Ex parte Petterson

• Decision Date: 24 November 1908
• Parties: Ex parte PETTERSON.
• Court: U.S. District Court — District of Minnesota

166 F. 536

Ex parte PETTERSON.

United States District Court, D. Minnesota, Fourth Division.

November 24, 1908

On the 31st day of July, 1908, the petitioner herein was arrested in the city of Minneapolis, Minn., by Marcus Braun, United States immigrant inspector of St. Paul, upon telegraphic instructions received by him on the same day from William R Wheeler, Assistant Secretary of the Department of Commerce and Labor, which instructions were as follows:

'Arroup (Arrest following named alien and bring before yourself for hearing, forwarding record of proceedings to the Department) Evalda alias Midget Petterson, Swedish prostitute, submitting case through Minneapolis Office and securing stenographer from there. Expenses detention authorized.

'(Signed)

Wheeler Assistant Secretary.'

She was thereupon brought before Immigrant Inspector Marcus Braun, at the post office building in the city of Minneapolis, the telegraphic communication from the Assistant Secretary of Commerce and Labor was then read to her, and she was informed of her right to employ counsel, which she declined to exercise at that time. She was then sworn, and testified, in substance, as follows: 'I was born at Carlsburg, Sweden and first came to the United States in 1901.

I will be 23 years of age on the 1st of December, 1908. When I first came to America in 1901 I worked for a time as a servant girl; on the 5th of December, 1906, I left New York on the steamship Oceanic, for the purpose of visiting my home in Sweden. Immediately before the last-named date I had been an inmate for six or seven months of a house of prostitution kept by one Nellie Reed, at 165 South Washington street, St Paul. Before I went to the Reed house I had been an inmate for 2 1/2 years of a house of prostitution kept by one Dottie Thorne at 163 South Washington street, in the city of St. Paul. I have never been married, and when I returned to Sweden in December, 1906, I went there for the purpose of visiting my home, with the intention of coming back to this country. When I got ready to come back to America I wrote to Miss Thorne, stating that I desired to come back, and requested her to send me a ticket. Just before returning to Sweden in December, 1906, I had been back in the house of Miss Dottie Thorne for about one week. Miss Thorne sent me a ticket and some money, the ticket and money amounting to $113. Upon my return to this country I came over on the steamship Teutonic, and landed in New York on the 12th of September, 1907. From New York I came direct to St. Paul, and went at once to the house of Miss Dottie Thorne, 163 South Washington street, where I lived as an inmate of such house of prostitution until my arrest on the 31st day of July of the present year. I have never been naturalized, and am an alien. ' There was no other testimony offered or received, at the hearing before Immigrant Inspector Braun, than the testimony of the petitioner as above set forth.

Upon the conclusion of these proceedings before the inspector, a transcript of the record was forwarded by the immigration officers to the Secretary of Commerce and Labor at Washington; and on the 4th day of August 1908, a warrant was duly issued by the Assistant Secretary of Commerce and Labor, directed to Commissioner of Immigration Robert Watchhorn, at Ellis Island, N.Y., which warrant contained, among other things, the following recitals: 'Whereas, from proofs submitted to me, after due hearing before Inspector Marcus Braun, at Minneapolis, Minn., I have become satisfied that Evalda, alias Midget Petterson, alien, who landed at the port of New York, N.Y., ex S.S. Teutonic, on the 12th day of September, 1907, is in this country in violation of the act of Congress approved February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U.S. Comp. St. Supp. 1907, p. 389)) to wit: That the said alien is unlawfully in the United States, in that she is a prostitute, was such at the time of entry, and has been found practicing prostitution within three years subsequent to arrival; and whereas, the period of three years after landing has not elapsed; I, William R. Wheeler, Assistant Secretary of Commerce and Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to return the said alien to the country whence she came, at the expense of the steamship company importing her. ' It was further provided in said warrant of deportation: 'That the alien will be detained as a witness against her alleged importer and keeper until such time as her presence is no longer required, whereupon she will be delivered into your custody for deportation. ' On the 8th day of October, 1908, and while the petitioner was being held in custody by the immigration officers of the United States and the sheriff of Hennepin county in the county jail, under and pursuant to the authority contained in said warrant for deportation, a petition for a writ of habeas corpus was presented to this court. On the same day an order was made allowing the writ, and by consent of parties it was made returnable on the 13th day of October, 1908, whereupon the following proceedings were had: The petitioner was sworn in her own behalf, and examined by her counsel solely as to the manner of her arrest. No testimony was offered either by the petitioner or by the government relative to the domicile which it was claimed she had acquired in the United States prior to her return to Sweden on the 5th day of December, 1906. By consent of both parties, a copy of the testimony in the proceedings before Immigrant Inspector Braun on the 31st day of July, 1908, was received in evidence. The case was thereupon argued by counsel and submitted to the court for decision. After making the foregoing statement of facts, the court rendered the following opinion.

