Ex parte Garcia

• Decision Date: 03 March 1913
• Docket Number: 15,338.
• Citation: 205 F. 53
• Court: U.S. District Court — Northern District of California
• Parties: Ex parte GARCIA.

205 F. 53

Ex parte GARCIA.

No. 15,338.

United States District Court, N.D. California.

March 3, 1913

Marshall B. Woodworth and Gerald C. Halsey, both of San Francisco Cal., for petitioner.

John L McNab, U.S. Atty., of San Francisco, Cal., for Department of Commerce and Labor.

DIETRICH District Judge.

On October 28, 1913, after an extended investigation, the Secretary of Commerce and Labor issued a warrant for the deportation of one Pedro Garcia, an alien, who first came to this country from Spain in 1899. The warrant is based upon a finding of fact to the effect that in violation of section 3 of an act of Congress approved February 20, 1907 (34 Stat 899, c. 1134 (U.S. Comp. St. Supp. 1909, p. 450)), as amended by an act approved March 26, 1910 (36 Stat. 264, c. 128, Sec 2 (U.S. Comp. St. Supp. 1911, p. 502)), the alien, while domiciled in the state of California, and for some time immediately prior to his arrest in July, 1912, was, at the town of Vallejo, 'found receiving, sharing in, and deriving benefit from the earnings of prostitutes, and * * * was connected with the management of a house of prostitution. ' Feeling aggrieved by the issuance of the warrant, Garcia has presented a petition for a writ of habeas corpus, accompanied by a copy of all the proceedings before the immigration officials, to which petition, in response to an order to show cause, the immigration officers have filed a demurrer. The present submission is upon the demurrer, which calls into question the sufficiency of the petition to warrant interference by the courts with the proposed deportation.

1. The first contention of the petitioner is that, assuming the facts found by the Secretary of Commerce and Labor to be true, the warrant is against the law, for the reason that admittedly he was domiciled in this country for a period greatly exceeding three years immediately prior to his arrest, and the statutory authority under which the Department is assuming to act is limited to aliens of less than three years' residence. But it is not thought that this question is any longer an open one here, for upon consideration it has been expressly held in this court that by the amendatory act of 1910 the limitation clause relied upon was repealed. Ex parte Cardonnel (D.C.) 197 F. 774. In support of his position the petitioner cites Low Wah Suey v. Backus, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165; but while in the course of the opinion in that case language was used favorable to his contention, it is clear that the point was not involved and the court did not intend to decide it. In line with the Cardonnel Case the following may be cited: United States v. Weis (D.C.) 181 F. 860; United States v. Prentis (D.C.) 182 F. 894: United States v. Williams (D.C.) 183 F. 904; United States v. North-German Lloyd S.S. Co. (C.C.) 185 F. 158; Sire v. Berkshire (D.C.) 185 F. 967; Chomel v. United States (C.C.A., 7th Circuit 192 F. 117, 112 C.C.A. 461.

2. In the second place, it is argued that the petitioner was not given a fair hearing. While under this branch of the case the proceedings are attacked in several distinct particulars, it is found upon analysis that directly or indirectly they all relate to and depend upon the general question whether in matters of deportation issues of fact may be properly tried out upon ex parte affidavits. All of the evidence adduced in the case, both against and for the petitioner, was in the form of affidavits or ex parte depositions, and if such procedure is not in violation of the standing rules of the Department, or in contravention of any fundamental principle of procedure or natural right, then all of the specific criticisms urged by the petitioner cannot avail to confer authority upon the court to interfere with the execution of the warrant, and for these reasons: The petitioner was advised of his right to have the assistance of counsel, and in due time counsel was employed. A liberal time was given for the production of his evidence, and nothing offered by him was excluded. While the bias of an advocate is shown by one of the inspectors in taking certain of the affidavits or ex parte depositions, upon the whole the record shows no disposition to be unfair or to prejudge the case upon the part of the adjudicating officers. If it be conceded that the witness Bonita Diaz both understood and spoke the English language imperfectly, it does not follow that the statement elicited from her before she procured counsel, and without the aid of an interpreter, must be rejected entirely, or that its consideration constitutes jurisdictional error. The same difficulty is not infrequently experienced in criminal and other judicial proceedings, and it is sometimes a nice question whether or not a court should compel a witness to testify without an interpreter. It is well known that unwilling witnesses sometimes feign ignorance of our language as a pretext to shield them from direct interrogation. Undoubtedly Bonita Diaz was an unwilling witness, and I am not convinced that the officials acted fraudulently or abused their discretion in taking her statement under the circumstances disclosed by the record. At most, in the absence of facts tending to show bad faith upon their part, it was but an error in procedure, and does not operate to confer jurisdiction in a habeas corpus proceeding any more effectually than would the reception of irrelevant or incompetent testimony.

As to the point that in deciding the merits of the case the Department considered as a part of the evidence the preliminary affidavits upon the basis of which the original arrest was made, and which were therefore taken before the petitioner was apprised of the charge against him, it is clear that if the hearing can properly be had upon affidavits the objection is without merit.

A more serious criticism is that affidavits or ex parte depositions were taken without notice after the petitioner had employed counsel; but even here it is again to be said that if it be conceded that the entire hearing may be had upon affidavits the incident is without prejudicial error, for in the taking of affidavits by the government the presence of petitioner and his counsel could subserve no useful purpose. Affidavits are of necessity ex parte; there is no place for cross-examination.

In the same connection it is charged that later, when requested to submit to cross-examination by counsel for the petitioner these affiants declined to grant the request. Such conduct upon their part was reprehensible, and is hardly consistent with the theory of their disinterestedness or truthfulness, and under the circumstances should greatly, if not entirely, discredit their statements. But there is no showing that their attitude was the result of any inducement or suggestion coming from any officer of the government; nor was any application made to the government officers to produce the witnesses or to join with petitioner in requesting an opportunity to cross-examine. While I do not find any standing rule to that effect, upon the whole record I get the impression that the use of affidavits in such proceedings is a common practice, which in this case was followed as a matter of course, without any thought on the part of the officers that it was unfair or would be unjust to the petitioner. Indeed, counsel for the petitioner, who seem to have had considerable experience in such cases, when advised that the last group of affidavits had been taken, apparently felt and expressed no surprise that they should have been taken without notice, and at the time made no objection to their use, their only request being for additional time to refute them, which request was granted; and it may be added that in making his showing the petitioner relied exclusively upon affidavits taken without notice to the government. Bearing, as they do, upon the good faith and the fair intent in fact of the officers, these considerations are to be weighed in determining the legal effect to be attached to any error of law which the record may disclose. I am frank to say that in a case of this kind, where the petitioner has been domiciled in this country for more than a decade, and may have acquired large property interests and formed close social ties, and where, therefore, deportation is fraught with such dire consequences to him, to subject his right to remain here to a trial by ex parte affidavits is so far out of harmony with the procedure which I think ought to prevail that I would be inclined, upon slight...