Lazzaro v. Weedin

GILBERT, Circuit Judge.

Domenico Lazzaro and Bambino Lazzaro, his wife, were ordered to be deported to Italy, their native country. It is admitted that there was just cause for deportation. The only question presented to this court on the appeal is whether or not it was error to order that the deportation be to Italy, rather than to Canada.

Domenico Lazzaro came from Italy to the United States in 1904. Pour months later he went to Canada, where he resided three years, and thence he returned to the United States, where he has since continuously lived. On September 9, 1918, he married Bambino, a native and subject of Italy, who came in 1900 from Italy, and who has since continuously resided in the United States.

The statute under which deportation was ordered was not Immigration Act Feb. 20, 1907, c. 1134 (34 Stat. 898), relied upon by the appellant, but Act Feb. 5, 1917 (39 Stats. 885 [Comp. St. 1918, Comp, St. Ann. Supp. 1919, § 4289¼k]), section 20 of which vested in the Secretary of Labor discretion to order the return of these aliens either to Italy or to Canada. In directing that they be returned to Italy there was no abuse of discretion. It does not follow, from the fact that Domenico Lazzaro lived three years in Canada, that he acquired a domicile which entitled him to be deported to the Dominion of Canada.

The case of Ex parte Guest (D. C.) 287 P. 884, is not in conflict with this view. In that case a man and his wife were ordered deported to England and on habeas corpus the court held that they were not subject to deportation. Incidentally the court intimated that, if in fact they were subject to deportation, the order should have been that they be deported to Canada, and not to England. This was said in view of evidence that, when leaving England, the petitioners had decided to settle in Canada, where they remained three months before entering the United States. The court observed: “If it were found that these aliens are properly subject to deportation, it would be necessary to consider in greater detail the facts concerning their residence in Canada, the question of domicile, and the contention as to the place of deportation.”

In the case at bar there is no evidence whatever that Domenico Lazzaro went to Canada for the purpose of settling or obtaining a domicile there; and in view of the heinous nature of the offense for which he and his wife are ordered deported, it may well be doubted whether they would be received in Canada, in pursuance of an order of deportation from the United States.

We find no error, and the judgment is affirmed.