Bhagat Singh v. McGrath

• Decision Date: 10 May 1939
• Docket Number: No. 9023.,9023.
• Citation: 104 F.2d 122
• Parties: BHAGAT SINGH v. McGRATH, District Director of Immigration, etc.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F.2d 122 (1939)

BHAGAT SINGH v. McGRATH, District Director of Immigration, etc.

No. 9023.

Circuit Court of Appeals, Ninth Circuit.

May 10, 1939.

Joseph P. Fallon, Leslie C. Gillen, and Herbert Chamberlin, all of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal. (Arthur J. Phelan, U. S. Immigration and Naturalization Service, of San Francisco, Cal., on the brief), for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

By warrant issued January 25, 1938, the appellant was ordered deported to his native India, upon the ground that he was in the United States in violation of section 13(c) of the Immigration Act of 1924, 43 Stat. 161, 8 U.S.C.A. § 213(c).

The alien has the burden of proving his right to remain in the United States. Keizo Kamiyama v. Carr, 9 Cir., 44 F.2d 503, 506; Naranjan Singh v. District Director of Immigration, etc., 9 Cir., 96 F.2d 969. Likewise, the burden is upon the alien to prove lawful entry into this country. 8 U.S.C.A. § 221. If the alien unlawfully entered the United States prior to July 1, 1924, deportation would be barred by the passage of the 5 year period of limitation under section 19 of the Immigration Act of 1917. Ohara v. Berkshire, etc., 9 Cir., 76 F.2d 204, 206; 8 U.S. C.A. § 155. If he entered subsequent to July 1, 1924, the Immigration Act of 1924 permits deportation at any time. 8 U.S.C. A. § 214.

The alien testified that he entered the United States near Calexico, California, May 14, 1924, surreptitiously and without inspection. He presented no witnesses or evidence, at any of the hearings, which would tend to prove his right to remain in the United States by entry prior to July 1, 1924, other than offering, on a motion to reopen the case, an affidavit, made June 24, 1938, by the secretary of the Pacific Coast Khalsa Diwan Society, of Stockton, Calif., a religious organization composed of East Indians, which recited that the alien was a member thereof in June, 1924, and in the years 1926, 1927, and 1928.

During the various hearings the appellant was confined in San Quentin Prison, San Rafael, Calif. The appellant had been arrested in El Paso, Texas, in 1923, and deported through San Francisco to India, but contended he left the boat at Japan and returned almost immediately to Mexico and made his way into the United States May 14, 1924. Depositions or statements were taken by immigration officials from three persons who identified photographs of Bhagat Singh and claimed to have known him in Mexico, in the vicinity of Mexicali, Baja California, (just across the international line from Calexico, California) in 1924, 1925 and 1926, and to have seen him there frequently during that period.

There is but one point to the appeal: Whether lack of a fair hearing and due process of law resulted from the inability of the appellant to personally confront and cross-examine the witnesses who stated they saw him in Mexico in 1924, 1925 and 1926.

Hearing under the warrant of arrest was had September 28, 1936, and at that time the alien was advised by the examining officer that the Government offered him the opportunity to cross-examine the persons who had given statements that they recognized his photograph as a person they knew in Mexico, at any place within a 50 mile radius of their respective places of residence, Calexico and San Diego, California. It was suggested by the examiner that inasmuch as the appellant was incarcerated in San Quentin Prison it would be necessary for the cross-examination to be conducted through his attorney or personal representative. Bhagat then...