Sibray v. United States

• Decision Date: 20 February 1911
• Docket Number: 1,433,1,442. ( 64,1,441,70,71).
• Citation: 185 F. 401
• Parties: SIBRAY, Immigrant Inspector, v. UNITED STATES ex rel. KUPPLES. SAME v. UNITED STATES ex rel. STATLICHNITZER. SAME v. UNITED STATES ex rel. HUBER.
• Court: U.S. Court of Appeals — Third Circuit

185 F. 401

SIBRAY, Immigrant Inspector, v. UNITED STATES ex rel. KUPPLES.

SAME v. UNITED STATES ex rel. STATLICHNITZER. SAME v. UNITED STATES ex rel. HUBER.

Nos. 1,433, 1,441, 1,442. (Nos. 64, 70, 71).

United States Court of Appeals, Third Circuit.

February 20, 1911

Harry S. Lydick and R. M. Gibson, for plaintiff in error.

John L High, for defendants in error.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

GRAY Circuit Judge.

These are appeals from orders of the Circuit Court of the United States for the Western District of Pennsylvania, discharging the relators respectively, on habeas corpus proceedings. The petition for the writ in the case of Bertha Kupples, sets forth in substance that the relator is a native of Austria and a subject of the Emperor Franz Josef. That she emigrated to the United States on the 15th of March, 1901, and has resided in Pittsburgh, Pennsylvania, from 1901 to May 1 1909, at which time she returned to Austria and returned to the United States in September, 1909, and has since resided in Pittsburgh.

That in December, 1909, she was taken into custody on a warrant issued by the Secretary of Commerce and Labor, which warrant was executed by W. W. Sibray, Immigrant Inspector, attached to the Department of Commerce and Labor.

The reasons for her arrest, as stated in the warrant, are:

'That the said alien is a member of the excluded classes in that she entered the United States for the purpose of prostitution or other immoral purposes; and that she admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to her entry into the United States.'

That in January, 1910, testimony was taken by W. W. Sibray, in support of the warrant of arrest.

That in March, 1910, a Warrant of Deportation was issued by the Secretary of Commerce and Labor against her, authorizing W. W. Sibray to remove her from Pittsburgh to New York on the 4th day of April, 1910, preparatory to deporting her from the United States to Austria, and that by virtue of that warrant she was taken into custody by W. W. Sibray and is now in his custody and that she is unlawfully deprived of her liberty.

That the statements contained in the warrant of arrest are untrue and not founded on fact.

From the record, it appears that Bertha Kupples came from Austria to this country in 1901. She resided in Pittsburgh, Pa., from 1901 until May, 1909. She had never applied, so far as the record discloses, for naturalization papers. She continued all that time to be an alien. In May, 1909, she returned to Austria. In September, 1909, she came back to this country, landing at New York. When she landed, she was, as in 1901, an alien. She was therefore, under the Act of February 20, 1907 (chapter 1134, 34 Stat. 898 (U.S. Comp. St. Supp. 1909, p. 447)) subject to deportation at any time within three years from September, 1909, if she in any wise violated the act. Ex parte Hoffman, 179 F. 839, 103 C.C.A. 327. She did violate it. She came across the sea with a man as his wife, and occupied the same state room with him. She was not married to him. Her character is bad by her own admissions. Between 1901 and 1909, she ran and was employed in houses of prostitution in Pittsburgh. All this she admits.

But we cannot deal with this case on its merits, even if the action of the Secretary of Commerce and Labor were not final. It appears by the return of the inspector, to whom the writ of habeas corpus was directed by the court below, which return is neither traversed nor in any way denied, that he had not, at the time the said writ was sued out, or thereafter, the custody of the said relator. The language of his return is as follows:

'That he has not at the present time the body of said petitioner, Bertha Kupples, alias Goldstein, alias Glick, alias Gluck, in his custody and is therefore unable to produce her before the court as in the said writ commanded.'

The return then states the proceedings before the Secretary of Commerce and Labor, leading up to the arrest, by the order of the said Secretary, of the said relator, the subsequent hearing before the inspector, the submission of the evidence to the Department of Commerce and Labor, and the final order by the Secretary of that Department, for the deportation of the said relator. But the respondent makes no explanation whatever in his return, of his categorical statement that the petitioner for the writ was not in his custody. It appears, however, from the record, that in the warrant of arrest, directed to John J. S. Rodgers, Commissioner of Immigration, Philadelphia, Pa., or to any Immigrant Inspector in the service of the United States, issued by the Secretary of Commerce and Labor, there is the following instruction:

'Pending disposition of this case, the alien may be released from custody, upon furnishing a bond in the sum of one thousand dollars.'

The record does not disclose the fact that such bond was given, but the learned judge of the court below, in his opinion, states that 'the answer also sets out that the alien is out on bail. ' If such bail bond was given, it was presumably under the authority of section 20 of the Immigration Act of February 20, 1907, as follows:

'Provided, that pending the final disposal of the case of any alien so taken into custody he may be released under a bond in the penalty of not less than five hundred dollars with security approved by the Secretary of Commerce and Labor conditioned that such

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