56031/933
Decided by the Board April 17, 1941. Approved by the Attorney General June 30, 1941.
Entry before July 1, 1924 — Evidence — Section 23 of the Immigration Act of 1924 — Effect of denial of registry under section 328 (b), Nationality Act of 1940.
1. When the weight of evidence establishes that an alien last entered the United States before July 1, 1924, the effective date of the Immigration Act of 1924, he has met the burden of proof placed on him by section 23 of that act.
2. When the issue is whether an alien last entered the United States before or after July 1, 1924, evidence controverting an official Italian report that the alien left Italy in 1926 will be considered, it appearing that the report was not based on official records but on information obtained from witnesses.
3. The denial to an alien of a certificate of lawful entry under section 328 (b) of the Nationality Act of 1940 on the ground that he failed to establish residence in the United States since a time prior to July 1, 1924, is not res judicata on the issue of the length of his residence here so as to bar a finding in a deportation proceeding that he last entered prior to that date.
CHARGE:
Warrant: Act of 1924 — Immigrant without immigration visa.
Mr. Gaspare M. Cusumano, of New York City, for the respondent.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
Mr. Anthony L. Montaquila, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: Warrant of arrest on the charge above stated was issued April 18, 1940, and was served April 20, 1940. A hearing was accorded the respondent at Ellis Island on May 20, 1940, and on subsequent dates. The respondent was represented by counsel above mentioned. The presiding inspector, while finding that the respondent is not subject to deportation, proposes that action be deferred to enable him to make application for registration under the Act of March 2, 1929 (now sec. 328 (b) of the Nationality Act of 1940). The Service attorney does not believe that the record justifies cancellation of proceedings and suggests that registry proceedings be reopened and further inquiry be made in Italy concerning a consular report, which will hereafter be discussed.
The matter is now before this Board for review and decision.
The respondent is at large on bond in the sum of $500.
DISCUSSION: The respondent is a native and subject of Italy, born on September 2, 1893, and therefore now 47 years of age. The issue presented in this case is whether the respondent entered the United States before the effective date of the Immigration Act of 1924, to wit, July 1, 1924, or on or after that date. No claim is made to lawful admission. Warrant of arrest was issued on the theory that entry into the United States occurred subsequent to June 30, 1924. The respondent has continuously asserted that he entered the country prior to July 1, 1924. If his contention be a fact, proceedings must be canceled since he could not have entered in violation of the terms of the Immigration Act of 1924.
On March 21, 1938, the respondent made application for registry under the Act of March 2, 1929, and claimed that he entered the United States at New York on February 17, 1921, illegally. Registry was denied because the respondent had failed to establish continuous residence in the United States since prior to July 1, 1924. As a result of the denial of that application the present deportation proceedings were instituted.
In these proceedings the respondent testified that his one and only entry into the United States occurred February 17, 1921, at the port of New York ex-S.S. Re d'Italia, when he came as a stowaway. The evidence to affirmatively show arrival in the United States on or after July 1, 1924, consists of a report transmitted by the American consul general at Naples and a letter from the deputy medical superintendent of the Metropolitan Hospital, Welfare Island, N.Y.
The consular report referred to was made at the request of this Service. It is short and reads as follows:
In accordance with the Department's instruction, an investigation has been conducted by the Royal Italian Inspector of Emigration at Naples, who has now informed me as follows:
F---- F----, son of Giuseppe and of Marion Domenica A----, born at Marittima di Lecce on September 2, 1893, emigrated to the United States of America in 1926, having embarked at Genoa. He has never returned to Italy.
"It has not been possible to learn the name of the vessel on which he embarked, nor the exact date or port where he disembarked.
"His wife died at Brindisi on September 2, 1939, and his only daughter, Benedetta, has not had news from her father for many years. His photograph is returned."
