Browne v. Zurbrick

• Decision Date: 11 December 1930
• Docket Number: No. 5682.,5682.
• Parties: BROWNE v. ZURBRICK, Director of Immigration, et al.
• Court: U.S. Court of Appeals — Sixth Circuit

45 F.2d 931 (1930)

BROWNE v. ZURBRICK, Director of Immigration, et al.

No. 5682.

Circuit Court of Appeals, Sixth Circuit.

December 11, 1930.

Catherine G. Herlehy, of Detroit, Mich., for appellant.

Stephen J. Carey, of Detroit, Mich. (John R. Watkins, of Detroit, Mich., on the brief), for appellees.

Before DENISON, MOORMAN, and HICKS, Circuit Judges.

DENISON, Circuit Judge.

In this habeas corpus appeal, as in other similar cases, we find a very unsatisfactory record. The complete record before the Commissioner of Immigration was used and referred to on the hearing before the District Judge; but so little of it is included in the record made up for us that we frequently cannot fully understand the questions involved. We have therefore in these cases directed, as we did in this case, that a complete certified copy of the Commissioner's record be filed in this court as and for a part of the return to the appeal, and that it need not be printed, unless specially ordered.

From such complete record, it appears that Browne, by birth a Canadian, entered the United States lawfully in 1919, at the age of twenty. He established and maintained a residence in Detroit, and continuously had lucrative employment, serving in a clerical position — salary $2,400. In 1928 he was arrested and convicted, under a Michigan statute, for indecent liberties with a girl of fifteen. Under Michigan procedure, he was not imprisoned, but was placed on probation for two years, and he was continued in his regular employment. In February, 1929, he desired to visit relatives in Canada. His probation officer gave consent, he had frequently spent his vacations in Canada, and he supposed he would be allowed to re-enter. After about ten days he returned, and represented to the inspector on this entry that he had been a resident of the United States for ten years and in Canada only on a brief visit. A few days later he was arrested upon a deportation charge, alleging that, at the time of his second entry, he was a person likely to become a public charge, and further that he had been convicted of or admitted the commission of a crime involving moral turpitude, prior to this second entry. There was the usual hearing before an inspector; the finding was against him; the Board of Review approved; and a deportation warrant issued, but based only upon the conviction. His petition for habeas corpus was dismissed by the court below.

One general aspect deserves attention before turning to the particular situation. During a long period, with reference to immigration and exclusion acts, a course of judicial construction developed, approving, or rather condoning, great laxity in the preservation to an alien of rights which in the case of a citizen would be considered essential to due process of law. We call attention to the recent comments of Judge Learned Hand to this effect in Iorio v. Day, Com'r (C. C. A.) 34 F.(2d) 920, at page 922. By the Act of March 4, 1929, § 1 (a-c), as amended by Act June 24, 1929 (8 USCA § 180), the alien is forever barred from re-entry, even if after arrest he is allowed to and does go out voluntarily. Not only that, but if he returns he is to be imprisoned as a felon. Thus deportation becomes as to aliens who have established a domicile here a decree of perpetual banishment and exile — regardless of fixed family and business ties and connections; and it more clearly carries a heavy burden of "possible human woe." Judge Hough (U. S. ex rel. Karamian v. Curran (C. C. A.) 16 F. (2d) 958, at page 961. Whether, in view of this change in the results of a deportation order, the courts will construe more liberally the due process rights of a resident alien, is a question that will eventually call for consideration; here it is enough to say that, in applying the supposed statutory grounds of deportation to this alien, long rightfully domiciled here, the application must be clear, and cannot rest on doubtful interpretation.

There was no evidence tending to sustain the allegation that Browne was likely to become a public charge. Deportation was not ordered on this ground; but in a proper case we might permit a new warrant, to comply with the proofs, and hold the proceedings for that purpose. The matter is therefore not irrelevant. The government's contention on this point rests solely upon the theory that one who is guilty of crime, and therefore likely to be convicted for it and to be imprisoned at the public expense, is ipso facto likely to become a public charge. There is authority to this effect; but, as applicable to the facts of this case, we think the contrary rule supported by the better authority and the stronger reason. This court in Lam Fung Yen v. Frick, 233 F. 393, 396, said that the language of the act was not limited to paupers or to those likely to become such; but this general language was used with reference to a particular exception, and did not necessarily imply any other exception. The alien there was a Chinese gambler, with no professed means of support, except the practice of his occupation as he traveled from place to place. He was of the class who are, as Judge Knappen said, "likely to become periodically the inmates of prisons." There is no occasion to modify this holding, when we have now to consider the case of a single crime, not of the continuing type, and involving no prospect of the prison habit. The question was quite fully discussed and reviewed by the Second C. C. A. in Iorio v. Day, supra. In so far as that opinion expresses dissent from our Lam Fung Yen Case, we are not convinced; but we agree with its reasoning and conclusion to the extent that guilt of a crime which might upon conviction bring imprisonment does not...