United States v. Karmuth

• Decision Date: 01 September 1932
• Citation: 1 F. Supp. 370
• Parties: UNITED STATES ex rel. VALENTI v. KARMUTH, Immigration Officer.
• Court: U.S. District Court — Northern District of New York

1 F. Supp. 370

UNITED STATES ex rel. VALENTI v. KARMUTH, Immigration Officer.

District Court, N. D. New York.

September 1, 1932.

Morris I. Lipsitz, of Buffalo, N. Y., for relator.

Oliver D. Burden, U. S. Atty., of Syracuse, N. Y., for respondent.

COOPER, District Judge.

This is a habeas corpus proceeding on behalf of the relator, Paul Valenti, held under warrant of deportation.

The relator was born in Italy December 15, 1908, and came to this country with his parents October 28, 1914, and has ever since resided with them at Buffalo, attending school in that city, at least until June 16, 1924. It is asserted by the respondent that Valenti left the country on June 16, 1924, and returned the same day to this country, and this is claimed to constitute a re-entry. The facts relating thereto appear later herein.

On May 8, 1925, in the county court of Eric county, the relator pleaded guilty to the crime of assault, second degree, committed on March 29, 1925, and on May 15, 1925, was sentenced for an indeterminate term to Elmira Reformatory.

Deportation proceedings were initiated in August, 1925, and his deportation ordered on the ground that the aforesaid crime of assault, second degree, to which he pleaded guilty on May 15, 1925 was committed within five years after the alleged re-entry, that such crime involved moral turpitude, and that the sentence was for more than a year.

He was not, however, deported, and on December 30, 1927, he was convicted of the crime of grand larceny, second degree, and sentenced to Auburn State Prison for five years. The deportation proceeding was reopened on July 24, 1928, at Auburn Prison, and the additional charge laid against him that he had subsequent to February 1, 1917, been twice convicted of crimes involving moral turpitude and twice sentenced to imprisonment for more than one year.

On August 20, 1928, a warrant of deportation was issued based on the above two convictions.

Upon his release from Auburn Prison, relator was subjected to the aforesaid order of deportation and sued out this writ of habeas corpus.

The statute controlling the case is section 19, chapter 29, of the Act of February 5th, 1917 (8 USCA § 155), which, so far as applicable, reads as follows: "Except as hereinafter provided, any alien who, after February 5, 1917, is 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, or who is sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry * * * shall * * * be taken into custody and deported."

The crime of grand larceny, second degree, admittedly involves moral turpitude, and, if there was a new entry in 1924, the decision must go against the relator.

The relator, Valenti, denies that he left the country and returned on June 16, 1924, within the intent of the law, or at any other time, and also denies that he has committed two crimes involving moral turpitude.

This alleged new entry in 1924 arises out of the following facts:

A day or two prior to June 16, 1924, while the relator was a pupil in the public schools of Buffalo, the teacher announced that on June 16, 1924, the graduating class, of which relator was a member, would have a picnic at Crystal Beach, Ontario, on the northern shore of Lake Erie, across the lake from Buffalo.

The teacher asked the pupils to bring a certain small sum of money to defray expenses of transportation, etc., and on the appointed day, the class left the school and under the direction of the teacher went by boat from Buffalo to the beach. The teacher made all the arrangements for transportation and arranged for the sports played and food consumed. The class, including the relator, returned to Buffalo toward the close of the day still under the direction of the teacher. The facts of this picnic at the beach are given in the testimony of the relator and are not disputed. The relator testified that he knew the beach was in Canada.

It is this school picnic which the respondent asserts is a departure from and re-entry into this country within the meaning of the law.

The respondent, in support of this contention, cites the cases of U. S. ex rel. Kowalenski v. Flynn (D. C.) 17 F.(2d) 524; U. S. ex rel. Ueberall v. Williams (D. C.) 187 F. 470; and U. S. ex rel. Medich v. Burmaster (C. C. A.) 24 F.(2d) 57.

