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ANSELMO v. HARDIN

March 7, 1957

Vincenzo ANSELMO, Petitioner,
v.
H. L. HARDIN, District Director of Immigration and Naturalization for 21st Immigration District, 1004 Broad Street, Newark 2, New Jersey, Respondent



The opinion of the court was delivered by: MADDEN

This is an action instituted by the petitioner, Vincenzo Anselmo, under the Declaratory Judgment Act, 28 U.S.C.A. § 2201 et seq., and under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., for review of a ruling of the Immigration and Naturalization Service that the petitioner is deportable and is to be deported to his native country, Italy.

This matter, like so many similar to it, has a lengthy history and, unfortunately, a good portion of it must be reviewed here for the sake of clarity. The prime question throughout is the date of the petitioner's entry into this country. Both parties are in agreement that if he entered, even illegally, before July 1, 1924, he is not deportable, for then he would have acquired a non-deportable alien status under the Immigration Act of 1917; *fn1" but, if he entered after said date, he would be subject to the Immigration Act of 1924 *fn2" and deportable at any time.

 On November 16, 1934, the petitioner filed a Declaration of Intention to be naturalized and therein stated that he was born March 2, 1907, at Palmi, Italy; that on June 19, 1923, he married one Caterina Rizzitano, at Palmi; that of this marriage two daughters were born, Rosaria, January 4, 1924, and Ines Grazia Pasqualina, January 9, 1925; that his last place of residence was Palmi, Italy; and that he arrived in this country at the Port of New York on June 28, 1924 upon the vessel, Giulio Cesare.

 Inasmuch as there is no record in the Immigration and Naturalization Service's files of the petitioner having entered this country at the time and place aforementioned, an investigation ensued. As part of this investigation an examination of the petitioner was conducted on May 14, 1936, during which, among other things, he claimed entrance into this country as set forth above and that he had obtained his passport at the Counsel's Office at Messina, Italy. He further claimed his marriage in 1923 and two children born thereof, Rosaria, born in June or July of 1923, and Ines Grazia Pasqualina, born in 1925.

 Subsequently, the petitioner was arrested on a deportation warrant, released on bail and afforded a hearing during which he was represented by counsel. At this hearing, the petitioner testified that he was born March 2, 1907, at Palmi, Italy; that he married Caterina Rizzitano on June 19, 1923, at Palmi, Italy; that two children were born of the marriage, Rosaria, born at Palmi, January 4, 1924, and Ines Grazia Pasqualina, born January 9, 1925. He also stated that he arrived in New York aboard the Giulio Cesare on June 28, 1924, accompanied by his brother, Rasario Anselmo (whose entry at such time and place is recorded).

 Also at this hearing, the government produced documents such as birth and marriage certificates, showing dates other than those testified to by petitioner, to refute the petitioner's testimony; and the petitioner produced similar documents to substantiate and corroborate his testimony. However, doubt was cast upon the authenticity of the latter documents by the government. It appears that prior to the administrative hearing the petitioner had submitted these documents to officers of the Immigration and Naturalization Service, who, in turn, had submitted them, through the State Department, to the local authorities in Italy for verification. When returned by the Mayor of Palmi, Italy, the documents contained notes subscribed thereon by the Mayor, as follows:

 'The signature above affixed to this certificate is not my own. It is false. Likewise the seal is not currently used.'

 As a result of the above hearing and a review, the Board of Review, on November 4, 1938, held that the charge of deportability had been sustained and a warrant issued, on November 15, 1938, for the petitioner's deportation. Thereafter, the petitioner sued out a writ of habeas corpus before this Court and on May 23, 1940, the late John Boyd Avis, honorable and beloved judge of this Court, filed an opinion wherein, inter alia, he said:

 'There is no direct testimony which sustains the position of the respondent (Hughes, then District Director of Immigration). The indirect evidence does not substantially support the finding. It follows that the order of deportation is arbitrary and capricious, and cannot be sustained under the evidence presently before the court. However a reading of the record indicates that a proper investigation would develop facts upon which to base a determination one way or the other. The writ will be held for a reasonable time and the matter referred to the Department of Labor for further investigation and determination.'

 The Service now asserts that through some inadvertence it was not appraised of Judge Avis' opinion until July 10, 1941, and by that time conditions had reached such a stage in Italy as a result of the war that further investigation was impossible. On March 24, 1944, Judge Avis having died in the meantime, Judge Forman, likewise of this Court and now its Chief Judge, in view of no additional information being available made the writ absolute. Thereafter, on December 2, 1947, the Commissioner of Immigration and Naturalization cancelled the proceedings without prejudice.

 A new deportation proceeding was commenced against the petitioner March 11, 1948 by the issuance of a warrant for arrest of the alien charging that the petitioner was subject to deportation under 'The Immigration Act of May 26, 1924, in that, at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.'

 Ensuing the issuance of the new warrant, hearings were held on December 11, 1950, December 11, 1951, February 14, 1952, March 14, 1952 and February 10, 1953. At the last administrative hearing, as a result of the testimony, an additional charge was lodged against the petitioner as grounds for his deportation, namely, that he entered the United States without inspection. Throughout these hearings the petitioner was represented by counsel.

 In addition to the incorporation of the record and exhibits of the previous administrative proceedings into the record of these later proceedings, the government presented the following authenticated documents:

 First, the birth certificate of the petitioner, Vincenzo Anselmo, born on March 2, 1907, of Pasquale and Rosaria Melluso, at Palmi, Italy.

 Second, the birth certificate of the petitioner's wife, Caterina Rizzitano, born on March 2, 1909, of Guiseppe and Maria Grazia Lanzo, at Palmi, Italy.

 Third, the certificate of marriage of Vincenzo Anselmo, son of Pasquale and Rosaria Melluso, living at Palmi, single, aged 17, and Caterina Rizzitano, daughter of Guiseppe and Maria Grazia Lanzo, living at ...


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