Lopez v. Howe

• Citation: 259 F. 401
• Decision Date: 14 May 1919
• Docket Number: 216.
• Parties: LOPEZ v. HOWE, Immigration Com'r.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

259 F. 401

LOPEZ v. HOWE, Immigration Com'r.

No. 216.

United States Court of Appeals, Second Circuit.

May 14, 1919

Charles Recht, of New York City (Sidney R. Fleisher, of New York City, of counsel), for appellant.

Francis G. Caffey, U.S. Atty., of New York City (David V. Cahill Asst. U.S. Atty., of New York City, of counsel), for respondent.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The relator has been ordered deported from this country to Spain and is in custody of the Commissioner of Immigration at the port of New York. The relator was taken into custody under a warrant which charged him with being in the United States in violation of the Immigration Act of February 5, 1917, c. 29 39 Stat. 874. Section 3 of that act (Comp. St. 1918, Sec 4289 1/4b) provides that certain enumerated classes of aliens shall be excluded from admission into the United States. Among the classes so excluded are anarchists, and the provision referring to them may be found in the margin. ^[1] And section 19 of the Act (Comp. St. 1918, Sec. 4289 1/4jj) provides for the arrest and deportation within 5 years after entry of any alien who at the time of entry was a member of one or more of the classes excluded by law. It then provides for the deportation of classes of aliens therein mentioned, irrespective of the time of their entry into the United States, and among those so specified is the following

'Any alien who at any time after entry shall be found advocating or teaching the unlawful destruction of property, or advocating or teaching anarchy, or the overthrow by force or violence of the government of the United States or of all forms of law or the assassination of public officials.'

The warrant charged that the relator had been--

'found advocating or teaching anarchy, or the overthrow by force or violence of the government of the United States or of all forms of law, or the assassination of public officials; that he was at the time of his entry into the United States a member or affiliated with an organization entertaining and teaching disbelief in or opposition to organized government, or teaching the duty, necessity, or propriety of the unlawful assaulting or killing of any officer, or officers, either of specific individuals, or of officers generally of the government of the United States, or of any other organized government, because of his or their official character; and that he was an anarchist or person who at the time of his entry believed in or advocated the overthrow by force or violence of the government of the United States, or of all forms of law, or who disbelieved in or was opposed to organized government, or who advocated the assassination of public officials.'

An arrest followed, and the relator was taken into custody at Boston. A hearing was held in that city on June 25, 1918, and on July 22, 1918. These hearings resulted in a recommendation by the immigrant inspector at Boston that the relator be deported. The finding was that the relator--

'is an anarchist, and, in my opinion, a dangerous one, and he is teaching, through these publications that he handles, coming from all parts of the world to him, the idea of social revolution and anarchy, all of which he acknowledges in the hearing.'

The findings and recommendation were submitted to the Commissioner General of Immigration and the Acting Secretary of the Department of Labor, and were reviewed by them and approved. A warrant, directing that the Commissioner of Immigration of New York deport the relator to Spain, was issued by the Acting Secretary of the Department on November 4, 1918.

A writ of habeas corpus was obtained on behalf of the relator, and after a hearing in the United States District Court for the Southern District of New York the writ was dismissed, and on December 20, 1918, the relator was remanded to the custody of the United States Commissioner of Immigration at the port of New York.

The right of Congress to exclude or to expel aliens, or any class of aliens, absolutely or upon conditions, in war or in peace has been declared by the Supreme Court an inherent and an inalienable right of every sovereign and independent nation. In Fong Yue Ting v. United States, 149 U.S. 698, 13 Sup.Ct. 1016, 37 L.Ed. 905, the court held that the power of Congress to expel might be exercised entirely through executive officers. And see Wong Wing v. United States, 163 U.S. 228, 16 Sup.Ct. 977, 41 L.Ed. 140. This doctrine was reasserted in Low Wah Suey v. Backus, Commissioner of Immigration, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165. In the case last cited the court said:

'A series of decisions in this court has settled that such hearings before executive officers may be made conclusive when fairly conducted. In order to successfully attack by judicial proceedings the conclusions and orders made upon such hearings, it must be shown that the proceedings were manifestly unfair, that the action of the executive officers was such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute. In other cases the order of the executive officers within the authority of the statute is final. United States v. Ju Toy, 198 U.S. 253 (25 Sup.Ct. 644, 49 L.Ed. 1040); Chin Yow v. United States, 208 U.S. 8 (28 Sup.Ct. 201, 52 L.Ed. 369); Tang Tun v. Edsell, 223 U.S. 673 (32 Sup.Ct. 359, 56 L.Ed. 606).'

The present proceeding is an attack upon the order issued by the Acting Secretary of Labor directing the respondent, the Commissioner of Immigration at Ellis Island, New York Harbor, to deport the relator to Spain, the country whence he came. To successfully attack that order it must be shown that the proceedings upon which the order is based were unfair, or that the relator has been denied a fair hearing, or that there has been an abuse of discretion on the part of the executive officers of the United States.

It is asserted that the relator is not within the enumerated classes. It is admitted that he is an anarchist. The following testimony was given by the relator at the hearing before the inspector:

'Q. Do you believe in or advocate the overthrow by violence or force of the government of the United States? A. No, sir.

'Q. Any other government, Spanish, or Italian, or Mexican? A. No, sir; our ideals are founded on education.

'Q. What are your ideals? A. Free thinking.

'Q. Don't you believe in the power of authority? A. What do you mean?

'Q. Organized government. Don't you think, if the President gives an order when Congress empowers him, that it should be obeyed? A. Yes; the orders should be obeyed.

'Q. Do you believe in the propriety of assassination of public officials of the United States or any other government? A. No, sir; not only of officials, but of nobody. Everybody has a right to live.

'Q. Do you believe in anarchy?

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