United States v. Tod

• Decision Date: 04 February 1924
• Docket Number: 206.
• Citation: 296 F. 345
• Parties: UNITED STATES ex rel. PALERMO v. TOD, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

296 F. 345

UNITED STATES ex rel. PALERMO v. TOD, Commissioner of Immigration.

No. 206.

United States Court of Appeals, Second Circuit.

February 4, 1924

Appeal from an order of the District Court for the Southern District of New York dated June 23, 1923, dismissing a writ of habeas corpus and remanding relator to the custody of the Commissioner of Immigration at the port of New York for deportation. On January 23, 1923, a hearing was had before a board of special inquiry at the port of New York. Relator testified (through an interpreter) that he was born in New Orleans, La., but had been residing in Palermo, Italy, for 20 years; that when he was 8 years old he went to Italy accompanied by his parents, who had returned to America some 12 years before, and had left him in Italy in care of a friend of his father, who acted as his guardian. From the time relator had been left in Italy by his parents, he had not received any news from them. He produced a baptismal certificate in French, which translated read as follows Tomasso Palermo, of 50 Second street, Strasburg, Pa., was then called as a witness and testified through an interpreter. He stated that he was calling for his brother the relator, and had been notified by his cousin, Bionda Tomassa, that the brother had arrived. Tomasso Palermo further testified that he had been in the United States since 1906, and at that time his brother Antonio was in Palermo that he (Tomasso) had taken out his first papers in Strasburg; that he was married and had three children, the oldest of whom was 24 years old; that he was employed by the Lackawanna Railroad Company, at $4.50 a day, had $500 in the bank of Strasburg, Pa., and owned the house in which he lived. He further testified that his parents were in Palermo, Italy, but had been in New Orleans '30 years ago'; that he did not know when they left New Orleans, because he was in Italy and they were in Louisiana, and they had lost track of each other; that the difference in age between him and relator was accounted for by the fact that the relator was the youngest of the family. He then testified that he had two more brothers in Italy, and gave their names and ages. He further testified that his brother Antonio, the relator, was born in New Orleans, and that he remembered that the brother was about 8 or 9 years old when he (Tomassa) came to the United States in 1906. He also stated that his father's name was Vincenzo Palermo and his mother's maiden name Vincenza Mascara.

Relator, upon being recalled, gave the same testimony as to the names of his father and mother, and said, when asked who was the witness who appeared for him, that it was his brother Palermo Tomassa. He was then asked how long before his father and mother were in the United States, and he stated that they had returned to the United States some 12 years before, repeating in that respect what he had previously answered.

Upon this testimony, relator was excluded upon two grounds: (1) That the so-called Italian quota was full; and (2) as being a person guilty of 'an offense involving moral turpitude, namely, perjury. ' Relator then obtained a writ of habeas corpus, and, when the matter came on for hearing, the District Judge directed that relator be re-examined by the immigration authorities on such additional evidence as he might obtain in respect of his birth in the United States.

In pursuance of this direction, a hearing was had on April 25, 1923. The attorney for relator telegraphed the rector of the St. Louis Cathedral at New Orleans, La., requesting information as to what the records of the church showed regarding date of baptism and date of birth of Antonio Palermo, because 'record not satisfactory to immigrant authorities, as year of baptism not clear. ' In answer to this telegram, the rector of St. Louis Cathedral at New Orleans, telegraphed: 'Register, twenty-eight, folio our twenty-two. Baptismal record of Antonio Palermo, son of Vincent Palermo, born June ninth, Eighteen ninety-four. Baptized October 1st, 1894.'

A witness, Andrea Salerno, of 173 West Houston street, New York City. was produced, who testified that, with the exception of one absence of 3 months, he had lived continuously in the United States since 1890, and that from 1890 until 1896 he had lived in New Orleans, and knew Vincenzo Palermo, the father of Tomasso and Antonio; that he became acquainted with him in 1894, and worked with him on a sugar plantation; that one child was born in 1894 in New Orleans, and that the child was a boy, and that he (Salerno) was in the house when the boy was born; that he knew the child was baptized and, if 'I remember right,' his name was Carmelo, but he was not sure of the name; that he did not know whether the boy's parents had ever returned to Italy, as he had left New Orleans, and that he was sure that Antonio was the boy born in New Orleans, because Antonio's brother had called at his house and told him, 'My brother is here now.'

It was noted in the record that the certificate of baptism was 'indefinite,' because one French word had been crossed out and two other words written in; but this was all made clear by the later information from the Cathedral in New Orleans.

At the end of this second hearing, the previous decision of the board was sustained, for the reasons given, and one of the board voted to affirm decision because the sole claim to nativity in the United States was 'based upon a baptismal certificate, which is inaccurate and does not certify as to the place of birth by any of the signatories, and upon the testimony of one Salerno, whose testimony is not conclusive that this person was...