O. H. O'Neil, for petitioner.

C. C. Houpt, U.S. Atty., and J. M. Dickey, Asst. U.S. Atty.

PURDY, District Judge (after stating the facts as above).

1. The petitioner is now being held for deportation under a warrant issued by the Assistant Secretary of Commerce and Labor, under and pursuant to the authority contained in section 21 of the act of February 20, 1907, entitled 'An act to regulate the immigration of aliens into the United States' (Act Feb. 20, 1907, c. 1134, 34 Stat. 905 (U.S. comp. St. Supp. 1907, p. 402)), which section is in part as follows:

'Sec. 21. That in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an alien is subject to deportation under the provisions of this act, or of any law of the United States, he shall cause such alien within a period of three years after landing or entry therein, to be taken into custody and returned to the country whence he came, as provided by section 20, of this act,' etc.

It is contended by counsel for petitioner that the provisions of this act above quoted have no application to an alien who has acquired a domicile in the United States, and is returning to this country after a brief visit to the land of his birth, such visit having been made with no intention of abandoning the domicile that he had previously acquired; and it is further contended that this petitioner is shown by the record of the proceedings before the immigrant inspector to have been such an alien at the time of her second arrival in the United States.

A preliminary question has been suggested which must first be considered: Has this court authority in a habeas corpus case to examine the record of the proceedings before the immigrant inspector, for the purpose of ascertaining whether the Assistant Secretary of Commerce and Labor, in issuing his warrant for deportation, acted with respect to a matter over which he had jurisdiction? It is of course well settled by abundant authority that the writ of habeas corpus cannot be employed to perform the function of a writ of error or an appeal. There are, however, several recent decisions of the Supreme Court holding that the courts of the United States have jurisdiction to grant relief to a party aggrieved by any action by the head or one of the subordinate officials of a department, when the evidence adduced before such official, and upon which he assumes to act, is wholly uncontradicted, and shows beyond any room for dispute or doubt that the case in any view is beyond the statutes, and not covered or provided for by them. Gonzales v. Williams, 192 U.S. 1, 24 S.Ct. 177, 48 L.Ed. 317; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90. Upon the authority of these cases-- and many others might be cited-- there can be no room for question that this court has authority to examine the record and the evidence upon which the Assistant Secretary of Commerce and Labor predicated his authority to issue his warrant for the deportation of the petitioner, for the sole purpose of ascertaining whether the evidence before that official, and upon which he assumed to act, showed beyond any room for dispute or doubt that this case is beyond the purview of the immigration statutes of the United States, and not covered or provided for by them.

2. The foundation of petitioner's claim of right to be discharged from custody is contained in the proposition that an alien who in good faith has acquired a residence in the United States may, upon his return after a temporary absence in a foreign country, pass our frontier and remain in the United States without interference or molestation by our immigration officers; in other words, that an alien who has once acquired a domicile in the United States has a right to leave and re-enter this country with the same freedom as a citizen of the United...