Colyer v. Skeffington

• Decision Date: 23 June 1920
• Docket Number: 1833,1845.,1835,1837,
• Parties: COLYER et al. v. SKEFFINGTON, Com'r of Immigration. KATZEFF et al. v. SAME (three cases). In re HARBATUK et al. In re MACK et al.
• Court: U.S. District Court — District of Massachusetts

265 F. 17

COLYER et al. v. SKEFFINGTON, Com'r of Immigration. KATZEFF et al. v. SAME (three cases). In re HARBATUK et al.

In re MACK et al.

Nos. 1833, 1835, 1837,, 1845.

United States District Court, D. Massachusetts.

June 23, 1920

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Lawrence G. Brooks and Morris Katzeff, both of Boston, Mass., for petitioners.

Felix Frankfurter, of New York City, and Zechariah Chafee, Jr., of Cambridge, Mass., amici curiae.

Lewis Goldberg, Asst. U.S. Atty., of Boston, Mass., for respondent.

ANDERSON Circuit Judge.

These are petitions for habeas corpus brought by or in behalf of 20 aliens against the Commissioner of Immigration at Boston. They were heard together; they fall into two classes: William T. Colyer, Amy Colyer, Frank Mack, Lew Bonder, Frank Matchian, Tehon Lanovoy, Trofim Yarmoluk, Anton Harbatuk Anton Gessewich, Fred Chaika, Koly Honchereoff, Adam Musky, and Sedar Serachuk have, after appeal to the Secretary of Labor, been ordered by him to be deported. Seven of the aliens were at the time of the filing of the petitions held at Deer Island by the respondent in default of bail, fixed, on recommendation of Assistant Commissioner of Immigration Sullivan, as follows:

Ivan T. Hyrnchuk . . . $10,000

Theodore Pashukoff . . . 5,000

William Maches . . . 5,000

William Chriupko . . . 5,000

Joe Sinkus . . . 5,000

Wladimir Serachuk . . . 5,000

Samuel Drakewich . . . 5,000

Near the end of the long hearing, in which it clearly appeared that none of the aliens were in any way involved, by the use of bombs, guns, or other weapons, in plans of injuring persons or property, and that the cases could not for many months be finally disposed of, the writs were ordered issued and all the petitioners admitted by this court to bail in the sum of $500 each. No such responsibility would have been taken by the court if there had been a scintilla of evidence that any alien thus set at liberty was committed in any way to acts of force or violence against person or property.

At the opening of the trial the cases were said by counsel on both sides to be, in many important aspects, test cases of the legality of an undertaking of the government to deport several thousand aliens alleged to be proscribed by a portion of section 1 of the Act of October 16, 1918 (Comp. St. Ann. Supp. 1919, Sec. 4289 1/4b(1)), as follows:

'That * * * aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the government of the United States * * * shall be excluded from admission into the United States.'

Section 2 (section 4289 1/4b(2)) provides for the deportation of such aliens, irrespective of the time of their entry.

The sole charge against these aliens is membership in the Communist Party or the Communist Labor Party. The proposition of the Department of Justice, adopted by the Commissioner General of Immigration, as hereafter set forth, is that membership in one of these parties is, alone, enough to bring the aliens within the purview of this provision; that both parties are committed to a scheme to overthrow our government by force or violence. In both classes of cases the petitioners attack, on grounds fatal if sustained, the validity of the proceedings instituted by the government on January 2, 1920, for their deportation.

Under such circumstances, it seemed the plain duty of this court to afford the fullest opportunity both to the petitioners and to the government to present all facts arguably pertinent, in order that there might be a record adequate for a determination of the important issues of law by the Supreme Court or the Circuit Court of Appeals. The case therefore has been heard before me at length on 15 days. The transcript of parol evidence and arguments makes a record of nearly 1,600 pages. In addition, there is a large mass of exhibits. The petitioners were permitted to present practically all the evidence which, in their view, might sustain their contentions. Their counsel have also had the assistance of Professors Felix Frankfurter and Zechariah Chafee, Jr., of the Harvard Law School, who, as amici curiae, have appeared in association with counsel for the petitioners, and assisted both in the presentation of the evidence and in the argument of controlling questions of law.

