Bridges v. Wixon

• Decision Date: 27 September 1944
• Docket Number: No. 10450.,10450.
• Citation: 144 F.2d 927
• Parties: BRIDGES v. WIXON, District Director, Immigration and Naturalization Service, Department of Justice.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F.2d 927 (1944)

BRIDGES v. WIXON, District Director, Immigration and Naturalization Service, Department of Justice.

No. 10450.

Circuit Court of Appeals, Ninth Circuit.

June 26, 1944.

Rehearing Denied September 27, 1944.

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Lee Pressman, Congress of Industrial Organizations, of Washington, D. C., Carol King, of New York City, and Gladstein, Grossman, Sawyer & Edises, Richard Gladstein, and Aubrey Grossman, all of San Francisco, Cal., for appellant.

Tom C. Clark, Asst. Atty. Gen., Edward G. Jennings, Sp. Asst. to the Atty. Gen., and John Ford Baecher, Atty., Department of Justice, of Washington, D. C., and Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., for appellee.

Osmond K. Fraenkel and Benedict Wolf, both of New York City, for National Lawyers Guild, as amicus curiae.

Before WILBUR, GARRECHT, MATHEWS, STEPHENS, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

The appellant, in custody of the respondent under a warrant for deportation, sought release by habeas corpus in the District Court for the Northern District of California. That court issued an order to show cause and, upon the showing made by the return and traverse, denied the petition and remanded the petitioner to the custody of the respondent. From that order the petitioner appeals to this court. The appellant attached to his petition for a writ a transcript of the entire proceedings before the Inspector who ordered deportation, the record of petitioner's appeal before the Appeal Board set up by the Attorney General, which recommended against deportation, and the final order of the Attorney General upon a review of the Appeal Board's decision ordering the deportation of the petitioner.

While the power of the District Court and of this court in such an application is well settled, in view of the wide range of the argument it is well to state again the limits of the court's authority in the premises.

The statute providing for deportation of undesirable aliens by the Attorney General provides that:

"In every case where any person is ordered deported from the United States under the provisions of this chapter, or of any law or treaty, the decision of the Attorney General shall be final." 8 U.S.C.A. § 155(a).

Thus the court has no power derived from Congress to review or to inquire into the truth of the charge against the alien, nor into the manner in which the decision has been reached by the Attorney General. The right of the court to consider the validity of the order of deportation at all is derived directly from the Fifth Amendment to the Constitution of the United States, which prohibits a deprivation of liberty or property without due process of law.

The Supreme Court, in United States v. Ju Toy, 198 U.S. 253, 255, 25 S. Ct. 644, 49 L.Ed. 1040, stated the rule controlling the court in such a case as follows:

"Where the law has confided to a special tribunal authority to hear and determine matters arising in the course of its duties, a decision by it within the scope of its authority as to questions of fact is conclusive against collateral attack. Where the jurisdiction depends upon a question of fact which is the very gist of the controversy, the determination of that is generally final. citing cases

"Where the decision of questions of fact is committed by Congress to the head of a Department, his decision thereon is conclusive; * * *."

This last statement is subject only to a court review upon the question of due process under the Fifth Amendment to the Constitution.

In Zakonaite v. Wolf, 226 U.S. 272, 275, 33 S.Ct. 31, 32, 57 L.Ed. 218, it is said, (Mr. Justice Pitney writing the opinion):

"It is entirely settled that the authority of Congress to prohibit aliens from coming within the United States, and to regulate their coming, includes authority to impose conditions upon the performance of which the continued liberty of the alien to reside within the bounds of this country may be made to depend; that a proceeding to enforce such regulations is not a criminal prosecution within the meaning of the 5th and 6th Amendments; that such an inquiry may be properly devolved upon an executive department or subordinate officials thereof, and that the findings of fact reached by such officials, after a fair though summary hearing, may constitutionally be made conclusive, as they are made by the provisions of the act in question."

In Tisi v. Tod, 264 U.S. 131, 133, 44 S.Ct. 260, 68 L.Ed. 590, it is said (Mr. Justice Brandeis writing the opinion):

"We do not discuss the evidence, because the correctness of the judgment of the lower court is not to be determined by enquiring whether the conclusion drawn by the Secretary of Labor from the evidence was correct, or by deciding whether the evidence was such that, if introduced in a court of law, it would be held legally sufficient to prove the fact found.

