United States v. Neelly, 10830.

• Citation: 207 F.2d 281
• Decision Date: 22 October 1953
• Docket Number: No. 10830.,10830.
• Parties: UNITED STATES ex rel. RONGETTI v. NEELLY.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

207 F.2d 281 (1953)

UNITED STATES ex rel. RONGETTI v. NEELLY.

No. 10830.

United States Court of Appeals Seventh Circuit.

September 29, 1953.

Rehearing Denied October 22, 1953.

Edward A. Biggs, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anthony Scariano, Asst. U. S. Attys., John M. McWhorter, District Counsel, Immigration and Naturalization Service, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.

DUFFY, Circuit Judge.

This is an appeal from an order of the district court denying a petition for a writ of habeas corpus, quashing the writ and remanding relator to the custody of the respondent, who is the district director of Immigration and Naturalization at Chicago. Hereinafter relator will be referred to as plaintiff and the respondent as defendant.

Plaintiff came to this country from Italy in February, 1896. The Board of Immigration Appeals found that plaintiff is a native and citizen of Italy, that he last entered the United States November 2, 1904, and that he is subject to deportation under the Acts of February 5, 1917, 39 Stat. 874-898, and of February 18, 1931, 46 Stat. 1171, 54 Stat. 673,¹ in that after February 18, 1931, he was convicted and sentenced on October 2, 1931, for the violation of the Revenue Act of 1918, 40 Stat. 1057, relating to the bartering, exchanging and giving away narcotics. On June 23, 1949, a warrant for deportation was issued based upon plaintiff's conviction in October, 1931. On February 14, 1950, deportation proceedings were stayed pending the outcome of a petition by plaintiff to the President of the United States for executive clemency. On July 28, 1950, the United States Pardon Attorney notified defendant that the Department of Justice had decided not to submit his application for clemency to the President, and that no further action on the application was contemplated. On May 15, 1951, defendant received from the Italian Government a travel document authorizing plaintiff's return to Italy. Shortly thereafter plaintiff was taken into custody. On May 15, 1951, plaintiff filed a petition for a writ of habeas corpus. The writ issued and defendant filed a return thereto, to which was attached a certified transcript of the record in the deportation proceedings. The return was not traversed.

After a hearing the district court found that plaintiff had been given a fair hearing before the Immigration and Naturalization Service, that there had not been an erroneous application of the law, and that plaintiff had been accorded due process. The writ of habeas corpus was quashed and plaintiff was remanded to the custody of the defendant. Plaintiff appealed to this court on February 20, 1952.

During the pendency of the proceedings in the district court plaintiff applied a second time to the President for executive clemency. On May 5, 1952, the Commissioner of Immigration notified defendant that deportation proceedings had again been stayed, pending the outcome of the proceedings for a presidential pardon, and also stating that plaintiff's attorney had agreed to dismiss the pending appeal to this court. However, said appeal had been dismissed on March 14, 1952, at the instance of plaintiff. On October 23, 1952, the United States Pardon Attorney again advised that it had been determined that plaintiff's petition for clemency did not warrant submission to the President. Defendant again took plaintiff into custody, and shortly thereafter plaintiff filed another petition for a writ of habeas corpus. The writ was issued and defendant filed a return setting forth that the petition for the writ was identical to the petition which had been previously filed, except for the name of the director, and upon which the district court had decided the issues adversely to plaintiff. The return was not traversed. The district court found that the second petition for habeas corpus was identical in substance to the petition previously filed, and on November 24, 1952, entered judgment quashing the writ and remanding the plaintiff to custody. This appeal followed.

We do not have before us a transcript of the proceedings had before the Department of Immigration and Naturalization. As stated, a copy of the testimony there taken and the exhibits received were attached to the return in the earlier habeas corpus proceedings. However, the appeal therein was dismissed and the record made before the department was not made a part of the record in the appeal now before us. In fact, in addition to the pleadings, the record in the instant case consists largely of a colloquy between plaintiff's counsel and the court.

Plaintiff now claims that he should not be deported because he is a citizen of the United States. It is not clear just when he first claimed to be a citizen of this country. Certain it is that no such averment was made in either of his petitions for a writ of habeas corpus, although he did use therein the broad language, "That your petitioner is lawfully entitled to remain in the United States of America."

From the statement made by counsel to the district court, as well as from his argument here, it is apparent that plaintiff bases his claim to citizenship on his alleged appearance on a certain occasion late in the year 1903 or early in 1904 before a court of record in White Plains, New York. Counsel asserts that plaintiff there signed an affidavit but claims the record thereof cannot be produced because the naturalization records of that court before 1906 are not in good order. He states that there are 187 instances in those records where an entry previously made was pasted over. Counsel infers that if the records pasted over could be inspected, it might disclose that plaintiff had signed an affidavit renouncing allegiance to the King of Italy and pleading allegiance to the government of the United States. Counsel's knowledge as to the condition of the record is stated to be based on a personal inspection made...