United States v. Curran

• Citation: 15 F.2d 127
• Parties: UNITED STATES ex rel. VAJTAUER v. CURRAN, Commissioner of Immigration.
• Decision Date: 20 April 1925
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

15 F.2d 127 (1925)

UNITED STATES ex rel. VAJTAUER v. CURRAN, Commissioner of Immigration.^*

District Court, S. D. New York.

April 20, 1925.

Isaac Shorr, of New York City (Walter H. Pollak, of New York City, of counsel), for relator.

Emory R. Buckner, U. S. Atty., of New York City (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for respondent.

AUGUSTUS N. HAND, District Judge.

The relator, an alien and citizen of CzechoSlovakia, arrived at the port of New York, on the steamship Minnekahda on December 1, 1923. Upon an anonymous complaint, signed "A Union Man," to the effect that he "is inciting the people against the government and convincing them that their only hope is in the communist workers' party of America, who will force the people from the capitalist oppression," a warrant was issued on April 4, 1924, by the Assistant Secretary of Labor, that the relator be taken into custody and granted a hearing to show cause why he should not be deported.

After a hearing, which began on May 14, 1924, and was concluded on August 27, 1924, a warrant of deportation was issued by the Acting Secretary of Labor, on the ground that the relator (1) believed in and advised the overthrow of the government of the United States; (2) wrote, published, or had in his possession for circulation written or printed matter advocating opposition to all organized government; (3) wrote, published, or had in his possession for circulation written or printed matter advocating the overthrow by force and violence of the government of the United States.

Before the second hearing the new Immigration Law went into effect, section 23 (Comp. St. § 4289¾kk) of which provides as follows:

"Whenever any alien attempts to enter the United States the burden of proof shall be upon such alien to establish that he is not subject to exclusion under any provision of the immigration laws; and in any deportation proceeding against any alien the burden of proof shall be upon such alien to show that he entered the United States lawfully, and the time, place and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immigration visa, if any, or of other documents concerning such entry, in the custody of the Department of Labor."

The foregoing section created a new rule of procedure in immigration cases. I cannot see that the application of it to any pending proceeding was illegal. The hearing held May 14, 1924, was not closed, and when it was continued on August 27 the inspector asked the attorney for the relator:

"Q. Do you desire to place the alien...