United States v. Schlotfeldt

• Decision Date: 19 January 1938
• Docket Number: No. 6153.,6153.
• Citation: 94 F.2d 263
• Parties: UNITED STATES ex rel. LEIBOWITZ v. SCHLOTFELDT, District Director of Immigration and Naturalization.
• Court: U.S. Court of Appeals — Seventh Circuit

94 F.2d 263 (1938)

UNITED STATES ex rel. LEIBOWITZ v. SCHLOTFELDT, District Director of Immigration and Naturalization.

No. 6153.

Circuit Court of Appeals, Seventh Circuit.

January 19, 1938.

Michael L. Igoe, U. S. Atty., and A. Bradley Eben, Asst. U. S. Atty., both of Chicago, Ill., for appellant.

Martin Weisbrod and Harry J. Busch, both of Chicago, Ill., for appellee.

Before EVANS, MAJOR, and TREANOR, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from an order, in a habeas corpus proceeding, discharging appellee from the detention and custody of appellant, where he was by reason of a deportation warrant issued on the grounds that appellee, as an alien, entered this country without an unexpired quota immigration visa as required by law. Section 213 (a), title 8, U.S.C.A.

Appellee was born on December 28, 1898, in Kuldiga, Latvia, and was given the name of Leib Leibowitsch. From 1915 until 1919 he was in Russia, serving a part of that time in the Russian Army. He then returned to the place of his birth and later moved to Riga, Latvia, where he remained until 1923. During this period his native land was in a state of civil warfare and he, like others of similar age, in order to escape military service in the revolutionary army, applied to the Department of Registry for a birth certificate in his brother's name of Feive and presented himself to the military authorities under such name and age. Men were called for service who were born between 1895 and 1899, and his brother Feive was born in 1891. It is said by appellant that appellee assumed his brother's name and age in order to avoid being drafted in the army of his "native country." Due to the confusion existing on account of the civil war then in progress, it is difficult to determine from the record just what his "native country" was. In fact, it appears he was a man without a country. It seems plain, however, that he took this action to avoid military service, but whether it was from his "native country" or some other country, we need not determine.

After his return to his native land in 1919, appellee continuously used the name of his brother. Under that name he was issued a permit by the Latvian government in 1921 granting him the right to operate a tannery. The same government issued him a passport which was used in his travels of various countries. He did business under and was known by that name until his entry into the United States. In 1923 appellee made application for a quota visa from the American consul in Riga, at which time he stated that his name was Feive Leibovitsch and that he was born May 28, 1891.

July 28, 1927, a quota immigration visa, signed by the American consul at Latvia, was granted appellee after he stated under oath that his true name was Feive Leibovitsch and that he was born in 1891. Armed with this visa and a Latvian passport, he proceeded to the United States, entering at Ellis Island September 16, 1927.

November 30, 1927, at Rock Island, Ill., appellee, under the name of Leibe Faive Leibovitz, filed a declaration of intention seeking citizenship.

In February, 1928, he traveled to Latvia after obtaining a re-entry permit under the name of Feive Leibovitz, returning to the United States October 5, 1928, when he secured admission by virtue of such permit. Since then, he has continuously resided in this country.

In 1934, he applied for his certificate of naturalization and at that time disclosed to the examiner the circumstances relative to the confusion as to his name. After an investigation by the Department of Labor, a deportation warrant was issued and appellee arrested as above related. Appellee's explanation for stating the assumed name and age in connection with the obtaining of the visa from the American consul was to the effect that, inasmuch as he had continuously used that name and age for many years and being possessed of a Latvian passport under such name, to have stated differently would have resulted in complications and delay, and that in so stating he had no purpose or intention of committing a fraud upon this government and especially upon our immigration laws.

The record discloses no reason why appellee would not have been entitled to a quota visa if his correct name and age had been stated; in fact, counsel for the government concede as much and no question is raised affecting his right to enter this country as a quota immigrant other than the false statements made in connection with the obtaining of the visa.

The legal question thus involved is: Was appellee's original entry under such circumstances, legal? Under section 213 (a), title 8, U.S.C.A., no immigrant of the class of the appellee is to be admitted into this country unless he presents a proper immigration visa. That he presented a visa regular on its face is conceded, but it is claimed by the government that the misrepresentation made by appellee as to his name and age in obtaining the visa was of such a fraudulent nature as to vitiate the same, and that appellee is in a position no different than an immigrant who has entered without such a document.

Section 207 (b), title 8, U.S.C.A., sets forth numerous requirements which shall be contained in an application for an immigration visa, among which are: The immigrant's full and true name; age, sex and race, and the date and place of birth.

The answer to the question presented cannot be given as readily as might first appear. A large number of cases have been cited in support of the opposite contentions as made by the respective parties. The case most favorable, perhaps, to appellant is that of U. S. ex rel. Murphy v. McCandless, D.C., 40 F.2d 643 (affirmed 3 Cir., 47 F.2d 1072), wherein an immigrant assumed the name of her sister in securing a visa. The reason given for impersonating her sister was that the latter had secured a steamship ticket to the United States and it was decided that the immigrant should come to this country in her stead. The court held the immigrant was subject to deportation. There is this distinction between that case and the present one, in that in the cited case the impersonation was assumed for the express purpose of entering this country, while in the present case the visa obtained by appellee was under a name and identity long before established.

Appellant also relies upon the cases of Popa v. Zurbrick, 6 Cir., 45 F.2d 583; U. S. ex rel....