United States v. Hughes

• Decision Date: 14 April 1939
• Docket Number: No. 6688.,6688.
• Parties: UNITED STATES ex rel. RAK v. HUGHES, District Director of Immigration and Naturalization.
• Court: U.S. Court of Appeals — Third Circuit

104 F.2d 14 (1939)

UNITED STATES ex rel. RAK v. HUGHES, District Director of Immigration and Naturalization.

No. 6688.

Circuit Court of Appeals, Third Circuit.

April 14, 1939.

Albert P. Morwitz and Abraham Greenberg, both of Camden, N. J., for appellant.

Thorn Lord, of Trenton, N. J., for appellee.

John J. Quinn, U. S. Atty., of Trenton, N. J., for the United States.

Before THOMPSON and BIGGS, Circuit Judges, and MARIS, District Judge.

BIGGS, Circuit Judge.

Frank (Francesco) Rak, an alien, was arrested upon a warrant issued by the Assistant to the Secretary of Labor, signed July 13, 1935, charging him with entry into the United States subsequent to the sixth day of March, 1927, in violation of Section 13 of the Immigration Act of 1924, Act of May 26, 1924, c. 190, Sec. 13, 43 Stat. 161, 8 U.S.C.A. § 213, in that at the time of his entry he was not in possession of an unexpired immigration visa.

Later an additional charge was placed against Rak by the Department of Labor, namely, that he had remained in the United States for a longer period than was permitted by the Immigration Act of 1924. Extensive hearings were had before an Inspector of Immigration and much testimony was presented. The Immigrant Inspector found that the charge that Rak was not in possession of an unexpired immigration visa at the time of his entry was not sustained, but did find that the charge subsequently added, viz., that Rak had remained in the United States for a longer time than permitted by law was sustained. The Board of Review reversed the finding of the Inspector and held that Rak should be deported because he was not in possession of an unexpired immigration visa at the time of entry. The Secretary of Labor thereupon ordered his deportation. Rak filed a petition for habeas corpus in the District Court of New Jersey, but the writ was discharged by order of the court below and Rak was remanded to the custody of the Secretary of Labor for deportation. The appeal at bar was taken from this order.

It should be pointed out that if the alien entered the United States as he claims in 1922, the provisions of the Immigration Act of 1917, Section 19, 8 U.S. C.A. § 155, would be applicable and therefore if the alien had remained in the United States for a period of five years, viz., from August 1922 to August 1927, he would not be subject to deportation. Upon the other hand if he entered the United States, as the Government contends, after the 1924 Immigration Act became effective, the effective date of that Act being July 1, 1924, he would be subject to deportation.

It appears from the record that the alien was born upon December 31, 1898, in Trieste, then a part of Austria, now a part of Italy. He testified that he entered the United States in August, 1922, illegally as a deserting seaman from the SS. Argentino at the Port of New York and that he has remained in this country ever since. The Government contends that the alien first entered the United States in 1924 and that he was at Turriaco, a suburb of Trieste, upon June 3, 1927, and that therefore he re-entered the United States after that date. No evidence was produced from the records of any port as to Rak's entry into the United States at any date.

Rak offered testimony tending to show his presence in the United States from August 1922 on and the nature of his employment in this country. Some of this testimony was credible; some was not. For example, the alien testified that his first employment was in the construction of the Broad Street Subway in Philadelphia in 1922 and the record discloses the fact that ground was broken for the construction of the Broad Street Subway in 1924. In our opinion it is unlikely that an alien would forget the nature of his first employment in a new country. Within the critical period of the summer of 1927, viz., June, July and August, however, the testimony offered by Rak as to his employment in Philadelphia is credible. J. T. Johansen, a partner in an enterprise known as the Atlantic Engineering Company, testified that to the best of his knowledge Rak was employed by the Atlantic Engineering Company in the spring of 1927 and that this employment continued through the summer of 1927. While Johansen's testimony seems to us to be entitled to much weight, it will appear upon examination that it is not such as would preclude the possibility of Rak having made a trip to Trieste in June 1927 and having returned to the United States immediately thereafter.

The case against Rak therefore turns upon certain items of testimony to which we have not yet adverted. First, Rak himself offered in evidence a certificate from the Mayor of Turriaco to the effect that he had emigrated from Turriaco in May 1924. Assuming this to be the actual date of Rak's emigration to the United States, none the less it cannot be presumed that he did not reach the United States before July 1st, 1924, the date upon which the Immigration Act of 1924 became effective. Section 31(c) of the Act of 1924, 43 Stat. 169, provides, "If any alien arrives in the United States before July 1, 1924, his right to admission shall be determined without regard to the provisions of this Act * * *". We are therefore of the opinion that the right of the Department of Labor to deport Rak must turn upon the proof afforded by a card of identity found upon his person at the time of his arrest, and the statements of the Mayor of Turriaco that this card was issued to Rak in person upon...