Ex parte Kurth

• Decision Date: 02 October 1939
• Citation: 28 F. Supp. 258
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte KURTH et al.

28 F. Supp. 258

Ex parte KURTH et al.

District Court, S. D. California, Central Division.

June 29, 1939.

Appeal Dismissed October 2, 1939.

A. L. Wirin and Maurice Saeta, both of Los Angeles, Cal., for petitioners.

Ben Harrison, U. S. Atty., and Ralph E. Lazarus, Asst. U. S. Atty., both of Los Angeles, Cal., for the United States.

YANKWICH, District Judge.

The petitioners seek to stay an order of deportation. Their petition for a writ of habeas corpus, in its amended form, nowhere asserts their right to be in the United States.

It merely alleges, in a general way, that the petitioners are imprisoned and confined and restrained of their liberty by Honorable Albert Del Guercio, United States Immigrant Inspector and Law Officer attached to the Immigration and Naturalization Service of the United States Department of Labor at Los Angeles, California; that said imprisonment, detention, confinement, and restraint are illegal; and that the illegality thereof consists in the following: "That said petitioners are being imprisoned under and by virtue of a purported order of deportation to Germany, which said order is now void and of no force and effect in the following respects and particulars."

The allegations which follow are to the effect that the petitioners are refugees, and that, as a matter of fact, such an order would subject them to punishment and deny the constitutional right of freedom of asylum of political refugees and due process of law.

Then follow allegations relating to alleged acts said to have been committed prior to the hearing upon which the deportation warrant was based, and which, in a general way, charge arbitrariness on the part of Albert Del Guercio and conspiracy to cause the men to be returned to Germany.

As stated, nowhere in the petition is it averred that these aliens are legally in the United States. And it is significant that in the brief filed by Mr. Sol M. Alpher with the Department of Labor, while the order of the Board was before them, no such contention was made. On the contrary, it is stated therein: "Hans Kurth and Gunther Haberman, natives and citizens of Germany, joined the crew of the M. S. Seattle in Germany, as assistant electrician and as apprentice seaman, respectively. Both aliens are opposed to the present German Government, and had engaged in anti-government political activities in Germany prior to their sailing. Because of their opinions and activities, the aliens found it necessary for their physical safety to leave Germany and seek asylum elsewhere. They, therefore, became seamen and shipped on the Seattle, arriving in San Francisco on September 3, 1938. Here they deserted; eight days later they were arrested in Santa Barbara, California, on charges of vagrancy. Examination and hearings by Immigrant Inspectors followed shortly thereupon, resulting in the present proceedings." (Italics added)

Nor was it claimed that, by reason of the law which gives seamen the right to a temporary stay in the United States, or by reason of any visa issued, they had the right to remain in the United States. All that the brief asked was that the issuance of warrants of deportation be withheld pending the voluntary departure of the aliens from the United States to any other country without expense to the United States.

If we are going to be realistic, I think we ought to "get down to brass tacks" and realize just what these aliens are claiming. When no claim of citizenship is made, the burden of proving the right to remain in the United States is placed by the law upon the alien. See 8 U.S.C.A. § 221. This burden must be assumed by an alien seaman claiming this right. Taranto v. Haff, 9 Cir.1937, 88 F.2d 85. The alienage of the petitioners here is established by all the evidence in the record and by their own admissions. More, their petition here is based upon the proposition, as is also the argument of their counsel, that they should be granted admission as political refugees from an alien country.

Let us advert, for a moment, to the rights of an alien who is in the United States, and whose right to be here is challenged. It is made the duty of immigration officers, when informed of the presence of an alien in the United States, to examine him as to his right to be here. The Ninth Circuit, in Graham v. United States, 9 Cir. 1938, 99 F.2d 746, has sustained the right to make such examination.

If we eliminate entirely from consideration the questions asked of these two aliens before the present hearings, which were followed by a recommendation for deportation, and which were adopted by the Assistant Secretary of Labor, we find that, at these hearings, which were held in their presence and the presence of their counsel, the alienage of both petitioners appeared. I quote from the record:

"Q. Mr. Kurth, in order to clear up a matter in the record, I would like to ask you a few questions. You first arrived in the United States at the Port of San Diego, California. A. Yes.

