Berkman v. Tillinghast
| Decision Date | 17 May 1932 |
| Docket Number | No. 2660.,2660. |
| Citation | 58 F.2d 621 |
| Parties | BERKMAN v. TILLINGHAST, Commissioner of Immigration. |
| Court | U.S. Court of Appeals — First Circuit |
Harry Hoffman, of Boston, Mass., for appellant.
John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Dist. Atty., of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
This is an appeal from a judgment of the District Court refusing a writ of habeas corpus to discharge the petitioner from an order of deportation under which she is held.
The petitioner, a resident in this country, was arrested on a department warrant charging that she was an alien and a member of, or affiliated with, an organization or group that believes in, advocates, or teaches, the overthrow by force of the government of the United States. A second charge was added during the progress of the hearings, viz., that the petitioner is a member of, or affiliated with, an organization which causes to be written, published, or distributed printed matter advocating the overthrow by force or violence of the government of the United States. Due notice of this additional charge was given to the petitioner, and she was accorded an opportunity to meet it. The immigration tribunals found that both charges were sustained, and ordered deportation on both grounds.
On the day of her arrest, there was a preliminary hearing at which the warrant was read and explained to her. She was from first to last throughout the hearings represented by counsel of her own selection. At the first hearing she testified under oath that she was born in San Francisco. At the continued hearing on a later date, she changed this testimony and stated that she was born in Poland in 1903 and came to this country in 1921. The allegation that she is an alien was thus established by her own admission and is not now in dispute. The immigration tribunals were warranted in believing that she committed willful perjury in her testimony on this point.
The case presents the usual questions, whether the hearings before the immigration tribunals met the requirements of due process of law, and whether there was any evidence to support the findings. Lieutenant Hynes of the Los Angeles police testified, by deposition taken in Los Angeles, that he had been connected with the intelligence bureau of his department, and for a time was a member of the Communist Party, or the "Workers' Party of America"; that they are the same thing and are part of the Communist International which aims to accomplish a revolution in the United States by force and violence; that he knew the petitioner; that she is a member of the Communist Party or the Workers' Party; that she told him on different occasions that she was a member of the Communist Party; that he heard her make speeches on its behalf in 1928; that he knew she served on the Executive Committee of the Communist Party. The witness produced a card bearing the petitioner's signature which showed that she was a member of branch 3 of the Young Workers' League, a subsidiary of the Workers' Party, of which branch she was secretary and treasurer. These cards were dated 1925. The witness further testified that the petitioner left Los Angeles some time in 1929 and was at that time an active member of the Communist Party. There is no contention that the petitioner's views have changed since 1929. She denied the vital parts of Lieutenant Hynes' testimony. The question which should be believed was for the immigration tribunals to decide. Various printed documents, put out by the Communist Party or its affiliated organizations, in which overthrow of the government of the United States by force and violence was advocated, were offered in evidence. Obviously, if this testimony was properly received, there was ample evidence to support the findings.
The Hynes evidence was...
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