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Zimmerman v. Lehmann

January 7, 1965

ABRAHAM F. ZIMMERMAN, PLAINTIFF-APPELLANT,
v.
JOHN M. LEHMANN, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT-APPELLEE.



Author: Major

Before DUFFY, KILEY and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Plaintiff (sometimes called applicant) was born in Russia September 15, 1902. In September 1913, subsequent to the death of his parents, he and his two sisters came to the United States to join their uncle, Isadore Lande, at Fort Wayne, Indiana. At that time plaintiff was admitted for permanent residence, which status he has since continuously maintained, with the exception of three trips, subsequently discussed, which he made outside the country.

On November 8, 1955, a special inquiry officer of the Immigration and Naturalization Service found that plaintiff was an alien excludable from the United States under the provisions of Title 8 U.S.C.A. § 1182(a) (9), in that he had been convicted of a crime involving moral turpitude, and also under the provisions of Title 8 U.S.C.A. § 1182(a) (20), as an alien who attempted to enter the United States without a visa or other proper documentation. From the order of exclusion plaintiff appealed to the Board of Immigration Appeals which, on March 8, 1956, affirmed the order.

On March 23, 1956, plaintiff filed the instant action in the District Court, by which he sought relief from the exclusion order. That Court allowed defendant's motion for a summary judgment, from which plaintiff appeals.

The Board of Immigration Appeals in affirming the exclusion order stated:

"The applicant, an alien, is a 58-year old married male, a native and last a citizen of Russia, who has been a resident of the United States since 1913 when he was admitted for permanent residence; he has made several short visits outside the United States. In 1952, he made a visit to Canada and reentered in July 1952 on a claim of United States citizenship. On July 19, 1953, he went to Canada and upon his attempt to return on the following day, was held for a hearing but paroled into the United States to resume his residence with his citizen wife and children. The hearing was held; the applicant was found inadmissible on the grounds set forth above and excluded."

Of the numerous grounds urged for reversal, we think that presently we need be concerned with only two: (1) that plaintiff is a citizen of the United States, and (2) that his brief excursions outside the country's borders in 1952 and 1953 did not subject him to the consequences of "entry" on his return, under Sec. 101(a) (13), Title 8 U.S.C.A. § 1101(a) (13) of the Immigration and Nationality Act of 1952. If either of these contentions is valid, the order under attack cannot stand.

In our consideration of the record we are mindful of the statutory admonition, "* * * findings of fact, if supported by reasonable, substantial and probative evidence on the record considered as a whole, shall be conclusive." Title 8 U.S.C.A. § 1105a(6).

The special inquiry officer as a basis for his exclusion order found:

"1. That the applicant is an alien, a native and citizen of the USSR;

"2. That he entered the United States at New York, New York on September 29, 1913, at which time he was lawfully admitted for permanent residence;

"3. That on January 20, 1939 he was convicted by the United States District Court for the Northern District of Illinois of the offense of attempting to defeat and evade income taxes in violation of Section 145(b) of Title 26 of United States Code and Section 146(b) of the Revenue Act of 1928;

"4. That he entered the United States in July 1952 as a United States citizen at an unknown port in Maine on the border of Canada after ...


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