that is, not accompanied by anyone; fourth and lastly, throughout the examinations and hearings he stated that he continued to be on good terms with his wife, wrote to her and sent her money regularly and then, suddenly, at the last hearing, as a reason for his leaving Italy, he stated for the first time, that his wife was unfaithful and having a child or children by other men.
While it may not be completely proper for a Court to determine facts from outside or extraneous circumstances, such circumstances may merit consideration and be of assistance when credibility is in question.
The Court, therefore, turns to analyse the two conflicting accounts of events to ascertain the more probable and accurate statement of fact. On the petitioner's side, we have his story that he was born in 1907; that he married in 1923 at the age of 16 to a girl of 14; that his first born arrived in January of 1924; that thereafter his wife became pregnant; and that in June of 1924 with his 15 year old wife pregnant he left her and came to this country upon a proper passport and visa without telling his own brother who was sailing on the same vessel.
On the other hand, the picture presented by the government is that the petitioner was born in 1907, married on June 19, 1924, and became the father of his first child on August 4, 1925, and the father of his second on January 31, 1927; that the petitioner was called for army service, reported on April 27, 1927, and ultimately released on June 10, 1927 because of physical insufficiency but directed to report again with the class of 1908 (presumably in 1928).
Which of the two accounts would be the more likely picture surrounding the leaving of Italy by the petitioner? It seems that the latter account presented by the government is more consistent with the actual occurrence of events, for naturally if the petitioner had been called for future military service it is doubtful that he could have obtained a passport from the Italian Government.
In arriving at its decision this Court is aware of its limited scope of inquiry and careful not to extend beyond the same, for as succinctly stated in United States ex rel. Rongetti v. Neelly, 7 Cir., 1953, 207 F.2d 281, 284:
'Courts will not interfere with administrative determinations unless, upon the record, the proceedings were manifestly unfair, or substantial evidence to support the administrative finding is lacking, or error of law has been committed, or the evidence reflects a manifest abuse of discretion.'
For a recent application of this principle, see DaCruz v. Holland, 3 Cir., 241 F.2d 118.
From the record here there is substantial evidence to warrant the findings of the administrative body and the action will be dismissed with prejudice.
While the Court is mindful of the separation of the three branches of government and that the judicial branch is not to impinge its ideas upon the executive branch or vice versa, nonetheless it reaches its decision in this matter without enthusiasm and with a possible reluctance. Here is a man now approaching 50 years of age who has lived in this country for approximately 25 years without a criminal record, sustaining himself in an industrious way, and in most respects conducting himself in the law-abiding manner of a good resident if not a good citizen. The executive branch of the government desires to deport him while at the same time the same branch of the government, and properly so, is bringing in the persecuted peoples of Europe by the thousands. It makes it difficult for some to understand.
Counsel will prepare an appropriate order which will contain a provision that no warrant shall issue for a period of twenty days to allow counsel for petitioner time to make application for a stay from the Court of Appeals.