Billings v. Sitner

• Decision Date: 08 December 1915
• Docket Number: 1071.
• Parties: BILLINGS v. SITNER. [1]
• Court: U.S. Court of Appeals — First Circuit

228 F. 315

BILLINGS v. SITNER. ^[1]

No. 1071.

United States Court of Appeals, First Circuit.

December 8, 1915

Leo A Rogers, of Boston, Mass. (George W. Anderson and William C Matthews, both of Boston, Mass., on the brief), for appellant.

William H. Lewis, of Boston, Mass., for appellee.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

DODGE Circuit Judge.

Sitner an alien immigrant, arrived at Boston May 7, 1913, and was detained for examination before a board of special inquiry according to section 24 of the Immigration Act. 34 Stat. 898 as amended by 36 Stat. 263 (Comp. St. 1913, Secs. 4244, 4247).

After hearings on May 8 and 10, 1913, the board voted on the latter date to exclude him. It appears from the facts agreed by the parties that the board so voted because it assumed that a certificate by the medical officer who had examined him under section 17 of the act, to the effect that he was feeble-minded and his vision was defective, of itself bound the board to exclude, notwithstanding any other evidence.

We agree with the District Court that this assumption was erroneous, and prevented the hearing from being the fair hearing required by law. Section 10 of the act provides that the board's decision 'based upon the certificate of the examining medical officer' shall be final as to the rejection of aliens affected with mental or physical disability which would bring them within the excluded classes. But this cannot mean that the certificate is to take the place of a fair hearing by the board. Such a construction would result in giving the inspecting medical officer, instead of the board, the power of final decision. Although immigration rule 17, subdivisions 4, 5 (note), state that the board is 'virtually compelled' to base its decision upon the certificate, we hold that it has no right to do so without exercising its own judgment, after considering not only the certificate, but whatever other evidence there may be touching the alien's right to enter. The District Court had previously so held in another case.

After the above vote to exclude him, Sitner was by mistake released from the custody of the immigration officers. The mistake having been discovered, he was arrested on a warrant issued May 15, 1913, by the Secretary of Labor under section 21 of the act. The warrant, in pursuance of immigration rule 22, subdivision 4, directed the immigration inspector to grant him a hearing to enable him to show cause why he should not be deported. The act provides for such a hearing in such cases. Low Wah Suey v. Backus, 225 U.S. 460, 467, 32 Sup.Ct. 734, 56 L.Ed. 1165. Nor without such an opportunity to be heard on the questions involving his right to be in this country can an alien be lawfully deported. Japanese Immigration Case, 189 U.S. 86, 23 Sup.Ct. 611, 47 L.Ed. 721. Even if the board of special inquiry had admitted Sitner, instead of excluding him, the Secretary might have ordered him deported, if the second hearing called for by the warrant had resulted in a contrary decision. Pearson v. Williams, 202 U.S. 281, 26 Sup.Ct. 608, 50 L.Ed. 1029.

The hearing directed by the warrant was held May 16, 1913, before the Commissioner General and an Assistant Commissioner of Immigration. A report dated May 20th was afterward presented to the Assistant Commissioner, made by a medical board, convened on that day for the examination of Sitner, and consisting of three medical officers, such as required by section 17 of the act. Their report set forth that they--

'found him to present such a degree of mental deficiency as to justify certification as feeble-minded in accordance with official instructions governing the medical examination of aliens.'

Also that:

'He is markedly near-sighted and has loss of third finger of right hand.'

The Assistant Commissioner thereupon, after reciting the proceedings on May 8th and 10th at the hearing before the board of special inquiry, found that no new evidence presented at the hearing before him on May 16th affected in any manner the decision made by that board on May 10th; also that:

'The decision of the medical examiner is controlling, and the said certificate is further strengthened and fortified by the report of the medical board sitting this day.'

He therefore recommended deportation, and upon his findings and recommendation the Secretary of Labor issued a warrant for Sitner's deportation on May 29, 1913.

It has been further agreed by the parties in the District Court that in making his above finding and recommendation the immigration officer--

'acted in the belief that he was bound to recommend deportation of said alien upon the decision of the medical examiner and report of the medical board under the rules and regulations of the Immigration Department, notwithstanding any other evidence.' We are obliged, upon this admission, to take the same view of the hearing under the warrant as that above taken regarding the earlier hearing before the board of special inquiry, and for the like reasons. While an excluding decision, to be final in...