It is to be observed that the Royal Italian Inspector of Emigration in Naples merely made the assertion that the respondent emigrated to the United States in 1926, without giving the basis of his information. Nothing indicates that the statement is based on official records. It has been observed by this Board that when the Italian Emigration authorities base a statement as to the date of a departure of an Italian subject from Italy on official records they so state. The respondent alleges that the report of the Italian authorities was obtained after questioning his daughter in Italy. To establish this point he submitted a letter received from his daughter. This letter unfortunately, was lost by the Ellis Island office of this Service. However, it was stipulated between the presiding inspector and alien's counsel that the substance of the letter reported by the respondent would be accepted in evidence. In this summation of the letter the respondent says that his daughter stated an Italian police officer and an investigator called upon her to ask how long he had been away from Italy, and that his daughter told the investigators her father left when she was a small child. She told the officials that her mother had always been ill from heart disease and did not remember when her husband (the respondent) left Italy. The daughter then said that the Italian officers advised her that they would put down 1926 as the date the respondent left his native country.
The Service attorney believes that the report of the Italian authorities should not be questioned by means of evidence of this character, and if that report is not to be accepted at its face value at least a further investigation in Italy should be conducted. He goes on to say that unless this is done we would be calling into question the credibility, if not the honor, of the Italian officers who cooperated with the American consul.
Since the report of the Italian officers does not indicate it was based on official records, we feel we may well accept the evidence above discussed as indicating that the Italian authorities obtained their information from questioning the respondent's daughter, and possibly others, as to when the respondent left Italy. In a word, the report would seem to be based on information gathered from witnesses. We do not have the statements of those witnesses, nor do we know whether they were under oath. While agreeing with the Service attorney that a report obtained through officials of a foreign government, at the request of this Government, should be given due weight and consideration, we must, nevertheless, consider the basis upon which the report was made in determining what weight should be accorded it. We see little to be gained by suggesting that a further inquiry be conducted in Italy, particularly at the present time, because of unsettled conditions resulting from the war existing in that country. The report from Italy seems to be nothing more than a conclusion reached by the Italian authorities after questioning witnesses. Although this is evidence, and is so considered, it is not conclusive of the issue presented.
The second item of evidence tending to indicate an arrival of the respondent in the United States after June 30, 1924, is, as above stated, the letter from the medical superintendent of the Metropolitan Hospital of Welfare Island, which is addressed to the District Director of Immigration and Naturalization of New York and which reads as follows:
In reply to your letter of April 25, 1939, please be advised that the records of the Metropolitan Hospital show that at the time P---- F---- was admitted on January 18, 1928, he stated that his length of residence in the United States and New York City was 2 years.
The respondent denies that he told anyone at the Metropolitan Hospital at Welfare Island that he had only been in the United States 2 years. There is also made a part of the record a letter from the Acting Case Supervisor, Department of Welfare of the City of New York, dated May 4, 1939, addressed to the District Director of Immigration and Naturalization at New York and referring to the respondent, in part states as follows:
According to our recipient's application blank, he had lived at 1143 First Avenue from January 1933 until September 1933, and from September 1933 to February 1935 at 304 East Sixty-second Street. In July 1934, during an interview, Mr. F---- told our worker that he was an alien and that he had arrived in this country 12 years before. On February 18, 1935, he stated that he had come here in 1921, leaving his wife and child in Italy.
Thus we have two statements made by the respondent long prior to the pendency of an immigration case, one of which is consistent with the theory that the respondent entered the United States in 1926 and the other of which bears out his present allegation that he came in 1921. There is no reason to believe that one of these statements is to be accepted over the other, and so far as their evidentiary value is concerned they practically cancel each other.
To prove residence in the United States since 1921 there is, first, the consistent story of the respondent under oath that he did come in 1921 as a stowaway, supported by a reasonably detailed account of his activities in the United States since then, making due allowance for the fact that he was an itinerant laborer with no documentary evidence to support his assertions.
