No. 241.

6 F.2d 957 (1925)

UNITED STATES ex rel. SCIMECA v. HUSBAND, Commissioner, et al.

Circuit Court of Appeals, Second Circuit.

April 6, 1925.

Attorney(s) appearing for the Case

William Hayward, U. S. Atty., of New York City (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Michael Stein, of New York City, for appellee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The lower court was entitled and required to pass upon the legality of what the Executive Department had done, and that was also the limit of its duty. It was error to hold what was a new hearing on new evidence as to certain of the facts. We passed on this point in Bieloszyka's Case, 3 F.2d 551 (opinion filed November 3, 1924). We do not, therefore, consider the affidavits filed in the District Court.

Undoubtedly the Department of Labor held that Scimeca was an alien; but it did not hold that there was not a child baptized as Vincenzo Scimeca and born in New York City in May, 1900. We have no doubt such child was born, as we regard the baptismal certificate as most persuasive evidence. This point was sufficiently considered in the Palermo Case, supra. The department, however, did not believe that the child born in New York was the man, who, 24 years later, demanded to enter the United States, and this matter of identity is a wholly different question from that of birth.

No one identified the relator, and the only evidence of a documentary nature produced or apparently producible was his passport. On its face that document was either a total fraud, or was in a sense being used fraudulently. It was a year old; it was never intended for a journey to the United States; the visa at Palermo was incomplete; and the relator gave no explanation at all as to why it was so old, and how its patent errors had arisen.

This case did not and does not turn upon the evidential value of the baptismal certificate. Let full force be given to it, and the question remains whether the man who knocked at the door of the country and demanded admission was or was not the man born in that country some 25 years ago. That was a question of fact, and the only evidence upon it was the oath of the relator and the circumstances surrounding his arrival in this country.

The case was plainly within the jurisdiction of the board of special inquiry (United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L. Ed. 1040), and the cases are very numerous wherein this court has emphasized the finality of a finding of fact made by such a board acting within its jurisdiction. One of the latest is that of Soo Hoo Hong, 290 F. 689, which is no more emphatic than that of Tulsidas v. Insular Collector, 262 U.S. 258, 43 S.Ct. 586, 67 L. Ed. 969. In other words, in view of the circumstances of Scimeca's coming, the board was not bound to believe his statements, and that refusal, based upon evidence, is a finding of fact binding upon us.

While the board did not mention it, and the matter has not been argued at this bar, we point out, as germane to the admission or rejection of demands like this, that while a child born in this country, even of foreign parents, is born a citizen of the United States, such citizenship or any citizenship may be laid aside. The American doctrine is that the right of expatriation is inherent; it is expressed in a statute. R. S. § 1999 (Comp. St. § 3955). The question has often been passed on by the Department of State, and the result of our diplomatic holdings was summed up by Mr. Bayard, when Secretary, in 1888, by saying:

"It has been repeatedly held by us that, when a person born in the United States arrives at 21 in a foreign country, the mode of expressing his election to be a citizen of the United States is by promptly returning to the United States. * * * That is what is called double allegiance, and by the law of nations the nationality of such persons is to be determined by their own election of nationality at their maturity, which election is evidenced by placing themselves in the country they elect." Moore, International Digest, vol. 3, p. 548.

That the child born in New York in 1900 of Italian parents was regarded in Italy as an Italian subject is entirely plain. Id. p. 608 et seq. Let it be admitted that mere residence in a country other than the United States has no effect upon a citizenship acquired by birth (United States v. Howe [D. C.] 231 F. 546); yet whether one who, at the age of 21, had lived for 17 years in Italy with his Italian parents, who (as appears in this case) was unable to speak the English language, who served in the Italian army and presumably swore allegiance to the land that claimed his services (Ex parte Griffin [D. C.] 237 F. 445), and who, when he desired to go abroad, took out a passport as an Italian subject bound for Buenos Aires, had not, by this long series of acts, given incontrovertible evidence of an intention to remain an Italian subject, may very well be argued.

We do not ground decision on this point. It is not necessary, and the record was not made with it in mind; but it is enough to suggest matter deserving of thought.

Order reversed.


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