Ex parte Vilarino

Decision Date08 June 1931
Docket NumberNo. 6418.,6418.
Citation50 F.2d 582
PartiesEx parte VILARINO. VILARINO v. GARRITY, Immigration Inspector.
CourtU.S. Court of Appeals — Ninth Circuit

John Beardsley, of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., Harry Graham Balter, and Lewis M. Andrews, Asst. U. S. Attys., all of Los Angeles, Cal. (Harry B. Blee, U. S. Immigration Service, of Los Angeles, Cal., on the brief), for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.

SAWTELLE, Circuit Judge.

This is an appeal from a judgment of the United States District Court of the Southern District of California, Central Division, dismissing a writ of habeas corpus and remanding the petitioner for deportation to Spain as an alien illegally in the United States. 47 F.(2d) 912.

The appellant was born in the Province of La Coruña, Spain, January 1, 1885. He first came to the United States in 1903, and has lived in this country during most of the time since that date, having worked in 1908 and 1909 on a steamship plying between New York and Argentina. He is married, and has a large family, all of whom reside in Los Angeles.

On February 26, 1930, Vilarino was arrested by police officers of the city of Los Angeles, Cal., at the headquarters of the Communist Party, in Los Angeles, immediately after a Communist riot in the Plaza, at which disturbance, according to the testimony Vilarino was present. The charge was suspicion of criminal syndicalism, a felony under the law of California. Three days later, the United States Immigration Service instituted deportation proceedings against the alien.

The deportation of Vilarino was sought on two separate grounds: first, that he was a member of an organization, association, society, or group that believes in, advises, advocates, and teaches the overthrow by force or violence of the government of the United States; second, that he was a member of an organization, etc., that writes, circulates, distributes, prints, publishes, and displays written or printed matter advising, advocating, and teaching the overthrow by force or violence of the government of the United States. See 8 USCA 137 (c) and (e).

Three hearings were held before the immigration inspector. In his assignment of errors, appellant sets forth that the order of the District Court was erroneous in dismissing the writ of habeas corpus, on the following grounds:

(1) Because petitioner was not given a fair hearing before the Immigration Service and the Department of Justice; (2) because evidence was used against petitioner which had been taken from his possession illegally; (3) because the evidence was not sufficient to sustain the charges made and the issuance of the warrant of deportation.

In his brief, appellant states his three grounds as follows: "The principal ground of appellant's attack is that the hearings accorded him on order to show cause why he should not be deported, were unfair in these particulars:

"1. That incompetent evidence was received against him over objection of counsel, seasonably made.

"2. That petitioner was not accorded the right of counsel at all stages of the proceedings.

"3. That petitioner was not accorded the right of cross-examination of witnesses against him at all stages of the proceedings."

In view of these contentions, the dates, the sequence, and the substance of the proceedings before the inspector have bearing upon the law of the case. We will therefore summarize the hearings seriatim, in so far as they are pertinent to the issues, as disclosed by the Immigration Service file submitted to this court, since the briefs and the transcript of record are not specific as to certain necessary details.

The first proceeding was an "investigation of status," held at the Immigration Office in Los Angeles March 1, 1930. Vilarino was not represented by counsel, and declined to answer questions unless his lawyer was present. Nevertheless, the inspector proceeded with his examination, having made the following preliminary statement to the alien: "You are advised that I am a United States Immigration Officer and as such it is my duty to inquire into your right to be and remain in the United States. I want to give you an opportunity at this time to make a statement in that regard. You are advised that any such statement as you may make, should the facts warrant, will likely be used in further proceedings, and, further, that the law places the burden of proving your right to be and remain in the United States upon you."

In answer to a question, the alien refused to deny or affirm that he was a member of the Communist Party.