The respondent did, however, produce one witness, one Erman Scudellari, to testify in his behalf. The respondent testified that he was first employed after his arrival in the United States in 1921 by the Washington Construction Company. Mr. Scudellari is the president of that concern. He testifies that the alien worked for his company between 1921 and 1925, although not continuously. His company has no records of the respondent's employment, since he worked as a common laborer, but the witness says he refreshed his recollection by consulting his superintendent, who, the witness says, has a very keen recollection. The witness identifies in his mind the time the respondent was employed by him because he associates the respondent's employment with certain jobs. Specifically, he makes reference to employment on a job at 300 Park Avenue, which his company started in April 1921. The witness says the respondent worked on various other jobs up to and including July 19, 1925, and mentions the Montefiore Home and Hospital, in New York, the Kings County Hospital, in Brooklyn, and the St. John's Hospital, in Brooklyn. The witness is not related to the respondent, and there is no reason to believe that he is not testifying in accordance with his own best recollection.
If the testimony of Mr. Scudellari had been based on records of his company, it would be practically conclusive that the respondent entered the United States in 1921. We must take into consideration the possibility of error of recollection when one testifies solely from memory. In the present case, however, the witness identifies the time the respondent first worked for his company by reference to a particular job which he knows the company had in 1921. This makes rather persuasive the testimony of this witness.
At the registry hearing one Louis Avidano says that respondent lived in a boarding house which the witness operated, but he has no records from which he could refresh his recollection. Avidano says he first saw the respondent about February 1921. He adds the respondent lived in his (Avidano's) rooming house for 2, 3, or 4 years. It is apparent that this witness has but a hazy memory of this event, and his testimony has not much weight.
Section 23 of the Immigration Act of 1924 provides in part that "in any deportation proceeding against any alien the burden of proof shall be upon such alien to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, * * *." There are decisions holding that under this provision of law the burden is upon an alien to establish that he entered the United States prior to July 1, 1924 ( Monji Uyemura v. Carr, 99 F. 2d 729; Ex parte Kurth, et al., 28 F. Supp. 258; Werrmann v. Perkins, 79 F. 2d 467; Ex parte Keizo Kamiyama, 44 F. 2d 503). There is logical reason for the view that if the Government asserts that an alien is deportable under a statute it must show that the statute has application to the case. Ordinarily in deportation proceedings the burden is upon the Government to establish deportability. The only exception is that made by section 23 above quoted. That section would seem to be limited to those aliens who allege a lawful admission to the United States or to those cases in which evidence indicates an entry after June 30, 1924.
However this may be, it is the view of the Board of Immigration Appeals that the weight of the evidence in this case establishes entry of the respondent in the United States prior to July 1, 1924. In the final analysis we have only on the one hand a report from the Italian emigration authorities, without the basis for the report, that the respondent left Italy in 1926, and on the other convincing testimony of a disinterested witness reasonably showing the presence of the respondent here since 1921.
Of great value in determining a factual issue of this kind, where the weight to be placed on the testimony of Scudellari depends to a degree on his demeanor and conduct on the witness stand, is the finding of the presiding inspector who observed this man when testifying that the respondent did enter the United States prior to July 1, 1924. We feel, therefore, that on this record proceedings should be canceled.
We are unable to agree with the Service attorney that disposition of this case should depend upon the ability of the respondent to qualify for registration under section 328 (b) of the Nationality Act. If it is not established that the respondent is deportable under the act of 1924, this proceeding must be canceled. Whether the respondent wishes to pursue his quest for registry is immaterial. We are here concerned solely with the question of whether the respondent is legally deportable.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record in this case it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent entered the United States prior to July 1, 1924.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
That under sections 13 and 14 of the Immigration Act of 1924 the respondent is not subject to deportation on the ground that at time of his entry into the United States he was not in possession of an unexpired immigration visa.
Because of the nonconcurrence of the Service attorney with this conclusion, the case must be certified to the Attorney General for review of the Board's decision.
ORDER: It is ordered that proceedings and bond be canceled.
The decision and order of the Board of Immigration Appeals are hereby approved, and it is directed that the warrant of arrest be canceled. It is further directed that respondent's application for registry be reopened for such further action as may be deemed appropriate in the light of this determination.