The facts in the Kowalenski Case have some similarity to the case at bar. The alien went from Buffalo to Fort Erie Beach by boat on a picnic for a day, and, on the question of whether his return that same day was a re-entry, the court said: "Many adjudications have held, and I must hold, that the duration of absence in a foreign country, even though divided only by a span across Niagara river, has nothing to do with the case."

Further, he also states: "Hence it is immaterial whether an alien's departure from the United States was only temporary, for recreation, visiting, or business. Nor does it make any difference, as the decisions point out, that he had no intention to remain away, and came back on the same day by the same boat."

The court held that the alien should be remanded to the custody of the immigration authorities for deportation.

In the Ueberall Case, the headnote in this case states very well the text in the opinion: "Relator, an alien of the excluded classes, having been in the United States more than three years, shortly before his arrest as an alien not entitled to enter, while in Niagara Falls, passed from the American to the Canadian side to view the falls, and, after staying there an hour or more, came back to New York, and shortly thereafter was arrested. Held, that his return to the United States after going into Canada constituted a re-entry, after which he was subject to deportation."

In the Medich Case, supra, the alien, a taxicab driver, transported teachers to Canada and returned the same day. Such return was held to be a re-entry.

In the decisions on the subject of the departure and re-entry of an alien, there is a necessary implication that the acts of the alien were at all times voluntary and free from restraint of any kind, and that there was entire liberty on his part to leave or not to leave, to re-enter or not re-enter, as he pleased.

The relator here, at the time of his going to Canada on the picnic during his sixteenth year, was a pupil in the public schools of the state of New York. It is the law of the state that a pupil in public school must attend school every school day, except during illness or other circumstances warranting temporary absence. He must report at his school at the appointed time, do certain things at stated times or at the request of his instructor, and is generally under the direction and control of the teacher until the end of the school day.

A schoolboy of 16, in an American public school, told with the others of his class that the class would go across Lake Erie to a Canadian beach for a day's picnic, and who goes with the teacher and class and returns with them, is not possessed of freedom of action to decide whether or not he will go. He is not a free agent acting entirely of his own volition. He is under compulsion as if he were in the school room, and is not voluntarily departing from and re-entering the country within the meaning of the statute under the foregoing or any other authorities known to this court. On the contrary, he was under compulsion both when he left for and when he returned from such picnic.

This compulsion under which the relator may be presumed to have acted serves to distinguish his case from the cases of Kowalenski, Ueberall, and Medich supra, and like cases where the departure was purely voluntary. And this is so, although none of these cases expressly holds that the going to a foreign country must be of one's own volition. But such freedom of action is necessarily implied. Any other view would be unreasonable and untenable.

It would hardly be contended that, if one were kidnapped, or abducted and taken by force to a foreign country, and then allowed to return to the country, or if one were kidnapped, taken to a foreign country, escaped and returned to the United States, such return would be a new entry within the meaning of the law.

In connection with the views here expressed, see Ex parte T. Nagata (D. C.) 11 F.(2d) 178.

It is held, therefore, that there was no entry or re-entry on June 16, 1924, and that the date of the relator's entrance into this country was the time of his original entry on October 24, 1914.

It follows that the conviction of grand larceny is not sufficient to warrant deportation.

The writ must be sustained, therefore, unless the crime of assault in the second degree also involves moral turpitude.

It is strenuously contended on the part of the relator that the crime of assault, second degree, does not involve moral turpitude as a matter of law.

The relator supports his contention with the following cases: Ciambelli ex rel. Maranci v. Johnson (D. C.) 12 F.(2d) 465; U. S. ex rel. Griffo v. McCandless (D. C.) 28 F.(2d) 287.

The indictment outstanding against the relator here at the time of the plea of guilty of assault in the second degree was an indictment, not for assault, but for robbery in the first degree.

The indictment is as follows:

"Supreme Court, Erie County.

"The People of the State of New York vs. Santi Costa, Paul Valenti, Dominic Tresco.

"The grand jury of the county of Erie by this indictment accuse Santi Costa, Paul Valenti and Dominic Tresco and each of them of the crime of robbery in the first degree, committed as follows, to wit:

"That the said Santi Costa, Paul Valenti and Dominic Tresco, and each of them, each being then and there aided by the other actually present on the 29th day of March in the year of...