United States v. Parisi, 2471.
Decision Date | 11 August 1938 |
Docket Number | No. 2471.,2471. |
Citation | 24 F. Supp. 414 |
Parties | UNITED STATES v. PARISI. |
Court | U.S. District Court — District of Maryland |
Bernard J. Flynn, U. S. Atty., and C. Ross McKenrick, Asst. U. S. Atty., both of Baltimore, Md.
Joseph Allen, of Baltimore, Md., for defendant.
In this case the United States has filed its bill in equity to cancel the defendant's certificate of citizenship which was heretofore granted in this court on May 8, 1933, the number thereof being 3716601. The proceeding is based on section 405 of Title 8 of the United States Code, 8 U.S.C.A. § 405, which authorizes the "setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured". The case has been submitted after final hearing on the pleadings and testimony. The evidence in the case is not sufficient to show actual intentional fraud on the part of the defendant in procuring his certificate of citizenship, but the Government contends that it does show that the certificate was "illegally procured".
I find the following facts (not substantially in dispute) from the pleadings and testimony. Ciro Parisi, a native and subject of Italy, first entered the United States at the Port of New York in 1922 as a stowaway, or, as he put it, clandestinely, on the SS "Arabic". At the time of his arrival and entry he succeeded in evading examination by the Immigration Officials and paid no head tax. He went to Philadelphia, Pennsylvania, and remained there until January 1924, when he returned to Italy, where he remained until about April 1, 1924, sailing therefrom on the SS "Colombo" which arrived in New York April 10, 1924. His object in returning to Italy for a short stay was to return to the United States and thereby effect what he was advised by the steamship agents in Philadelphia could be made a lawful entry, as he knew his prior entry in 1922 was unlawful. Immediately prior to his return to the United States on the SS "Colombo" in April 1924, he obtained from the American Vice-Consul at Naples a visa on his Italian passport, with a notation "Exception to quota-returning to domicile in United States". When the SS "Colombo" arrived in New York April 10, 1924, he exhibited his passport with this visa to the Immigration Examiner who also had before him the steamship's manifest which contained the notation that Parisi had previously been in the United States in Philadelphia from 1919 to 1924. The head tax was paid by the steamship company. On these papers he was "passed" by the Examiner with only very brief questions which did not develop the fact that his first entry into the United States had been unlawful. If the latter fact had been known to the Examiner he would not have passed Parisi for lawful entry but would have detained him for examination by a Board of Special Inquiry as the "quota" of immigrants from Italy for the current year had been exhausted. Since this admission Parisi has continuously resided in the United States at various places but since prior to April 22, 1927, in Baltimore.
On April 22, 1927, Parisi filed a declaration of intention to become a citizen stating therein under oath, among other things, that he "arrived at the Port of New York, State of New York, on or about the 7th day of April 1924". On October 21, 1931, he filed his petition for citizenship which contained the statement: "My lawful entry for permanent residence in the United States was at New York, N. Y., under the name of Ciro Parisi on April 10, 1924, on the vessel Colombo as shown by my certificate of arrival attached hereto"; also "I have resided continuously in the United States of America for the term of five years at least immediately preceding the date of this petition, to wit, since April 10, 1924, in the City of Baltimore, this State, continuously preceding the date of this petition since April 10, 1924, being a resident in said County at least six months preceding the date of this petition." He obtained and filed his certificate of arrival which recited his lawful arrival April 10, 1924. In due course thereafter this court on May 8, 1933, ordered that he be naturalized and he obtained his certificate of citizenship, there being no contest thereof by the Government. His unlawful entry in 1922 was not discovered by the Government until recently.
