Opinion
No. 40.
December 5, 1932.
Appeal from the District Court of the United States for the Southern District of New York.
Habeas corpus proceedings by the United States of America, on the relation of Adrian Hendrik Lamp, against Edward Corsi, as Commissioner of Immigration at the Port of New York. From an order sustaining the writ of habeas corpus and discharging the relator from custody, the respondent appeals.
Order reversed.
Adrian H. Lamp, the relator, is a citizen of Holland who first entered this country lawfully in 1911. While living here, he has made temporary visits abroad. Since the quota was established, he re-entered each time until 1930 on re-entry permits except once, when he presented and entered on an immigration vise. On April 4, 1930, he entered at the port of New York, ex steamship Statendam, as a citizen of the United States. The record does not disclose in a satisfactory manner the circumstances surrounding this entry. Yet the fact that he did then enter as an American citizen does appear from a certificate of admission which is uncontradicted, and it seems to have been taken for granted by all concerned at the hearing that he gained admission by means of an American passport which he had fraudulently obtained. Indeed, this record shows that, when special agents of the State Department were investigating passport frauds in New York, he offered to and did give them such information as to how aliens could buy passports that he was told that he would not be prosecuted.
After he had last entered in the guise of a citizen, he desired to make another visit abroad, and in July, 1930, made application for another re-entry permit. He then concealed the fact that his last entry was in the previous April as an American citizen and falsely stated in his application that he had last entered the United States at the port of New York on June 26, 1926, ex steamship Leviathan. He had in fact then entered and his re-entry permit was issued to him on the strength of his false representation that it was his last entry. His only explanation of this falsification is that he made the statement in his application on the advice of a special agent to whom he had given information in the passport investigation. Having thus obtained a permit to re-enter, he went abroad again, returned on September 29, 1930, as a passenger on the steamship De Grasse, and gained admission at the port of New York on that day by means of the permit. He was arrested in May, 1931, on a deportation warrant charging entry without a vise and without inspection, and ordered deported.
George Z. Medalie, U.S. Atty., of New York City (William Jay Hoff, Asst. U.S. Atty., of New York City, of counsel), for appellant.
Harper Matthews, of New York City (Harold Harper and Vincent P. Uihlein, both of New York City, of counsel), for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
When the relator falsely represented himself to be an American citizen at the time he entered in April, 1930, he was not examined as an alien. On the contrary, he evaded such an examination when he succeeded in getting passed as a citizen. Compare Saadi v. Carr (C.C.A.) 26 F.2d 458. Every alien who comes into the United States must enter as an alien whether he has been here before or not. Lapina v. Williams, 232 U.S. 78, 34 S. Ct. 196, 58 L. Ed. 515. And every alien who departs from any place outside the United States destined for this country is an immigrant within the meaning of the Immigration Act unless he proves himself to be within one of the exceptions. Karnuth v. United States, 279 U.S. 231, 49 S. Ct. 274, 73 L. Ed. 677. The relator, therefore, when he entered by subterfuge in April, 1930, as an American citizen, being an alien immigrant, was at best then a nonquota immigrant by virtue of his previous lawful residence here. As an alien he was not entitled to admission unless he had either an unexpired immigration vise or a re-entry permit. 8 USCA § 213 (a, b): Regulations Jan. 1, 1930, Rule 3, F(1) and I(2); United States ex rel. Polymeris et al. v. Trudell (C.C.A.) 49 F.2d 730, affirmed 284 U.S. 279, 52 S. Ct. 143, 76 L. Ed. 291. Accordingly, he was unlawfully in the United States when he applied for the re-entry permit the following July, and was not entitled to the permit he obtained on the false statement that his last entry was in 1929. That this was a misrepresentation of a material fact is obvious, for it was in effect a representation that he had not entered in 1930 as an American citizen and not only the suppression of a fact that made his presence here unlawful, but a false answer to a direct question concerning it. It was not the concealment of irrelevant matter as in United States ex rel. Iorio v. Day (C.C.A.) 34 F.2d 920; nor in the face of this positive evidence of fraud can the prima facie validity of a re-entry permit [see United States ex rel. Iodice v. Wixon (C.C.A.) 56 F.2d 824] be accorded this one. The permit fraudulently obtained by the alien was in law no permit at all, and gave him no right to entry. As he has not proved that he was otherwise entitled to enter and the burden of proof is upon him (8 USCA § 221; United States ex rel. Polymeris v. Trudell, 284 U.S. 279, 281, 52 S. Ct. 143, 76 L. Ed. 291), he is now unlawfully here. Being an alien immigrant who entered without either an immigration vise or a valid re-entry permit, he is subject to deportation, since he entered in violation of law. 8 USCA §§ 155 and 214. Compare Felich v. Meier (C.C.A.) 23 F.2d 185. Since he had no valid permit, he needed a vise as a quota immigrant, but we do not now decide that his last entry was without inspection.
Order reversed.