United States v. Sweet, 9797.

• Decision Date: 23 August 1955
• Docket Number: No. 9797.,9797.
• Parties: UNITED STATES of America ex rel. Angelo Frank BRUNO, Petitioner, v. James M. SWEET, Acting Commissioner in Charge, Immigration and Naturalization Service, Kansas City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

133 F. Supp. 3

UNITED STATES of America ex rel. Angelo Frank BRUNO, Petitioner, v. James M. SWEET, Acting Commissioner in Charge, Immigration and Naturalization Service, Kansas City, Missouri, Respondent.

No. 9797.

United States District Court W. D. Missouri, W. D.

August 23, 1955.

Richard P. Shanahan, Kansas City, Mo., for petitioner.

Edward L. Scheufler, U. S. Dist. Atty., and Horace Warren Kimbrell, Asst. U. S. Dist. Atty., Kansas City, Mo., for respondent.

WHITTAKER, District Judge.

In this habeas corpus proceeding, petitioner challenges the legality of an order, made July 12, 1954, by special inquiry officer, Jerome T. McGowan, of the Immigration and Naturalization Service, affirmed on appeal, on March 4, 1955, by the Board of Immigration Appeals, finding, after hearing pursuant to warrant of arrest served upon petitioner January 16, 1948, that petitioner (1) last entered the United States at Detroit, Michigan, on January 15, 1948, without having a valid immigration visa, and, therefore, illegally, and (2) that, while an immigrant for permanent residence in the United States, he pleaded guilty in the District Court of the United States for the Western District of Missouri, to the fifth count of an indictment returned August 15, 1934 (in cause No. 12637 in that Court), charging him with the sale of narcotics in violation of the law, and resulting in his sentence by that Court, on October 24, 1934, to a term of two years' imprisonment, and, accordingly, ordering petitioner deported to his native Italy, and challenging the legality of a warrant for his deportation accordingly, issued by the District Director of the Immigration and Naturalization Service on March 15, 1955.

Issue being joined, the cause was heard by the Court on June 28, 1955, and, at the conclusion of the evidence, the parties were given leave to file, and they have now filed, briefs, in support of their respective positions, which I have considered.

The evidence, stated succinctly, shows that petitioner, then five years old, first entered the United States in 1907 at the port of New York, for permanent residence; that on October 24, 1934, he was convicted, in the United States District Court for the Western District of Missouri, upon a plea of guilty, of selling narcotics in violation of the law, and was, therefore, sentenced by that Court to a term of two years in the United States Penitentiary at Leavenworth, Kansas; that neither the District Attorney nor the Court made any recommendation to the Immigration and Naturalization Service against deportation, within thirty days allowed therefor by Section 155(a), Title 8 U.S.C.¹ — though on July 10, 1943, the District Attorney (with the endorsed concurrence of the Judge of the Court), and on November 21, 1944, the Judge of the Court, wrote the Immigration Service, recommending against deportation, the latter saying that he had not known within the thirty-day period, or until recently before his letter, that petitioner was an alien; that while petitioner was still serving his sentence at the Leavenworth prison, and when about to be released therefrom, a warrant of arrest was caused to be issued by the service for petitioner, on May 21, 1936, charging that he was subject to deportation because of (1) entry into the United States from Canada in 1933 or 1934, after a visit of about one hour in that country, by false and misleading statements that he was an American citizen, and (2) his conviction of October 24, 1934, for the illegal sale of narcotics, as stated; pursuant to that warrant, and after hearing, the Board of Review, on June 22, 1936, ordered that petitioner be deported to Italy, and on July 16, 1936, warrant of deportation accordingly was issued; pending further proceedings in that matter, petitioner was admitted to bond, which was breached by his unexcused departure and the penalty was forfeited; in April, 1943, he was located in Detroit (through routine fingerprinting by an employer), when he was again apprehended, but released on $2,500 bond, by immigration authorities; that pursuant to further proceedings initiated by petitioner, the Board of Immigration Appeals, on July 1, 1944, directed that the proceedings be reopened and the outstanding warrant of deportation, issued on July 16, 1936, be withdrawn, to permit petitioner to apply for discretionary relief under Section 19(c) of the Act of 1917,² and it granted petitioner voluntary departure, with preexamination, and ordered that petitioner be admitted to the United States under the seventh proviso of Section 3 of the Act of 1917,³ solely with respect to the ground of exclusion arising from his narcotics conviction and sentence of October 24, 1934; that having previously arranged an appointment for January 15, 1948, with the American consul in Windsor, Canada, for the purpose of obtaining from him a lawful visa to the United States, petitioner, for the purpose of keeping that appointment, on that date, attempted to enter Canada at Windsor, but the Canadian authorities refused to admit him, and he returned to Detroit, but, later, on the same day, he entered Canada, at Windsor, over the International Bridge, illegally, by stating that he was a United States citizen, and was arrested by the Canadian immigration officials and fined $50 and deported to the United States as "a Canadian deport"; that upon his being returned to Detroit, a new warrant of arrest, dated the next day, January 16, 1948, was issued for him, and he was served and taken into custody thereunder on that day. That warrant constitutes the basis of the proceeding upon which he has been ordered deported, and charged that he was subject to deportation because (1) he had entered the United States (on January 15, 1948) as an immigrant and not in possession of a valid immigration visa, and not exempted by law from having one, and (2) because of his narcotics conviction and sentence of October 24, 1934.

That, thereafter, on November 3, 1949, a hearing was had, pursuant to said warrant, before presiding inspector, Turner A. Cochran, at Kansas City, but not under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and before any findings or order had been made in that proceeding, the Supreme Court of the United States decided the case of Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, holding that deportation hearings were subject to the Administrative Procedure Act, and, thereafter, on April 15, 1954, a new hearing was held, upon said outstanding warrant of arrest on January 16, 1948, before special inquiry officer, Jerome T. McGowan, at Kansas City, at which the evidence adduced was fully heard, and at which hearing petitioner filed an application for "Suspension of...