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Bufalino v. Holland

decided: April 1, 1960.


Author: Forman

Before GOODRICH, HASTIE and FORMAN, Circuit Judges.

FORMAN, Circuit Judge.

On December 16, 1957, the Immigration and Naturalization Service (hereinafter called the Service) ordered the appellant Russell Bufalino to show cause why he should not be deported (1) under 8 U.S.C.A. § 1251(a) (2)*fn1 on the ground that he re-entered the United States without inspection at Miami, Florida, on April 30, 1956 and at New York, New York, on May 5, 1956, after brief sojourns in Cuba and Bimini respectively, and (2) under 8 U.S.C.A. § 1251(a) (5)*fn2 in that he failed to register with the Attorney General of the United States in January 1956 and January 1957, as required by 8 U.S.C.A. § 1305.*fn3 It is represented that on each re-entry he stated that he was a citizen of the United States.

During his hearing before a Special Inquiry Officer a third charge was lodged against him under 8 U.S.C.A. § 1251(a) (1)*fn4 viz., that at the time of the above alleged illegal entries he was excludable because he did not possess a valid visa or other entry document.

The appellant contested only the second of these charges and asserted that his failure to register with the Attorney General in January 1956 and 1957 was "reasonably excusable and was not willful." His application for termination of the proceedings pursuant to 8 U.S.C.A. § 1251a or, alternatively, for voluntary departure and preexamination under 8 U.S.C.A. § 1254(e) and 8 C.F.R. 235a.1 with advance waiver of excludability under 8 U.S.C.A. § 1251(a) was denied by the Special Inquiry Officer who found the appellant deportable on all three charges.

An appeal was taken to the Board of Immigration Appeals which affirmed the findings and conclusions of the Special Inquiry Officer.*fn5 Review of the order for deportation and denial of relief was then sought before the District Court for the Eastern District of Pennsylvania which granted a motion for summary judgment in favor of the District Director of Immigration and Naturalization, the respondent in this proceeding, and dismissed the petition for review.

On appeal from that judgment the appellant contends as he did before the Special Inquiry Officer, that his failure to provide the Attorney General with his address and other information as required by 8 U.S.C.A. § 1305 "was reasonably excusable and was not willful", because until the inception of these proceedings he had always thought Pittston, Pennsylvania his birthplace and that therefore he is not deportable under 8 U.S.C.A. § 1251(a) (5).

The evidence introduced before the Special Inquiry Officer on this issue consisted, in part, of appellant's school records. The record of a New York City school for 1910 shows his birth date as September 27, 1903 and that he was removing to Pittston, Pennsylvania; the record for 1914 shows his age to be ten years but no birth date is given; for 1915 only 1903 and 12 years of age are stated; and for 1917, October 29, 1903 and 14 years are given. All these records show Italy as appellant's birthplace.

The Service also submitted a workmen's compensation report which was filed in 1944 by the president of a company by which appellant was then employed. The report shows the appellant's nationality as Italian. Although he did not make this report he testified to the close friendship which existed between the president of the company and himself.

Appellant's voting registration for 1947 in Pittsburgh, Pennsylvania, gives his birthplace as Buffalo, New York and the date as November 29, 1905. Appellant denies that he supplied this information. He testified that when he registered to vote in Buffalo in 1925 or 1927 he gave his birthplace as Pittston, Pennsylvania.

His applications for a marriage license dated August 9, 1928 and for membership in the Elks Lodge in 1929, showed Pittston as his birthplace. The dates shown are September 29, 1904 and October 29, 1904. His social security and selective service registrations show the same place of birth. Both give his birth date as October 29, 1903.

Appellant's birth certificate is part of this record. It shows that he was born in Montedoro, Italy on September 29, 1903. Its correctness has been conceded by the appellant.

Oral testimony as to the date and place of birth of the appellant was offered by his wife, brother and two sisters. Carmella (Caroline) Sciandra Bufalino, his wife, could only say that she had always heard that he was born in Pittston, Pennsylvania on October 29, 1903.

Each of his siblings testified to having been born in Montedoro, Italy. His brother Calogero, or Charles, gave his date of birth as October 15, 1898. He did not know where the appellant was born. He could only remember the appellant in Pittston, Pennsylvania.

A sister, Cristina Teresina Cammella, testified that she was born on December 4, 1900 and had always heard that the appellant was born in Pittston, Pennsylvania on November 29th. She failed to give any year of birth.

The other sister, Josephine Bufalino Cordaro, stated her birth date to be February 7, 1897, making her, she thought, seven years senior to the appellant. She testified that to the best of her knowledge he was born in Pittston, Pennsylvania in the fall of 1903 or 1904.

She also stated that she came to this country in 1902 or 1903 accompanied by her parents, sister and brother Calogero;*fn6 that her father died in 1904;*fn7 that thereafter her mother took all four children back to Italy; that about a year later [January 13, 1906] she returned to this country with her mother and two brothers, leaving her sister in Italy; that after her mother died in 1910 she and the appellant returned to Italy from which they and their sister returned to the United States in 1914. The witness also related that after her marriage in Buffalo, New York, on March 18, 1914, the appellant lived at her house while attending school. She stated that she did not enroll him and that he must have enrolled himself.

In essence this witness testified that when she was almost seven years of age she and her family came to this country without appellant; that shortly after her father's death, known to have occurred nine months later, the family including the appellant returned to Italy.

In testifying that the appellant did not accompany her on her first trip from Italy to the United States in 1903 but did make the return trip after the death of their father, this witness is saying that the appellant was born in Pittston. It is now undisputed that, in fact, the appellant was born on September 29, 1903 in Montedoro, Italy, and arrived in ...

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