Brownlow v. Miers
| Decision Date | 05 November 1928 |
| Docket Number | No. 5221.,5221. |
| Citation | 28 F.2d 653 |
| Parties | BROWNLOW, U. S. Immigration Inspector, v. MIERS. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alexander C. Birch, U. S. Atty., of Mobile, Ala. (D. R. Coley, Jr., and J. E. Meredith, Asst. U. S. Attys., both of Mobile, Ala., of counsel and on the brief), for appellant.
William H. Armbrecht, of Mobile, Ala. (Chas. C. Hand and Thos. E. Twitty, both of Mobile, Ala., of counsel and on the briefs), for appellee.
Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.
George Miers, a minor 17 years of age, arrived at the port of Mobile, Ala., on the steamship Texas, January 23, 1927, from Naples, Italy, as a stowaway, and after hearing before a Board of Inquiry of the United States immigration inspectors, was excluded and ordered deported to the country from which he came. At the hearing before the board he was asked the following question and gave the following answer:
He was able both to speak and write English, and stated that he did not wish to have any friend or relative present at the hearing; that he had no passport or credentials of any kind; that both parents had died in Italy some two or three years before and that he did not know the names of either; that he had two sisters and a brother living in New York City, the name of one sister being Mary Miers, who married in Italy and "went somewhere; I never see her any more"; that his brother's name was A. Miers, but he did not know his first name. In answer to the question, "Of what country are you a subject or citizen?" He answered, "Nowhere;" but claimed to be a citizen of the United States, because he thought he was born in New York, although he had no proof thereof. At the hearing there was read into the record a letter from an attorney at law, stating that he represented Miers and requesting that he be permitted to appear for the alleged alien as attorney, which, after reading, the board ruled upon as follows:
The attorney was allowed to review the record and an appeal was prosecuted to the Secretary of Labor, who affirmed the decision of the board. There is nothing in the record to show that a rehearing was sought before the board, or that anything in the way of evidence that might have been excluded or was newly discovered, was urged by counsel who took the appeal, at any stage before the final ruling of the Secretary of Labor. It was stated in oral argument by counsel for the appellant that the matter had been heard previously, both by the board and Secretary of Labor, and upon application to the court below the departmental order of deportation was set aside, and the cause sent back for another hearing, upon the holding of the lower judge that the first proceeding was unfair, because of the denial of the right to representation by an attorney. The case before us was not orally argued by counsel for appellee. The only thing in the record tending to show that the matter had previously been before the lower court is the following in the printed copy of proceedings of the board, as follows:
"Chairman: The United States District Court, sitting at Mobile, Ala., May 16, 1927, having remanded to the custody of the immigration authorities the alien George Miers, a de novo hearing as to the application of the alien to land in the United States will now be heard."
It was also stated by counsel for appellant that the board again declined to allow the attorney to represent the petitioner, for the reason it would have been an acquiescence in the ruling without opportunity to get the question, which it considered of vital importance to the department, before this court for decision.
Thereupon the minor, through his next friend, Gene D. Barr, brought this application for habeas corpus for the release of Miers, upon the ground that the hearing was unfair, because he had been denied the right to have a friend present throughout the proceedings before the board; further, because he had been denied the aid of an attorney or counsel; that although the board "well knew of evidence in favor of petitioner, or evidence which might throw light on the status of your petitioner as being entitled to remain in this country, said immigration inspectors wholly failed to call said witnesses and to bring out said testimony"; that petitioner was guaranteed the right to counsel by the Constitution and laws of the United States and was denied due process under the Fourteenth Amendment; and, finally, that the decision of the board was not supported "by any evidence that, or to the effect that, your petitioner was and is an alien of the United States, and was and is entitled to remain in the United States, all as shown by Exhibit A hereto attached, which your petitioner avers contains all of the evidence brought out at said hearing of said board." Exhibit A was a certified copy of the entire proceedings before the board, which showed the examination of Miers, from which the facts stated above are taken.
The inspector of immigration and the sheriff of Mobile county, who were made parties defendant, demurred to the petition, upon the ground, in substance, that it did not disclose upon its face a cause of action, and moved to strike the whole thereof from the record. Among the reasons urged for dismissal were that the court was without jurisdiction; that it affirmatively appeared from the petition that petitioner was held pursuant to a valid order of deportation; that the hearing was fair and upon substantial evidence, which had been affirmed by the Secretary of Labor; that petitioner expressly waived the right to have a friend or acquaintance present during the hearing; that the contention that petitioner was entitled to representation by an attorney was contrary to the rules of the department and the laws of the United States, and did not render the hearing unfair or unjust; because the averments that the board "knew of evidence in favor of petitioners, or which might throw light on petitioner's right to remain in this country, and had failed and neglected to call said witnesses and bring out such testimony, is a naked conclusion of the pleader"; that because neither the names of the witnesses nor the character of the evidence alleged to have been known by the immigration inspectors is set forth, and it affirmatively appears from the exhibits attached to said petition that such information was not known to the board; that the alleged violation of the constitutional rights of petitioner are mere conclusions of law; that there was no abuse of discretion by the board; and that the exhibits attached to and made part of the petition affirmatively show that petitioner was and is an alien.
The matter appears to have been submitted upon this state of the record without further pleading or proof in support of the allegations of the petition. The court below held the hearing unfair, in that petitioner was denied the right to have the assistance of counsel, and it was further indicated that the court thought certain evidence had been considered which did not appear in the record. It decreed "that the hearing held by the said Board of Special Inquiry, on May 19, 1927, be and the same is hereby declared null and void, and set aside, and that the said George Miers be held in the custody of the immigration authorities pending a hearing by a Board of Special Inquiry, in accordance with the immigration laws of the United States."
Opinion.In reviewing the record in this case it is well to note that we have as good an opportunity of judging the proceedings before the board as had the court below, for both are upon the cold transcript and without the advantage of having heard any of it. We, therefore, cannot agree with the language quoted in the court's written...
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