370 F.2d 989 (6th Cir. 1965), 15637, Woodby v. Immigration and Naturalization Service

Docket Nº:15637.
Citation:370 F.2d 989
Party Name:Elizabeth Rosalia WOODBY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:September 16, 1965
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 989

370 F.2d 989 (6th Cir. 1965)

Elizabeth Rosalia WOODBY, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 15637.

United States Court of Appeals, Sixth Circuit

Sept. 16, 1965

Sidney G. Kusworm and Jacob A. Myers, Dayton, Ohio, for petitioner, Kusworm & Myers, Dayton, Ohio, on the brief.

Charles G. Heyd, Asst. U.S. Atty., Cincinnati, Ohio, for respondent, Joseph P. Kinneary, U.S. Atty., Cincinnati, Ohio, on the brief.

Before MILLER, O'SULLIVAN, and PHILLIPS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This case is before us upon the petition of Elizabeth Rosalia Woodby to review and vacate an order of the Board of Immigration Appeals entered on May 27, 1963, denying her Motion to Reconsider its earlier order of March 8, 1963. The March order dismissed her appeal from an order of a Special Inquiry Officer directing that she be deported to Germany. The deportation proceedings were had under 8 U.S.C.A. § 1251(a)(12), which provides that,

'(a) Any alien in the United States * * * shall * * * be deported who-- (12) by reason of any conduct, behavior or activity at any time after entry became a member of the classes specified in paragraph (12) of section 1182(a) of this title; * * *.'

Section 1182(a)(12) defines as a class subject to exclusion,

'(12) aliens who are prostitutes or who have engaged in prostitution * * *.'

The Special Inquiry Officer conducted a hearing pursuant to 8 U.S.C.A. § 1252, at which testimony was taken and petitioner was represented by counsel. Petitioner and three other witnesses testified at such hearing and affidavits of petitioner and another obtained upon prehearing investigation were received in evidence. The inquiry officer found that petitioner had engaged in prostitution as charged and ordered that she be deported. Petitioner concedes that she did engage in prostitution, but claims that she did so while acting under duress which

Page 990

arose from the circumstances hereinafter set forth.

On January 8, 1955, petitioner Woodby, a native of Hungary and a citizen of Germany, married an American soldier then in service in Germany. Two children were born of the marriage. The first, a girl, was born in Germany and the second, a boy, was born prematurely in the United States on August 13, 1956. Petitioner was admitted to the United States on February 7, 1956, and went to live with her husband and daughter at the home of her husband's parents in Harlan, Kentucky. A few months later petitioner and her husband moved to Dayton, Ohio, where the second child was born. Petitioner's infant daughter was then living with her paternal grandparents in Kentucky. It is clear from the evidence that petitioner's husband gave little attention to the support and care of his wife and children.

Petitioner and her husband and the new born son lived for a time in Dayton until, as claimed by petitioner, the husband left her in early 1957, taking the son with him, and presumably took up residence in Harlan, Kentucky, with his parents and children. The husband was killed in an automobile accident about July 14, 1957.

It was after her husband left her that petitioner entered into the practice of prostitution. Her account of the facts which she claims made such conduct the product of duress is as follows.

While working to support herself, and about April 1, 1957 (later changed to February 7, 1957), she got a telephone call from her husband, who told her that their infant son was seriously ill and needed an operation that would cost $300.00. He stated that he had no money or Blue Cross insurance and requested her to provide the needed cash. The next day while petitioner was alone in her apartment contemplating her plight and crying, fearful that her son would die unless she could get the money for his operation, a vacuum cleaner salesman came to her apartment. Observing petitioner's apparent state of anxiety, this man asked the cause and told her he could help her get the money. He left momentarily and shortly returned with another man and a bottle of whiskey. After petitioner had consumed some whiskey, this vacuum cleaner salesman and part-time panderer proposed that he would lend petitioner the needed money to be repaid with...

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