One of the officers that had arrested the alien was called to testify at the first hearing. The officer stated that Vilarino was present at the riot in the Plaza staged before his arrest, and that the alien had said "Yes and no" in answer to a question as to whether or not Vilarino was a member of the Communist Party. At the close of this first hearing, the inspector asked Vilarino whether he had anything to say regarding the testimony of the police officer. The alien refused to answer at first, but did make a brief statement regarding his previous answer when arrested, as to his membership in the Communist Party.

On the same day, March 1, the appellee sent a radiogram to the Immigration Bureau at Washington and a confirmatory request by mail, asking that a warrant of arrest of Vilarino be issued by the Secretary of Labor, on the two grounds set forth above. The mailed request inclosed a copy of the proceedings held before the inspector on that same day. On March 4, 1930, by telegraph and by mail, the Department of Labor at Washington sent a warrant for Vilarino's arrest, setting forth the same two grounds.

On March 5, 1930, in the county jail at Los Angeles, a brief "hearing to show cause" was held before the same inspector who presided over the first hearing. The telegraphic warrant of arrest was shown to the alien, and the code words explained to him. He was told of his right to be represented by counsel, and, on his indication that he wished to avail himself of that right, the hearing was postponed to March 15, 1930.

On March 15, in the Immigration Office at Los Angeles, there was held the continued "hearing to show cause." Vilarino was represented by counsel. The warrant of arrest was again read, and all the evidence upon which such warrant was based was presented for the alien's inspection. This evidence was read to the alien, at the latter's suggestion. His counsel noted an objection. After some preliminary discussion, the following questions were asked by the inspector and the following answers were made by the alien, still in the presence of his counsel:

"Q. Were any threats of violence used in securing the statement from you on March 1? A. No; you treated me nice.

"Q. Do you still deny that you are a member of the Communist Party? A. I am a member of the Communist Party, yes.

"Q. How long have you been a member? A. About three years, I believe."

Then followed a number of questions as to Vilarino's membership in the Communist Party, some of which he did, and some of which he did not, answer. He said that the statements made by him on March 1 were voluntary.

In answer to the questions propounded to him by his counsel, the alien asserted that he did not know that the Communist Party of the United States advocated or distributed literature advising the violent overthrow of the government of the United States.

The alien was shown a number of cards and other papers purporting to be connected with the Workers' Communist Party, most of which documents he identified as belonging to him.

The next witness was a detective lieutenant in the Los Angeles police department, who testified that he had been a member of the Communist Party for 11 months in 1922, and that, from his past membership therein, from his study of the movement in the United States, and from official documents published by the party which he had in his possession, he would say that the Communist Party of America advocated the forcible overthrow of the government of the United States. The same officer also testified that he had ordered the alien's home to be searched without a warrant.

Thereupon the alien's attorney made formal demand for the return to his client of all papers thus taken from his place of residence. The inspector denied the request.

One of the officers that arrested Vilarino was then called to the stand, for cross-examination by counsel for the alien. The attorney made the following preliminary statement to the witness: "The Inspector has kindly given me the opportunity to cross-examine you on testimony given by you at an earlier hearing in this matter, at which time the alien was not represented by an attorney at the hearing, and in which your testimony was received in spite of that fact —"

The witness stated that he also had taken part in the seizure of the papers at the alien's home after the latter's arrest. The officer testified that Vilarino's wife had invited the police to come into the house, and, referring to the Communist papers, had exclaimed: "For God's safe, come in and take them away!"

A third peace officer who testified fixed the date of the raid on Vilarino's home as March 1, 1930.

At the close of the hearing of March 15, 1930, the alien's attorney announced that he intended to file a brief within ten days after receiving the transcript. According to the "Transmission of Record of Warrant Proceedings" sent to Washington on May 7, 1930, by the inspector in charge, the appellee herein, a copy of the record of that hearing had been transmitted to the attorney on March 28, 1930, and he had been advised that he would be given ten days in which to file a brief. The brief had not been received, the "Transmission" further set forth.

Accordingly, the Assistant to the Secretary of Labor on August 23, 1930, having affirmed the findings of the Board...

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