Opposition — Agosto v. Immigration & Naturalization Service

No. 76-1410

In the Supreme Court of the United States

Octoper Term, 1977

Jose V. AGOSTO, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

Wape H. McCree, IX.

Solicitor General.

BENJAMIN R. CivILeTTi,

Assistant Attorney General,

Jerome M. Ftir.

Joun H. Burnes, IX.

Attorneys,

Department of Justice.

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcToBer Term, 1977

No. 76-1410

Joseru V. AGOSTO, PETITIONER

*.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 549 F. 2d 806.

JURISDICTION

The judgment of the court of appeals was entered on

January 24, 1977. A petition for rehearing was denied on

March 23, 1977. The petition for a writ of certiorari was

filed on April 12, 1977 (Pet. App. iti). The jurisdiction of

this Court is invoked under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether a genuine issue of material fact exists as to

petitioner's nationality that would entitle him to a de novo

hearing in the district court on this issue prior to deporta-

tion.

(1)

2

STATEMENT

1. In 1967, deportation proceedings were instituted

charging petitioner with entering the United States without

presenting himself for inspection as an alien, in violation of

Section 241(a\(2) of the Immigration and Nationality Act.

66 Stat. 204, as amended, 8 U.S.C. 1251(a)(2). At the

deportation hearing, petitioner claimed that he was a United

States citizen (Pet. 3-4). Petitioner did not present any

documentary evidence in support of his claim (Pet. App.

vii). Instead, he relied upon the testimony of three witnesses,

Mr. and Mrs. Pianetti, who had taken him from a foundling

home and raised him, and Carmen Ripolino, who claimed

to be his half brother (Pet. 4). These witnesses testified in

support of petitioner's contention that he was Joseph

Agosto, who was born in Cleveland, Ohio, in 1921.

On the other hand, the government's evidence estab-

lished that petitioner was a native and citizen of Italy,

who was born in Agrigento, Italy, on or about July 16,

1927. The government produced a copy of an entry in

the Registry of Births indicating that respondent was

born on July 17, 1927, to a woman who did not wish to be

named, and was sent to a foundling home in the custody

of a person who declared his birth before the registrar

(Pet. App. vi). Documents also show that he was placed

in an orphanage and baptized at the age of approximately

two days (ibid.), and that a month later he was entrusted

to the care of a couple, Pietro and Crocifissa Pianetti,

and was later “affiliated” by them—that is, a court order

was obtained allowing him to assume their surname

(ibid.).

In 1947, petitioner was convicted in Italy of impersonat-

ing a police officer and judge in connection with a scheme

concerning forged ration coupons, and was sentenced to

imprisonment (S.R. 121-122). Petitioner thereafter ob-

tained an Italian passport on which he falsely represented

2

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himself to be an “industrial attorney” and left for Canada

under the name of Vincent Pianetti, leaving a wife and

children in Italy (S.R. 106-107, 191).

Around 1950, petitioner entered the United States from

Mexico after showing a birth certificate identifying him

as “Joseph V. Agosto,” born in Cleveland, Ohio, in 1921.

(S. R. 62, 69, 108, 113, 611). He subsequently obtained

other forms of identification, including several United

States passports (S.R. 69, 113). Since his arrival, peti-

tioner has used the name “Joseph V. Agosto” in all of

his affairs in this country, including two marriages and

a divorce. He was also convicted under that name of

assisting in the falsification of papers in support of loan

applications to the Federal Housing Administration, in

violation of 18 U.S.C. 1010 (S. R. 614-615).

Petitioner conceded that the Italian records relate to

him, but asserted that they were created in an eitort to

conceal the fact that his mother had given birth to him

out of wedlock (Pet. App. vi).

2. On the basis of these facts, the Immigration Judge

found petitioner deportable (S.R. 593-627). After care-

fully reviewing the evidence, the judge concluded that it

overwhelmingly refuted the possibility that petitioner

was Joseph Agosto, born in Cleveland, Ohio (S.R. 606-

609). The Board of Immigration Appeals affirmed the

‘Petitioner claimed that his uncle had sent him the birth certi-

ficate in 1948, but official records show that certificate was not

sued until December 31, 1951 (S. R. 607). This was several weeks

after a Joseph Agosto, who met the description on the birth certifi-

cate, died in petitioner's home town of Licata. Italy (S. R. 604).

"The Immigration Judge found petitioner deportable on the ad-

ditional ground that he was an alien who had been convicted of a

crime involving moral turpitude (S.R. 613) and denied petitioner

various forms of discretionary relief from deportation (S.R. 619-624).

Petitioner does not challenge those rulings here.