"The denial of a fair hearing is not established by proving merely that the decision was wrong. Chin Yow v. United States, 208 U.S. 8, 13, 28 S.Ct. 201, 52 L. Ed. 369. This is equally true whether the error consists in deciding wrongly that evidence introduced constituted legal evidence of the fact or in drawing a wrong inference from the evidence. The error of an administrative tribunal may, of course, be so flagrant as to convince a court that the hearing had was not a fair one. Compare United States ex rel. Bilokumsky v. Tod,¹ 263 U.S. 149, 44 S.Ct. 54, 68 L. Ed. 221; Kwock Jan Fat v. White,² 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; Tang Tun v. Edsell, 223 U.S. 673, 32 S.Ct. 359, 56 L.Ed. 606. * * * Under these circumstances, mere error, even if it consists in finding an essential fact without adequate supporting evidence, is not a denial of due process of law."

In United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 110, 47 S.Ct. 302, 305, 71 L.Ed. 560 (Mr. Justice Stone, now Chief Justice, writing the opinion) it is said:

"But we find it unnecessary to consider this question a question of burden of proof, as we think that the record taken as a whole and without the aid of any statutory presumption presents some evidence supporting the deportation order."

We have consistently followed the decisions of the Supreme Court in this circuit upon this subject. In Whitty v. Weedin, 9 Cir., 68 F.2d 127, 130, in considering an appeal from a decision of the trial court denying release by habeas corpus where the defendant was held under a deportation warrant, it is said:

"The point to be determined by us is whether the appellant had a fair hearing, and, if it appears from the record that he had, we are not at liberty to disturb the decision of the lower court. The truth of the facts is for the determination of the immigration tribunals, and where its procedure and decision are not arbitrary or unreasonable, and the alien has had a fair hearing, the result must be accepted."

This decision was followed and quoted in a similar case: Monji Uyemura v. Carr, 9 Cir., 99 F.2d 729. See also, our decision in Chin Share Nging v. Nagle, 9 Cir., 27 F.2d 848; Mui Sam Hun v. United States, 9 Cir., 78 F.2d 612.

The Supreme Court applied the rule in the late case of Costanzo v. Tillinghast, 287 U.S. 341, 342, 53 S.Ct. 152, 153, 77 L.Ed. 350, wherein it is said:

"The Circuit Court of Appeals properly negatived the asserted absence of any evidence to support the action of the Secretary of Labor, and therefore refused, as we do, to review that officer's findings." citing cases

Under the Fifth Amendment, as these authorities clearly show, deprivation of liberty in the execution of the deportation statute without due process of law is not countenanced and victims of such practice may come to the courts for relief by filing petitions for the issuance of the writ of habeas corpus. The courts can act in no other manner.

The courts have uniformly held that Congress cannot authorize a deprivation of liberty without due process of law as provided in the Constitution by the device of making the fact findings of an administrative board conclusive on the courts. That is to say, findings made without supporting evidence or without a hearing before the administrative body or officer are held by the courts to be void. Hence, on this purely collateral proceeding in habeas corpus, the validity of the order of the Attorney General for detention for deportation may be questioned but only to the extent necessary to determine whether there has been a denial of due process by the Attorney General. The parties recognize the rule, but their argument of facts in some instance extends far beyond our power of examination. In effect they ask us to do what is condemned in Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 54 S.Ct. 315, 78 L.Ed. 655, "pay lip service" to the statute.

The petitioner claims that the Attorney General applied an erroneous rule as to the Government's burden of proof and argues that the Government should establish its case beyond a reasonable doubt and that we are to judge whether or not this burden has been sustained. This whole contention is erroneous as the authorities hereinbefore cited indisputably show. The case of Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, cited by appellant does not support this view and that decision has no application here. In that case the Supreme Court was reviewing a decision by a District Court and a Circuit Court of Appeals in equity revoking an order or decree admitting Schneiderman to citizenship. The rule there stated is for the guidance of federal courts exercising equity jurisdiction. The rule there applied by the courts is not applicable to a hearing on habeas corpus to determine whether or not the petitioner has had a fair hearing where the rule is that findings of the administrative body are conclusive if supported by...