United States ex rel. Natali v. Day

MANTON, Circuit Judge

(dissenting).

The appellant, an alien residing in tho United States for fifteen years, on September 25, 3928, went to Canada and returned September 27, 1928, without inspection, and1 was arrested while attempting to aid another alien across tho international border. *114The Secretary of Labor issued a warrant of arrest, charging that appellant had been found in the United States in violation of the Immigration Act of February 5, 1917 (39 Stat. 874, § 19' [section 155, USCA, title 8]), in that he had entered without inspection, and that he was a person likely to become a public charge at the time of entry. After a hearing, he was ordered deported to Italy.

Section 19 of the Act of February 5, 1917, provides that, , “* * * at any time within three years after entry, any alien who shall have entered the United States * * * by land at any place other than one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.” The section provides that any person so arrested, under the provisions of section 19, on the ground that he had entered or was found in the United States in violation of any other law thereof which imposes upon such person the burden of proving his right to enter or remain or who shall fail to establish the existence of the right of such claim, shall be deported to the place specified in such order. Thus, the statute provides that such an alien, taken into custody upon a warrant of arrest, shall have a hearing, afforded an opportunity to prove his right to enter or remain in the United States. If he is found to have entered unlawfully, he is to be deported. If, on the other hand, as a resident of the United States for more than three years, he may establish his right to enter or remain in the United States, a warrant of deportation will not issue. An alien who leaves the United States and makes a new entry is subject to all the objections that may have been raised against his admission.

The offense of this alien is said to be that he entered without inspection. When he was apprehended and taken into custody, he could establish his right to remain and satisfy the Secretary of Labor that he was not subject to an inspection by officials as he made his entry. This alien was lawfully domiciled in the United States from May 12, 1914, until September 25, 1928. He was entitled to reenter the United States from Canada as a nonquota immigrant without an immigration visa, permit, or passport and without the payment of a head tax. Section 13(b), Immigration Act of 1924, 43 Stat. 153, section 213(b), USCA, title 8.

By Executive Order No. 4813, promulgated February 21, 1928, an alien entering the United States, who had previously been admitted legally into the United States and who had departed therefrom and returned within six months not having proceeded to countries other than Canada, Newfoundland, St. Pierre, Miquelon, Bermuda, Mexico, Cuba, and other islands included in the Bahamas and Greater Antilles groups, is not required to present a passport, visa, or permit to re-enter. Rule 3, subd. 1, par. 2, of the Immigration Rules of March 1, 1927, as amended, makes similar provision. Rule. 1, subd. k, par. 1, of the Immigration Rules of March 1, 1927, provides that returning residents are not subject to a head tax if returning from certain countries including Canada. Thus it appears that by executive order, rule, and statute, it was intended to facilitate the re-entry of an alien into the United States who is returning from a temporary visit abroad. Johnson v. Keating, 17 F.(2d) 50, 52 (C. C. A. 1). He was able to re-enter under the Immigration Act of 1924, and to bar him because his re-entry was without inspection is to deny him the right of enitry which Congress intended1 should be his. In re Wysback, 292 F. 761 (D. C. Dist. Mass. 1923). United States ex rel. Ueberall v. Williams, 187 F. 470 (D. C. So. D. N. Y. 1911), and Singh et al. v. United States, 243 F. 559 (C. C. A. 9, 1917), were decided prior to the 1924 enactment, also the executive order and the rules.

There is no evidence whatever to support the finding that the appellant was likely to become a public charge, the second ground of exclusion.

Whatever may be the criminal offense of the appellant in surreptitiously attempting to aid another in entering the United States,. there is no basis for his deportation. I therefore dissent.