United States ex rel. Palermo v. Tod

296 F. 345 | 2d Cir. | 1924

MAYER, Circuit Judge

(after stating the facts as above). [1] We, of course, do not review the weight of evidence, nor do we balance or resolve conflicting testimony on appeals from orders sustaining or dismissing writs of habeas corpus in immigration cases.

The relator was excluded on the ground (1) that he had not shown that he was native-born, and thus was barred by the then filled quota; and (2) on the ground that he had committed perjury.

1. In actions or suits, it is fundamental that one may testify to the date and place of birth even though that is hearsay. Registers and certificates, kept or issued by a clergyman or other proper officer, are competent evidence of the fact of birth or baptism, as the case may be, and baptismal registers or certificates are admissible to show the fact and date of baptism and the fact that the child was bom before the baptism. 17 Cyc. 405, and cases cited.

In a proceeding of the character at bar, where/Strict rules of evidence are not applied, the certificate of baptism should have received at least the same consideration which would have been given to it by a court. The two hearings before the immigration authorities showed, first, that relator had the certificate in his possession; and, secondly, that the dates therein set forth were confirmed by the records of the Cathedral in New Orleans. The relator’s age checked up accurately with the dates set forth in the baptismal certificate, and nowhere in this record was there any suggestion that the baptismal certificate in possession of relator, which according to his testimony he had brought with him from Italy, was other than genuine. •

There was full accord on the part of the witnesses as to the names of relator’s parents, and discrepancies as ‘to minor details were so trifling and so self-explanatory on the record that they must be discarded, as matter of law. Thus, when first examined on Tanuary 23d, relator was asked through, an interpreter, “Have you any brothers or sisters anywhere?” He answered, “No.” His brother, however, was present and then testified, and, when the relator was recalled, he was asked who was the witness who appeared for him. His answer was that it was his brother Tomasso. It is perfectly plain that, if the interpreter translated correctly, relator must have misunderstood him, or may have supposed that the question was directed to ascertaining whether there was any other brother in Italy. There was a difference in the testimony between the two brothers as to whether there were any other brothers, or sisters. Relator testified there were none, while Tomasso testified that he had two more brothers, one 34 .years old and one 44 years old. It is apparent from this record that relator, who was taken to Italy when he was but 8 years old, and there abandoned, or, at least, left in the charge of a guardian, might well have had no knowledge of the existence of any other brothers. No effort was made to' elicit the facts in such clear fashion as the circumstances called for.

The case might have been quite different, in the absence of the-baptismal certificate. We think that certificate, the genuine character of which remained unassailed, was so controlling that, as matter of law, the board upon this record had no basis on which to determine that the relator was not born in New Orleans and there’baptized at the date set forth in the certificate. In addition, the testimony of Salerno is definite as to the place and date of birth of relator, and there is nothing in this record to contradict this testimony. It is claimed that Salerno testified that relator’s name was Carmelo; but he merely stated, if “I remember right,” it was Carmelo, and then that he was not sure of the first name.

2. We have great difficulty in undérstanding how the board found that relator was guilty of perjury. The board failed to specify in what respect he was thus guilty, and we must assume that this finding was based upon the proposition that, because one brothér said that there were two older brothers, and relator, as we have indicated, had no knowledge on the subject, and therefore said he had no other brother,. therefore the board, without any other evidence, made this serious finding against relator. Relator, who made clear that he had not seen or heard of his parents for many j-ears, and whose parents left him to go to America, stated, “They must be in America, but I have not received news for a long while.” The brother testified that the parents were in New Orleans 30 years before and that they were now in Palermo, Italy. But a reading of the testimony of each brother shows plainly that these were merely conclusions from the last knowledge or information each had as to the whereabouts of the parents many years before. When relator was recalled, he was told that his brother had testified that his parents were in Italy, and he had testified that his parents were in the United States.

As matter of fact, he had not so testified. He had merely stated, “They must bg in America,” and then, when he was thus interrogated by the immigration official, he stated he was positive that his mother and father were in America, when it was perfectly plain that his answer was in respect of an argumentative question, and represented a perfectly natural conclusion from such information as he had had many years before.

Passing by all the necessary elements of the crime of perj my here absent, there was not the slightest ground upon which to make so grave a finding, and we so state, in order that, hereafter, this relator may not be embarrassed by a notation of that character in the records of the immigration authorities.

The order below is reversed.