Ex parte Keizo Shibata

• Decision Date: 27 February 1929
• Docket Number: No. 9440-H.,9440-H.
• Citation: 30 F.2d 942
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte KEIZO SHIBATA.

30 F.2d 942 (1929)

Ex parte KEIZO SHIBATA.

No. 9440-H.

District Court, S. D. California, S. D.

February 27, 1929.

J. Edward Keating and Theodore E. Bowen, both of Los Angeles, Cal., for petitioner.

S. W. McNabb, U. S. Atty., and W. R. Gallagher, Asst. U. S. Atty., both of Los Angeles, Cal., for respondent.

JAMES, District Judge.

Petitioner is held by the immigration officers under authority of a warrant of the Secretary of Labor requiring that he be returned to Japan, his native country. By this proceeding petitioner seeks to be discharged from that custody on the ground that the warrant of deportation was illegally issued, stating his principal grounds as follows: (1) That the finding of the Secretary of Labor does not support the warrant of deportation. "because it is in the alternative, and therefore void"; (2) that the proceedings were unfair, in that a charge not included in the ones first lodged against the alien was preferred after the conclusion of the hearing, of which his counsel was not advised in time to be prepared to meet it; (3) that there was no evidence produced to support the warrant of deportation. The further ground that deportation action was barred by limitation of time was abandoned by the alien, in view of the holding in Lauria v. U. S. (C. C. A.) 271 F. 261.

The deportation warrant recites that the alien "has been convicted or admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit, perjury, prior to entry into the United States." On September 8, 1919, petitioner arrived at the port of Victoria, B. C., on board ship from Japan. Upon his attempting to enter the United States, he was taken into custody by the United States immigration officers and given a hearing before a board of special inquiry at Seattle, Wash. Petitioner was there sworn, and through a Japanese interpreter testified regarding a former residence in the United States and the circumstances and important dates connected therewith. These matters were all material to the inquiry as to whether the alien had a right to enter the United States. He first testified that he had, at a prior time, lived for four years in the United States; that he had landed in San Francisco in February, 1914, and that he had a passport at that time; that the passport had been obtained on the representation that he was coming to the United States to buy breeding cattle for a dairy establishment in Japan, and that such was the fact; that he had, after being allowed to land, lost the money that he was to have used to buy the cattle with, and had found work as a family servant.

Upon the examining board suggesting to him that the records in the San Francisco office would furnish evidence of the facts represented by him, he retracted the statement, stating: "My former statement was not true. I landed in February, 1907, at the port of San Francisco, from Hawaii. Do not remember the name of the steamer. It was a foreign steamer." He proceeded to detail that he came as a sailor and deserted the ship at San Francisco; that he had lived at Honolulu prior to that time for one year. After the taking of this testimony had been concluded, applicant requested permission to again appear before the board, and then changed his story and testified that he came to the United States in 1912, entering without inspection; that he came from Hawaii. The examining board reported findings recommending that the alien be deported as a person likely to become a public charge, his status being defined as that of a laborer. An appeal was taken and the findings of the board that the alien should be excluded were affirmed by the Labor Department.

Upon a showing, however, made by the alien that he had some farming interests in California, which he desired to give attention to, the order confirming the deportation decision was modified by a direction that the alien be admitted for a period of six months upon a bond in the sum of $1,000 that he would depart from the United States at the end of that period without expense to the government. The bond was furnished. The alien did not depart at the expiration of the time fixed, but applied for an extension of the temporary permit, which was allowed, the new date of departure being fixed at January 1, 1921. The sureties on the alien's bond consented to continue their responsibility for the alien's departure. The alien did not depart on January 1, 1921, and the Immigration Department on February 2 notified the bondsmen that the bond was subject to forfeiture. One of the sureties on the bond petitioned that a further extension of time be granted the alien, which was by the department denied, and action was directed to be taken to recover on the bond and to apprehend the alien. A warrant of arrest was issued dated the 4th of April, 1921, but petitioner was not apprehended until the year 1928. At the hearing then accorded him, the record of the proceedings as they were had at the time of the alien's conditional entry at Seattle was presented and considered by the inspector and the alien's counsel who was present. At that time the inspector advised the alien that in addition to the charge of his having been at the time he arrived at the United States port a person likely to become a public charge, the further accusation would be made that he had "admitted committing a crime involving moral turpitude, to wit, perjury, before a Board of Special Inquiry at Seattle." The latter charge appears not at the time to have been used as a basis for a deportation recommendation.

However, the Labor Department, after considering the facts, directed that the case be reopened for the purpose of preferring the additional charge relating to the admission by the alien of perjury. A supplemental hearing was had on the 23d of August, 1928, before an immigration inspector, the alien and his counsel having received due notice thereof. The additional charge was there stated to the alien in the following form: "That you are an alien who was convicted of or admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude, to wit, perjury, before a board of special inquiry at Seattle, on October 3, 1919." The alien's counsel objected to the making of the additional charge. The inspector stated...