: U.S. District Court — Western District of New York

11 F.2d 899 (1926)

UNITED STATES ex rel. ARCARA v. FLYNN, Director of Immigration.

District Court, W. D. New York.

February 6, 1926.

On Motion for Rehearing, March 15, 1926.

John Leo Sullivan, of Dunkirk, N. Y., for petitioner.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Percy R. Smith, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), opposed.

HAZEL, District Judge.

This is a second application for a writ of habeas corpus. On the hearing of the first it was decided that the deportation of the relator to Italy by the Secretary of Labor was proper, on the ground that in February, 1918, before his second entry into the United States, he had been convicted of an offense involving moral turpitude and sentenced to prison for a term exceeding one year. It appears that, after his sentence expired, he voluntarily returned to Italy, but re-entered the United States in November, 1922, and resides here now. An appeal to the Circuit Court of Appeals was taken by him from the decision on his first application for a writ, but subsequently the parties entered into a stipulation dismissing the appeal, and the relator was remanded to the custody of the Immigration Department for deportation.

On this application it is contended that, under section 19 of the Immigration Law of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, ß 4289ºjj), the relator, after his sentence, was not accorded the benefit of a recommendation, by the court imposing the sentence, that he be not deported. The relevant parts of the statute read as follows:

"Provided further, that the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the state, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this act."

Although no recommendation was made within the time limited, the court imposing the sentence has, since then, forwarded a letter to the Secretary of Labor, recommending that the relator "ought not to be deported on this conviction," and explaining that it had not come to his attention that the relator was an alien. He could not have been deported after his conviction and sentence, had he not left this country, for he had been domiciled here continuously more than five years; but upon his departure and subsequent return he subjected himself to the provisions of the Immigration Ac...