United States v. Husband, 241.
| Citation | 6 F.2d 957 |
| Decision Date | 06 April 1925 |
| Docket Number | No. 241.,241. |
| Parties | UNITED STATES ex rel. SCIMECA v. HUSBAND, Commissioner, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
William Hayward, U. S. Atty., of New York City (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for appellant.
Michael Stein, of New York City, for appellee.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
The lower court was entitled and required to pass upon the legality of what the Executive Department had done, and that was also the limit of its duty. It was error to hold what was a new hearing on new evidence as to certain of the facts. We passed on this point in Bieloszyka's Case, 3 F. (2d) 551 (opinion filed November 3, 1924). We do not, therefore, consider the affidavits filed in the District Court.
Undoubtedly the Department of Labor held that Scimeca was an alien; but it did not hold that there was not a child baptized as Vincenzo Scimeca and born in New York City in May, 1900. We have no doubt such child was born, as we regard the baptismal certificate as most persuasive evidence. This point was sufficiently considered in the Palermo Case, supra. The department, however, did not believe that the child born in New York was the man, who, 24 years later, demanded to enter the United States, and this matter of identity is a wholly different question from that of birth.
No one identified the relator, and the only evidence of a documentary nature produced or apparently producible was his passport. On its face that document was either a total fraud, or was in a sense being used fraudulently. It was a year old; it was never intended for a journey to the United States; the visa at Palermo was incomplete; and the relator gave no explanation at all as to why it was so old, and how its patent errors had arisen.
This case did not and does not turn upon the evidential value of the baptismal certificate. Let full force be given to it, and the question remains whether the man who knocked at the door of the country and demanded admission was or was not the man born in that country some 25 years ago. That was a question of fact, and the only evidence upon it was the oath of the relator and the circumstances surrounding his arrival in this country.
The case was plainly within the jurisdiction of the board of special inquiry (United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040), and the cases are very numerous wherein this court has emphasized the finality of a finding of fact made by such a board acting within its jurisdiction. One of the latest is that of Soo Hoo Hong, 290 F. 689, which is no more emphatic than that of Tulsidas v. Insular Collector, 262 U. S. 258, 43 S. Ct. 586, 67 L. Ed. 969. In other words, in view of the circumstances of Scimeca's coming, the board was not bound to believe his statements, and that refusal, based upon...
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