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UNITED STATES v. NEELLY

October 21, 1953

UNITED STATES EX REL. CIRCELLA
v.
NEELLY.



The opinion of the court was delivered by: Campbell, District Judge.

  A petition for a writ of habeas corpus was filed on behalf of one Nickolas Deani Circella on September 14, 1953. The writ was issued on that date by the Honorable John P. Barnes, Judge of this Court.

The petition alleges that Circella is unlawfully restrained of his liberty by Marcus T. Neelly, District Director of the Immigration and Naturalization Service in Chicago, Illinois; and that the cause of restraint is a warrant of arrest issued by the Immigration Service, United States Department of Justice, based upon certain Findings of Fact, Conclusions of Law, and an order of Mr. E.A. Berman, Special Inquiry Officer of the Immigration and Naturalization Service.

The Findings and Conclusions of Mr. Berman, made on April 14, 1953, and alleged in full in the petition, are as follows:

"Findings of Fact

"Upon the basis of the evidence presented, it is found:

"(1) That the respondent (relator in these proceedings) is an alien, a native and citizen of Italy;

"(2) That the respondent first entered the United States at New York, New York, on January 26, 1902;

"(3) That on September 14, 1916, the respondent was convicted in the Criminal Court of Cook County, Illinois, of the offense of assault with intent to murder;

"(4) That the respondent last entered the United States by plane at Miami, Florida, on February 2, 1929;

"(5) That on April 7, 1942, the respondent was convicted in the United States District Court for the Southern District of New York of the crime of conspiracy to interfere with trade and commerce by violence, threats and coercion in violation of Sections 420a, b, d of Title 18 of the U.S.Code.

"Conclusions of Law

"Upon the basis of the foregoing findings of fact, it is concluded:

"(1) That under Section 19 of the Act of February 5, 1917, the respondent is subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit, assault with intent to murder;

"(2) That under Section 241(a)(4) of the Immigration and Nationality Act [8 U.S.C.A. § 1251(a)(4)] the respondent is subject to deportation on the ground that, after entry on to wit, January 26, 1902, he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, assault with intent to murder and conspiracy to interfere with trade and commerce by violence, threats, and coercion in violation of Section 420a, b, d of Title 18 of the U.S.Code."

On the basis of these Findings and Conclusions, Mr. Berman ordered that Circella be deported from the United States.

The petition next alleges that the aforesaid Findings, Conclusions and order were duly entered after Circella was arrested under a warrant for arrest of an alien dated October 1, 1952, in which it was stated that Circella was subject to be deported for the following reasons:

"The Act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to-wit: assault to murder;"

that in addition thereto, at the hearing under said warrant, there was placed the "lodged charge" that Circella is unlawfully in the United States in violation of Section 241(a)(4) of the Immigration and Nationality Act, in that he has been convicted of two crimes involving moral turpitude after his entry into the United States in 1902; and that subsequent to the entry of the aforesaid order of Mr. Berman, Circella appealed to the Board of Immigration Appeals of the Department of Justice, and his appeal was dismissed. Circella concludes his petition with about thirty specific allegations attacking the validity of the order of deportation; the merits of these allegations will be reached at a later part of this memorandum.

On September 21, 1953, Marcus T. Neelly appeared before this court and filed his return to the writ. The return stated, in substance, that at the time the writ issued Mr. Neelly did not have custody of Circella's person, and that Circella was then, and since September 15, 1953 had been in the custody of one Edward J. Shaughnessy within the territorial limits of the Southern District of New York. The return further stated that on September 15, 1953, Circella petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus, naming Shaughnessy as respondent, that the Honorable Sylvester J. Ryan, Judge of said court, has ordered Shaughnessy to show cause why the writ should not issue, and that a hearing on Circella's petition would be held on September 22, 1953.

On October 14, 1953, a hearing was held, and the matter was taken under advisement by the court until this date.

I. Jurisdiction. When the respondent withdrew his challenge to the jurisdiction of this court and agreed to return the relator to this judicial district, it appeared that all jurisdictional questions were finally resolved. However, certain allegations included in respondent's second return to the writ raise these questions once again. The Department of Justice takes the view in its return that this court did not acquire jurisdiction over the relator's person last September 14. Apparently, it is the view of the Department that it has somehow conferred jurisdiction upon the court in deference to the wishes of this Court by transporting relator to this district. This view is perhaps best expressed by paragraphs 10 through 14 of the return, which allege:

"10. On September 14, 1953, the Relator was taken into custody under and pursuant to the aforesaid order and warrant of deportation for removal from Chicago, Illinois, to the custody of Edward J. Shaughnessy, District Director of Immigration and Naturalization at New York, New York, for deportation to Italy, arrangements for which had been completed.

"11. On the same date, to wit, September 14, 1953, after the Relator had been placed en route from Chicago, Illinois, to New York, N.Y., his attorney presented a Petition for a Writ of Habeas Corpus to the Honorable John P. Barnes, one of the Judges of this Court, who issued the Writ returnable before Your Honor on September 21, 1953.

"12. Inasmuch as the Relator was not in the custody of your Respondent nor within the jurisdiction of this court at the time the Writ of Habeas Corpus was issued, your Respondent filed a Return to the Writ on September 21st setting out these facts.

"13. On September 15, 1953, after Relator's arrival in New York, N.Y., his counsel presented a petition for a Writ of Habeas Corpus to District Judge Sylvester J. Ryan in the U.S. District Court for the Southern District of New York. On the same date, to wit, September 15, 1953, Judge Ryan issued an order to Edward J. Shaughnessy, District Director of Immigration and Naturalization at New York, directing that he show cause, if any, why a Writ of Habeas Corpus should not be issued. At the same time Judge Ryan entered an order staying the Relator's deportation pending hearing and disposition of the Relator's application for a Writ of Habeas Corpus. Answer to the Order to Show Cause was filed, and on September 22, 1953, hearing was had on the Petition and Answer before Judge Alexander Holtzoff, sitting by designation in the U.S. District Court for the Southern District of New York. After due hearing Judge Holtzoff found no justification for vacating the deportation order, no illegality and no irregularity in the deportation proceedings, and that on the undisputed facts the petitioner was deportable. * * *

Thus, although a formal challenge to the jurisdiction of the court is not made, the respondent alleges many of the facts contained in the original return, which did challenge jurisdiction. Therefore, it is necessary for the court to explore fully the jurisdictional question, in order to make ...


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