Maita v. Haff, 9568.

• Decision Date: 18 December 1940
• Docket Number: No. 9568.,9568.
• Citation: 116 F.2d 337
• Parties: MAITA v. HAFF, District Director of Immigration and Naturalization.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F.2d 337 (1940)

MAITA v. HAFF, District Director of Immigration and Naturalization.

No. 9568.

Circuit Court of Appeals, Ninth Circuit.

December 18, 1940.

Chauncey Tramutolo, of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan and Louis R. Mercado, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

Appeal in this case is from an order of the district court denying the alien appellant's application for a writ of habeas corpus. Appellant contends that the court erred in denying the application on the grounds that a fair hearing was not afforded him and that the evidence does not support the order of deportation.

Appellant, who had served two prior sentences for violation of the prohibition laws, on November 24, 1936, on a plea of guilty to a charge of engaging in the business of a distiller of alcohol with intent to defraud the United States of the tax on the spirits distilled, was sentenced to McNeil's Island penitentiary. This crime involves moral turpitude. While so imprisoned, appellant was examined, on January 17, 1937, by the immigration inspector. At that time appellant stated under oath that he first came to the United States in April, 1906, and that he had subsequently made a visit to Mexico "about four years ago" — that is, in 1933, within five years before his conviction, for a second time he entered the country.

Upon further questioning appellant stated that he had traveled "by auto in my sons' car." He was then asked:

"Q. That was four years ago? A. I think so, it was three or four months before the country went wet. It was in the summer."

Upon these statements of appellant a warrant of arrest was issued by the Secretary of Labor, appellant was arrested and proceedings for his deportation commenced under the provision of § 19 of the Immigration Act of February 5, 1917, 8 U.S.C.A. § 155, which reads: "* * * except as hereinafter provided, any alien who is hereafter after February 5, 1917 sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported."

A few days after the warrant of arrest was issued, an attorney for appellant at Washington, D. C., requested the Department to notify him when the record of the hearing was received so that he might appear before the Board of Review in appellant's behalf. Subsequently a hearing was held at the penitentiary. Appellant was informed of the purpose of the hearing, the warrant of arrest was read and explained to him, and he was advised of his right to counsel, which he declined. The charge in the warrant of arrest was again read to him and he was asked what he had to say concerning it. He described his family ties in this country, stated that the charge contained in the warrant was true, as were the statements he had previously made to the inspector, and that he had no witnesses that he wished to testify in his...