Anthony D'alessio, Petitioner-appellant, v. John M. Lehmann, District Director of Immigration and Naturalization Service, Defendant-appellee, 289 F.2d 317 (6th Cir. 1961)

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US Court of Appeals for the Sixth Circuit - 289 F.2d 317 (6th Cir. 1961) April 26, 1961

Frank E. Steel, Akron, Ohio, for appellant.

George W. Morrison, Asst. U. S. Atty., Cleveland, Ohio (Russell E. Ake, U. S. Atty., Cleveland, Ohio, on the brief), for appellee.

Before MARTIN, McALLISTER and WEICK, Circuit Judges.


This appeal is from an order of the District Court denying a petition to stay an order of deportation. The sole issue was whether appellant is a citizen of the United States. If an alien, he was subject to deportation under the provisions of Section 1251(a) (4), Title 8 U.S.C.A.

Appellant's grandfather was naturalized as a citizen of the United States on July 1, 1899. His father became a citizen of the United States under the provisions of R.S. 1993 at the time of his birth in Italy. Appellant's mother became a citizen at the time of her marriage on May 15, 1921, R.S. 1994. Appellant was born in Italy on June 10, 1922. At the time of appellant's birth, his father resided in Italy and did not come to the United States until September 6, 1922. Appellant entered this country with his mother on November 17, 1929. He was admitted for permanent residence as a non-quota immigrant. The mother was issued a United States passport in Italy. Appellant has resided in the United States continuously after his admittance. He registered for the draft in 1942 and was inducted into the Army in 1943. He received a dishonorable discharge from the Army in August 1946. The basis for his deportation as an alien was two felony convictions in Ohio.

District Judge McNamee gave careful consideration to the claims of the appellant. In a well reasoned opinion, supported by authority, he concluded that since appellant's father resided in Italy at the time of appellant's birth, the father's rights of citizenship did not descend to him and that appellant is an alien. Weedin v. Chin Bow, 1927, 274 U.S. 657, 47 S. Ct. 772, 71 L. Ed. 1284; United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890.

We are in agreement with the conclusions reached by Judge McNamee and his judgment is affirmed.