The opinion of the court was delivered by: GOURLEY
This is a habeas corpus proceeding which was instituted after the issuance of a deportation order against C. N. McLeod. A remand was issued by the United States Court of Appeals for the Third Circuit reversing the order of my late associate, Judge Owen M. Burns, issued on April 14, 1952, wherein petitioner's writ of habeas corpus was discharged. U.S. ex rel. McLeod v. Garfinkel, 3 Cir., 202 F.2d 392.
The remand is premised upon the fact that Judge Burns had given some weight in concluding that Clifford N. McLeod's father was not an American citizen to evidence elicited at a hearing before the naturalization examiner which was neither admitted as an exhibit nor made part of the record.
Pursuant to the remand, this court not only developed the record by permitting the admission in evidence of the record adduced before the Naturalization Commissioner, but in addition thereto, provided an extended hearing wherein petitioner was afforded opportunity to present any and all evidence which might tend to support petitioner's thesis that his father was a citizen, by birth, of Alabama.
The evidence submitted has proved totally unconvincing. Despite the testimony of C. N. McLeod before the naturalization examiner to the effect that his father's name was James Edward McLeod and that he had died in Jamaica, British West Indies, he has reversed his position and seeks to identify his father with an 'Abird' McLeod, which latter name was entered in a book evidencing birth in the state of Alabama. The connection between C. N. McLeod's father and the said 'Abird' McLeod is completely unestablished and unsupported. The testimony and inferences to be drawn therefrom point to the contrary, and no fragment of evidence exists to give any degree of substance to the contention advanced.
Upon review of the exhibits, the record of hearings before Judge Owen M. Burns, and testimony presented on hearing before this member of the court, I enter the following findings of fact and conclusions of law.
1. Elizabeth B. McLeod, petitioner, is the wife of Clifford N. McLeod.
2. Clifford N. McLeod was born in Jamaica, British West Indies, on February 2, 1901.
3. In the Spring of 1928, he entered the United States at New York City, after his discharge as a seaman. At that time he did not have a seaman's card or an unexpired consular immigration visa and he did not claim to be a citizen of the United States.
4. He continued to reside in the United States without again leaving the country.
5. On April 21, 1933, at New York City, New York he was convicted on an indictment charging him with petty larceny. He received a suspended sentence and was placed on probation for three years.
6. On January 23, 1941, he was ordered deported for the reasons that:
(a) he had remained in the United States for a longer time ...