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order of deportation, finding that the government had

proved petitioner's alienage by “clear, convincing, and

unequivocal” evidence (Pet, App. xi).

The court of appeals, with one judge dissenting, al-

firmed the decision of the Board of Immigration Appeals

and denied petitioner's request, under 8 U.S.C. Sata)

(5), to transfer the proceeding to district court for a de

novo hearing on his claim of citizenship. It held that the

evidence did not “disclose a colorable claim to United

States nationality * * *" (Pet. App. ii).

ARGUMENT

Pursuant to 8 U.S.C. Sagas), if a person seeking

review of an order of deportation, who claims to be a

national of the United States, “makes a showing that his

claim is not frivolous,” the court of appeals must, “where

a genuine issue of material fact as to the petitioner's

nationality is presented,” transfer the proceedings to a

United States District Court for a hearing de novo of

the nationality claim, See also Kessler v Strecker, 307

U.S. 22, 35; Ne Fung Ho v. White, 259 U.S. 276.

Petitioner contends that under this provision the court

of appeals should have transferred his case to the dis-

trict court. He argues that he has presented evidence

that, if believed, is sufficient to establish his American

citizenship, and that the court of appeals upheld the

deportation order only by improperly weighing and dis-

counting the credibility of his witnesses. He also alleges

that the decision below conflicts with those of other

circuits, by making the Ninth Circuit “the only court

which has denied transfer under the statute where the

administrative decision turned on the question of the

credibility of petitioner's witnesses” (Pet, 8-9).

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Petitioner's fundamental error is that this case does

not urn] on * * the credibility of petitioner's witnes-

ses.” While there was dispute over the credibility of the

Pianettis and of Carmen Ripolino, and while the Board

of Immigration Appeals noted that the immigration judge

had found these witnesses not to be credible (Pet. App.

Vill), petitioner has not established a substantial, non-

frivolous claim of American citizenship even if the testi-

mony of his witnesses were credited. See Rassanv vy. /m-

migration and Naturalization Service, 377 f 2d 971, 972-

973(C.A. 7). As the Board of Immigration Appeals noted,

even accepting arguendo petitioner's evidence, in order

to conclude that petitioner is a United States citizen, it

would be necessary to believe (Pet. App. ix):

1) that the respondent's natural father was Salvatore

Agosto (Tr. pp. 305, 340); (2) that Salvatore Agosto

fathered a child born in 1921 in Cleveland, Ohio,

whose name was Joseph, or Giuseppe, Agosto (Es,

2 & 3), but that this child was not the respondent;

(3) that the respondent's mother gave birth to a son

in Akron, Ohio, in August of 1923 (Tr. p. 392), and

that the father of this child was Giacomo Ripolino

and not the father of the respondent (Tr. p. 395),

(4) that the respondent's mother next gave birth to

the respondent in August of 1924, one year later, in

Cleveland, Ohio (Tr. p. 514), (5) that she knew the

father of the respondent to be Salvatore Agosto

(see Tr. 305, 340) and named the respondent Joseph

or Joe Agosto, the same name that was given to an

earlier child of the respondent's father (Tr. p. 482);

(6) that the respondent's mother again began living

in the same household as Giacomo Ripolino, and

gave birth to a third son in Akron, Ohio, another

year later in September of 1925 (Exs. 60 & 61; Tr. p.

6

399); (7) that the respondent's mother had him bap-

tized in the United States (Tr. pp. 355-57), (8) that

the respondent, who can afford to send an investigator

to Italy to search records (Tr. pp. 425-26), has not

been able to produce a certificate of his United States

baptism, even though he ostensibly knows the name

under which he would have been baptized and the

general vicinity of Ohio in which the baptism likely

would have occurred.

On these facts, the court of appeals properly concluded

that “The evidence presented to the immigration judge

does not disclose a colorable claim to United States

nationality * * *" (Pet. App. ii). The veracity of peti-

tioner's witnesses was not a material fact relating to

petitioner's claim that he is a United States citizen. Since

the court of appeals did not evaluate “the credibility of

petitioner's witnesses”, its decision does not conflict with

those of other courts of appeals, which have held that an is-

sue of the credibility of a witness that is critical to a claim

of American citizenship must be determined de novo by

by the district court. See, eg. Pignatello \. Attorney

General, 350 F 2d 719, 723-724 (C.A. 2). The court of

appeals correctly refused to transfer this case to the

disirict court for a de novo hearing.

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CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Weit H McCree, Jr.,

Solicitor General.

BENJAMIN R Cent.

Assistant Attorney General.

Jerome M Fert,

Joun H. Burnes, Jr.,

Attorneys.

Avoust 1977,

D