I desire to express my appreciation of their unselfish and highly professional endeavors to assist in the proper determination of a cause involving, directly, the fundamental rights of a large number of aliens but poorly equipped with means or knowledge to protect their rights, and, indirectly, questions of far-reaching and general importance to all, whether citizens or aliens.

It should be added that, at the close of the hearing, Assistant United States Attorney Lewis Goldberg, who has presented the government's side of the cause with very great ability, urging every possible authority offering any support for the government's proceedings, expressed himself as fully content with the opportunity given the government to present all evidence and arguments which might sustain its view of the law and the facts. No counsel from the departments in Washington has rendered the slightest assistance on the law or the facts.

In such a case, based upon such a record, it is the obvious duty of the trial judge in his opinion to excerpt from the bulky record the evidence--particularly the documentary evidence-- of most vital importance, to make relevant findings of fact based upon all the evidence, and thus to present, for the decision of the issues of law for the court above, a record of the facts, accurate, adequate, and yet as brief as possible. Under such circumstances, the opinion of the trial court is obviously, in scope and purpose, closely analogous to the function performed by an adequate master's report. With such a case, presented on such a record, actual brevity has been found impossible of realization. This writing is unpleasantly, but necessarily, lengthy.

Controlling Legal Principles.

A preliminary statement of the well-settled and familiar principles of law on which all of these habeas corpus cases involving the exclusion or deportation of aliens depend will bring into clearer perspective the field of facts in which this court must perform its most important duties.

It has been repeatedly held that 'the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace,' is 'an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare; ' that this 'power to exclude and to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene. ' See Fong Yue Ting v. United States, 149 U.S. 698, 711, 713, 13 Sup.Ct. 1016, 1021 (37 L.Ed. 905), in which Mr. Justice Gray elaborately reviews the authorities; The Chinese Exclusion Cases, 130 U.S. 581, 9 Sup.Ct. 623, 32 L.Ed. 1068; Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 Sup.Ct. 336, 35 L.Ed. 1146; Chin Yow v. United States, 208 U.S. 8, 28 Sup.Ct. 201, 52 L.Ed. 369; Lewis v. Frick, 233 U.S. 291, 34 Sup.Ct. 488, 58 L.Ed. 967.

Otherwise stated, there is no constitutional limit to the power of Congress to exclude or expel aliens. An invitation once extended to the alien to come within our borders may be withdrawn. He has no vested right to remain. This was expressly adjudicated in the Chinese Exclusion Cases, 130 U.S. 581, 9 Sup.Ct. 623, 32 L.Ed. 1068, in which the Supreme Court unanimously held that the fact that a Chinese laborer had legally entered the United States conferred upon him no right of which he could not be deprived by a subsequent act of Congress.

It is also familiar and perfectly well-settled law that the courts have no jurisdiction, on habeas corpus proceedings, to interfere with the proceedings in the Department of Labor concerning the exclusion or the expulsion of aliens, unless and until there is some error of law in that department. Unless the proceedings in that department are unfair, thus lacking some of the essential elements of due process of law, or are based upon some misconstruction of the statute or disregard of the rules made pursuant thereto, or on other vitiating error of law, the courts have no jurisdiction. In these habeas corpus cases, therefore, it may be said that the primary function of the court is to try, not the right of the alien to enter or to remain in the United States, but to try the trial of the alien in the Department of Labor; if that trial was fair and legal, even though the result was, in the opinion of the court, erroneous on the facts, the court has no right to interfere; it may not, in habeas corpus proceedings, usurp the function that Congress has delegated by statute to the Department of Labor.

But while the courts have no jurisdiction on habeas corpus to substitute their judgment on pure questions of fact for that of the Secretary of Labor, it is equally well settled that if the proceedings in the Department of Labor are shown to be unfair, or otherwise lacking in the essential elements of due process of law, or if the Secretary of Labor is proceeding on an erroneous view of the law, then the courts must review. Gegiow v. Uhl, 239 U.S. 3, 36 Sup.Ct. 2, 60 L.Ed. 114; Chin Yow v. U.S., 208 U.S. 8, 28...