Opinion
No. 216.
January 9, 1928.
Appeal from the District Court of the United States for the Southern District of New York.
Habeas corpus proceeding by the United States, on the relation of Elio Betty, against Benjamin M. Day, Commissioner of Immigration at the port of New York. From an order dismissing a writ of habeas corpus, issued to release relator from an order of deportation, relator appeals. Affirmed.
The sole issue was of the alien's citizenship, as to which the facts are as follows: He was born in Italy in October, 1903, came with his father to this country in 1904, and remained till 1910, when he went back to Italy. His father was naturalized in July, 1920, and died in November, 1925. The alien entered in January, 1926, then aged 22 years, as a temporary visitor, and, having outstayed his time, was arrested on January 31, 1927, and ordered deported on April 29th of that year.
De Pasquale Marcantonio, of New York City (Nicholas De Pasquale, of New York City, of counsel), for appellant.
Charles H. Tuttle, U.S. Atty., of New York City (Alvin McKinley Sylvester, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
It is settled law in these statutes that the residence of the father is not imputed to the child, like domicile. Kaplan v. Tod, 267 U.S. 228, 45 S. Ct. 257, 69 L. Ed. 585; U.S. ex rel. Patton v. Tod (C.C.A.) 297 F. 385. Therefore, when the alien entered, he was not already a citizen. This had also been held under Revised Statutes, § 2172, 8 USCA § 7, in Zartarian v. Billings, 204 U.S. 170, 27 S. Ct. 182, 51 L. Ed. 428, where indeed it was plainer, because an infant could scarcely have been said to "dwell" in the United States, even if the residence of his father was imputed to him. The question was indeed there left open whether an infant, who was abroad when his father was naturalized, could gain an imputed allegiance upon "dwelling" here subsequently, but that was set at rest by section 5 of the Act of 1907 (8 USCA § 8). Certainly, after Zartarian v. Billings, it could not be supposed that the allegiance changed while the infant was abroad, whatever be the explanation of Peck v. Young, 26 Wend. 613.
It is true that the alien in the case at bar had actually entered, as was not true in the cases cited. Whether his entry as a temporary visitor only could give him a "permanent residence," whatever his intent, we need not consider. It is enough that he was no longer an infant when he did enter. The proviso of section 5 of the act of 1907 reads that "the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States." The repetition of the phrase "such minor child" was entirely unnecessary, unless it implied the acquisition of residence during minority. Congress cannot have meant to allow an adult to evade the qualifications of citizenship merely because his father had been accepted. With infants it was different; the law in general imputed to them their parents' status. Moreover, their presence here during infancy may be thought to insure their assimilation with citizens generally, and to vouch for their qualifications. Whatever the reason, they were excepted, but only when they entered while incapable of personal naturalization.
We cannot see that the alien's residence here between 1904 and 1910 was relevant. Whatever it was, it was abandoned by 16 years' absence. To admit its competence would be to invite just those embarrassments which the statute was meant to avoid.
Order affirmed.