Del Castillo v. Carr, 8903.

• Citation: 100 F.2d 338
• Decision Date: 14 December 1938
• Docket Number: No. 8903.,8903.
• Parties: DEL CASTILLO v. CARR, District Director of Immigration.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

100 F.2d 338 (1938)

DEL CASTILLO v. CARR, District Director of Immigration.

No. 8903.

Circuit Court of Appeals, Ninth Circuit.

December 14, 1938.

David C. Marcus, of Los Angeles, Cal., for appellant.

Ben Harrison, U. S. Atty., and Maurice Norcop, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This is an appeal from an order of the District Court of Southern California, Central Division, discharging a writ of habeas corpus sought by appellant, a citizen of the Republic of Mexico, in which he charges that he is illegally held by the appellee under a warrant of deportation.

Specifically the warrant states that appellant (quoting from the warrant) "who entered the United States at San Ysidro, California, in January, 1938, is subject to deportation under section 19 of the Immigration Act of February 5, 1917, being subject thereto under the following provisions of the laws of the United States, to-wit: The immigration act of 1924, in that at the time of his entry he was not in possession of an unexpired immigration visa; and the immigration act of 1917, in that he entered by means of false and misleading statements, thereby entering, without inspection."

The following facts are undisputed:

Appellant is a citizen of the Republic of Mexico. Immediately prior to his entry into the United States at Brownsville, Texas, on December 30, 1937, the appellant had been working on a basis of salary and commissions in Mexico, and there arose a dispute between him and his employer as to the amount of commissions due him. He was a traveling salesman and one of his duties was to collect from customers moneys payable to his employer. He had been allowed to apply money so collected to the payment of his salary and commissions admittedly due him.

According to appellant there was a long delay and unfulfilled promises in adjusting the balance, so he took the initiative and without permission applied his employer's money in his possession to the account between them as he understood it, and with his wife and child, both United States citizens, flew by plane to Brownsville, Texas, arriving there December 30, 1937. There he applied at the United States Immigration and Naturalization office for temporary admission to the United States upon the representation that he was going to visit his father-in-law in Michigan, U. S. A., but he said nothing about his difficulties with his employer. He was admitted under a six months' temporary visitor's permit under § 3(2) of the Immigration Act of 1924, 8 U.S.C.A. § 203(2).

Instead of going to Michigan, he went directly to Los Angeles, Calif., and within the month went to Ensenada, Mexico, where he consulted the American Consul regarding permanent residence in the United States. As he left the United States on this trip he showed his Brownsville permit to United States Government officials at the border and was assured that he could reenter thereon. On the same day he reentered the United States upon authority of the Brownsville permit.

Appellant first came to the United States in 1921 and spent approximately a year and a half in Rider College, N. J., then returned to Mexico. He again entered the United States in 1926 and remained here until the end of 1934. He worked around Detroit, Michigan, five or six years, and while in the United States married a woman of Polish descent (his present wife). They have one child, William, born January 6, 1930 at Detroit, Michigan.

The facts related in the last paragraph are not material in themselves, but throw light upon appellant's testimony, later to be quoted.

It may be argued that these facts alone if shown at a legal and fair hearing would support the trial judge in dismissing the writ. In the first place, neither the trial judge nor the judges of this court are weighers of the evidence in a proceeding of this kind. If there is any substantial evidence to support it the order of the Assistant Secretary of Labor cannot be nullified through the writ of habeas corpus. Ng Fung Ho v. White, 259 U.S. 276, 278, 42 S.Ct. 492, 66 L.Ed. 938; Ex parte Wong Nung, Wong Nung v. Carr, 9 Cir., 30 F. 2d 766. But for the reasons about to be recited, appellant claims that there was no fair hearing and that there was no substantial evidence to support the charges upon which the order of deportation was based. It will be necessary to detail the procedure of the case.

On February 2, 1938, the appellant was arrested by the police of Los Angeles, California, upon telegraphic information that appellant was wanted in Texas, but nothing came of this as the Texas state authorities withdrew all requests that he be held for them. While under detention, a United States Immigration Inspector interviewed appellant. It does not appear that he was at this time charged with being wrongly in the United States, or at least that he had been informed of any such charge. However, Immigration Inspector Milford M. Henderson informed appellant of the situation in the following language:

"I am a United States Immigrant Inspector and authorized by law to administer oaths in connection with the enforcement of the immigration law. I desire to take a statement regarding your right to be and remain in the United States. Any statement which you make should be voluntary and you are hereby warned that such a statement may be used against you either in criminal or deportation proceedings. Q. Are you willing to make a statement or answer questions under these conditions?"

Answer (by appellant) "Yes."

The Inspector says that appellant was then sworn by him, but appellant denies this. Appellant was given a searching examination. It may be noted that no mention of appellant's right to be represented by an attorney was made by the Inspector, and it may be stated that no attorney was present. The examination was conducted in the English language, was taken down in shorthand by the Inspector, and the transcription of this examination was made the basis of the charges against appellant heretofore set out and herein being considered.

A regular hearing on such charges began on February 14, 1938 before United States Immigration Inspector J. B. Pendergast, at the Los Angeles County jail, and after having been shown the warrant of arrest of the Assistant Secretary of Labor appellant was informed of his rights and the hearing was continued until later the same day when his attorney appeared. Thereafter appellant and several witnesses were sworn and gave testimony, and the hearing was continued from time to time, concluding on March 8th, 1938. Appellant was questioned and he gave answer partly in the English language and partly in Spanish through an interpreter. At the conclusion of the hearing appellant asserted that he had understood the proceedings with the interpreter helping him out.

The transcription of appellant's statement to Inspector Henderson was admitted in evidence as Exhibit "A" over a general objection and over the specific...