On these facts it is alleged by the Government that the defendant's certificate of citizenship "was illegally procured", even though the facts do not affirmatively show intentional fraud on his part; because the word "illegally" in the statute means "contrary to the provisions of law". The particular illegality set up is that the grant of citizenship was basically founded on the representation that there had been a lawful entry at the Port of New York on April 10, 1924, and a (lawful) residence within the meaning of the statute continuously thereafter in the United States, whereas in fact the entry at New York under the circumstances was not a lawful entry and could not properly be made the basis for a lawful residence thereafter within the United States. The principal question in this case, therefore, is whether this misrepresentation of fact contained in the petition for citizenship is sufficient legal ground for its cancellation even though the representation was not wilfully or intentionally false. Or, in other words, the Government contends that even if Parisi honestly believed that his entry at New York under the advice that he received, and in the absence of a more thorough examination by the Immigration Officer at the Port of entry was lawful, nevertheless, as the grant of citizenship was based on even an innocent material misrepresentation, it was "illegally procured".
The first question to be considered is whether the entry on April 10, 1924 was lawful. The defendant contends that it was. The question must be determined, of course, upon the statutory immigration law then in force, which was the Immigration Act of February 5, 1917 (39 Stat. 874, 8 U.S.C.A. § 132 et seq.), and the Quota Act of May 19, 1921, 42 Stat. 5, as amended May 11, 1922, 42 Stat. 540 ( ).
It is not disputed that Parisi's entry in 1922 was unlawful. Section 3 of the Immigration Act of 1917, 8 U.S.C.A. § 136(l), provided that aliens coming to the United States as stowaways (with exception not here material) should be excluded from admission to the United States. The statute also provided that aliens seeking admission upon arrival should be inspected by medical officers and examined by Immigration Inspectors, and pay a head tax of $8.00. See 8 U.S.C.A. §§ 132, 151, 152. Parisi successfully evaded any inspection or examination and also the payment of the head tax. He knew that his entry was unlawful and his return to Italy was for the express purpose of effecting a lawful entry if he could.
When Parisi returned to the United States April 10, 1924, the Quota Act of 1921 as amended in 1922 was in force and as the quota from Italy had been exhausted for the current year, it is clear that he could not properly have been admitted unless he was rightly classified under section 2(d), 42 Stat. 5, 6, as an "alien returning from a temporary visit abroad", in which event he could have been properly admitted even though the quota was exhausted, as he was apparently "otherwise admissible". The question thus is seen to be whether Parisi was in the category of an "alien returning from a temporary visit abroad". In its bare literal sense he was, but the phrase in its context has a broader significance when we look to the history of the immigration laws and the purposes of the Quota Law.1 It was the express purpose of the latter to strictly limit the number of immigrants from foreign countries. The reason for the qualified exception of "aliens returning from a temporary visit abroad" evidently was that as they had been previously lawfully admitted to the United States they should not be prohibited from returning even though the quota from their country had been exhausted, as admitting them would not increase the number of resident aliens. And historically the particular phrase was one that had for many years been substantially used in judicial opinions relating to the immigration law to distinguish between alien immigrants coming to this country for the first time and aliens who had been permitted previously to enter the country under existing laws and had acquired a domicile here.2 The Immigration Act of 1924 (43 Stat. 153, 8 U.S.C.A. § 201 et seq., effective July 1, 1924) defined a nonquota immigrant as—"(b) An immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad." Sec. 4(b), 8 U.S.C.A. § 204(b). While this Act was not in force when Parisi returned in April 1924, it is in pari materia with the former immigration legislation. There seems to be no legislative history of the new Act to indicate that Congress was intentionally adding to or changing the prior law as to the status of an alien returning from a temporary visit abroad. On the contrary it seems reasonable to infer that the phrase as used in the 1921 Act had the same meaning as that expressly given in the 1924 Act. Transatlantica Italiana v. Elting, 2 Cir., 66 F.2d 542, 545.3 It implied that the alien had previously been lawfully domiciled in this country which could result only from an original lawful entry under the immigration laws. Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585; In re Jensen, D.C., 11 F.2d 414, 415; Hurst v. Nagle, 9 Cir., 30 F.2d 346; United States v. Kreticos, 59 App.D.C. 305, 40 F.2d 1020; In re Wieg, D.C., 30 F.2d 418; United States v. Rodgers, D.C., 182 F. 274, 276, affirmed, 3 Cir., 185 F. 334, 335.4
The failure of the Immigration Officer who passed Parisi to develop the fact that he was not an "alien returning from a temporary...
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