Kunimori Ohara v. Berkshire

• Decision Date: 11 March 1935
• Docket Number: No. 7594.,7594.
• Citation: 76 F.2d 204
• Parties: KUNIMORI OHARA v. BERKSHIRE, District Inspector, Immigration Service.
• Court: U.S. Court of Appeals — Ninth Circuit

76 F.2d 204 (1935)

KUNIMORI OHARA v. BERKSHIRE, District Inspector, Immigration Service.

No. 7594.

Circuit Court of Appeals, Ninth Circuit.

March 11, 1935.

J. Edward Keating and Theodore E. Bowen, both of Los Angeles, Cal., for appellant.

Peirson M. Hall, U. S. Atty., Ernest R. Utley, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before WILBUR and GARRECHT, Circuit Judges, and CAVANAH, District Judge.

GARRECHT, Circuit Judge.

This is an appeal from an order of the District Court denying petition for writ of habeas corpus. An anonymous communication was received by the Immigration Service at Los Angeles stating that one Kunimori Ohara had entered the United States from Mexico "five years ago at 1928" without a passport, and giving his address. Shortly thereafter, on May 4, 1933, appellant was taken into custody and examined under oath.

At this examination for investigation of status the alien stated that he entered the United States from Mexico, on foot, in 1921, at Tia Juana, and proceeded from there to Los Angeles by automobile. He was unable to recall any details or landmarks and was hazy upon distances traveled and time consumed on his journey from Ensenada, Mexico, into the United States, which was the way he said he entered this country. He was unable to describe the landing at Manzanillo, or the boat trip from Manzanillo to Ensenada, which formed a link in his journey. Concerning the people whom he met at the time he arrived in Los Angeles, he said he could not remember their names or that they had returned to Japan. On the whole, the testimony given by him seems evasive and tended to confuse rather than clarify. Following this examination a telegraphic order for arrest of the alien was requested, which was received the day following, on which day the hearing to show cause was called. The hearing was continued, at the request of the alien's attorney, to May 9th and then to May 16th, and again continued to June 2, this time at the request of the government. On this latter date the hearing proceeded.

In response to a telegram, there was received from San Francisco, under date of May 23, 1933, a record and statement of facts relative to admission of an alien, in transit to Mexico, on December 17, 1927. The description of the alien set forth therein exactly fitted the arrested alien, even to a mole on the lower left lip. The name, age, height, occupation, and home village are the same. The only discrepancy noted is the name of the father; the name given by the arrested alien being different from that set forth in the certificate from the port of San Francisco. The alien named in the certificate departed from San Ysidro, Cal., by foot, for Mexico on December 30, 1927. This certificate was made part of the record, over objection of alien's attorney. Also introduced, over objection, was a letter signed by the inspector in charge at San Pedro, Cal., reciting that no record could be found of the arrival or departure there of the alien on the steamship Anyo Maru, on which he claimed to have sailed from Japan in 1921; that that vessel arrived at San Pedro on April 19, 1921, but that the alien's name did not appear on the through manifest. Under instructions from his attorney the alien declined to answer the questions put to him on the hearing.

The Board of Review recommended that the Department of State be requested to ascertain through its consular service in Japan the date and manner of the alien's last departure from Japan and whether he was in fact the person who arrived at the port of San Francisco, December 17, 1927, on the steamship Shinyo Maru in transit to Ensenada, Mexico.

Upon receipt of information from the American consulate in Japan to the effect that Kunimori Ohara was not registered in the census register of the village under the family of Takejiro Ohara, as he claimed, but was registered as the second son of Yoshido Ohara of the same village, and that his address was not known. The father's name and the date of birth corresponded with that of alien admitted in transit in December, 1927. It appeared also that the family name of the mother was "Takada," which was the name of a person appellant said was a relative who met him when he first came to Los Angeles. The names of his brother and sister, noted by the consul, correspond with those given by appellant when first interrogated. The Board thereupon recommended that the case be reopened.

Appellant's attorney objected to the use of this report of the American Consul, and instructed the alien not to answer any questions put to him. No evidence was offered by the alien. As a result of this hearing the inspector recommended that Kunimori Ohara be deported and, after further consideration, the Board of Review so ordered, upon the ground that he was not, at the time of entry, in possession of an unexpired immigration visa and that he was in the United States in violation of the Immigration Act of 1924, being an alien ineligible to citizenship and not exempt under the act.

Appellant specifies as error, in his brief, that the lower court erred in not holding that the deportation was barred by section 19 of the Immigration Act of 1917 (8 US CA § 155), but he does not argue the point in the brief, nor is that section of that act specifically mentioned in his assignment of errors. At any event, this point is of no merit because the alien was charged, as noted above, with being in the United States in violation of the Immigration Act of 1924, which permits deportation at any time after entry.

The substance of appellant's attack upon the deportation proceedings is that the hearing was unfair.

It will be noted that the burden of proof in deportation proceedings is upon the alien "to show that he entered the United States lawfully, and the time, place, and manner of such entry, * * *" Immigration A...