"Q. On the M. S. `Seattle'? A. Yes.

"Q. And according to the record, you arrived at that port on that vessel August 25, 1938, is that correct? A. I can't say that date exactly.

"Q. And the vessel then proceeded coastwise from San Diego to San Francisco, where you deserted the vessel? A. Yes, the ship went to Canada.

"Q. It went to Canada after leaving San Diego? A. San Francisco and Vancouver.

"Q. Well, now, here, after leaving San Diego, the vessel proceeded directly to San Francisco? A. Yes.

"Q. At the time of your arrival at San Diego on this vessel, did you have an unexpired immigration visa, issued by an American Consul? A. No.

"Q. Was it your intention at the time of your arrival at San Diego to remain permanently in the United States? A. Yes." (Italics added)

At other places in the proceedings, similar statements were made. And, at no time, was it claimed that, by virtue of any statute of the United States, these persons had a right to enter the United States for residence therein. On the contrary, it was stated frankly that they shipped as seamen from Germany and came to the United States as such, then deserted.

Seamen are not "immigrants". 8 U.S. C.A. §§ 202, 166, 167.

Now, what are the rights of an alien who is apprehended in the United States, and whose right to be here is challenged? Before being deported, and while he is held for deportation under a warrant of arrest, he is entitled to a fair hearing. That means just this: The right to be apprised of the nature of the charge against him, the reason for the challenge of his right to be here; to be confronted with witnesses, and to present testimony and to have counsel. See Branch v. Cahill, 9 Cir. 1937, 88 F.2d 545, 546; Ex parte Nunez, 9 Cir.1937, 93 F. 2d 41; Hays v. Zahariades, 8 Cir.1937, 90 F.2d 3; U. S. ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U. S. 103, 47 S.Ct. 302, 71 L.Ed. 560; U. S. ex rel. Tisi v. Todd, 1924, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590. None of these rights has been denied these aliens in the hearings which preceded the recommendation for the order of deportation.

There appears to have been some questioning of the aliens prior to the formal hearing. To this questioning, so far as the record shows, the aliens made free answers. All the preliminary questions related to their arrival into the United States. No admissions were sought or obtained, other than those which were made subsequently, and which are made the basis of these proceedings. No passports were unlawfully taken from their persons and used against the aliens in the deportation. That is the difference between this case and the cases to which counsel refer. See In re Sugano, D. C.Cal.1930, 40 F.2d 961; Ex parte Eguchi, D.C.Cal.1932, 58 F.2d 417; Roux v. Commissioner, 9 Cir.1913, 203 F. 413; U. S. ex rel. Bosny v. Williams, D.C.N.Y.1911, 185 F. 598. In those cases, admissions were secured by unfair tactics on the part of the officers, — admissions which might not otherwise have been given.

But here, the alienage is not disputed.

There is no assertion of the right to be in the United States except as refugees. Throughout these proceedings, these men truthfully said that they deserted their ship. And under examination by their counsel before the Board of Inquiry, their political activities in Germany and their birth and residence there were fully gone into as a basis for the plea there made, not that they had the right to be in the United States or to remain after entry as alien seamen, but in order to lay a foundation for the claim of "the right to asylum".

Before discussing this claimed "right of asylum", I quote from an article of mine which expresses my view, at the present time, as to the standard of conduct of those charged with the enforcement of law. Yankwich, Lawless Enforcement of Law, 9 Southern California Law Review, 1935, 14, 32-33.

"The strength of our legal system lies in the fact that it is based upon the rule of law. It has been said that the chief aim of the modern State is to `uphold the rule of law'. (MacIvor, The Modern State, 478.) We who are charged with the administration of justice must uphold the rule of law. It will not do to say that the persons against whom these practices are used are anti-social — persons who violate the law. The very test of our rule of law lies in its application to those who come in conflict with the law. If we deny its application to them, it ceases to exist for any of us. In giving them the full benefit thereof, we do it, not for them, but for ourselves.

"`Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government...