Ex parte Rocha, 149.

• Decision Date: 25 February 1929
• Docket Number: No. 149.,149.
• Citation: 30 F.2d 823
• Parties: Ex parte ROCHA.
• Court: U.S. District Court — Southern District of Texas

30 F.2d 823 (1929)

Ex parte ROCHA.

No. 149.

District Court, S. D. Texas, at Corpus Christi.

February 25, 1929.

M. J. Raymond, of Laredo, Tex., for applicant.

D. Heywood Hardy, Asst. U. S. Atty., of Houston, Tex., opposed.

HUTCHESON, District Judge.

This case, in its general outlines, is like Ex parte Rodriguez (D. C.) 15 F.(2d) 878. The warrant of deportation in this case is based upon the following findings:

(1) That he has been convicted of, or admits the commission of, a felony, or other crime or misdemeanor, involving moral turpitude, to wit, adultery, prior to his entry into the United States.

(2) And that he entered the United States for an immoral purpose.

The first ground is identical with that discussed in the Rodriguez Case, and, for the same reasons there presented, is wholly ineffective to support the deportation, it being in the alternative and therefore meaningless, since it does not find either that he has been convicted of, or that he admits, but finds that he did one or the other, which is, of course, no finding.

The second ground of the warrant, while definite and clear in its statement, finds no support in the evidence.

Findings for the purpose of deportation, while made by the executive, must partake of judicial character, must be reasonable, and must sustain some apparent relation at least to the facts from which they are derived. A finding, under facts of this kind, that the applicant entered the United States for an immoral purpose, is not only not supported by the evidence, but is on its face absurd.

The evidence establishes that the applicant is 27 years of age; that he was born in Mexico and with his parents entered the United States in 1915, where he has continued to reside; that he is and has been for some years a barber in the city of Laredo, owning and maintaining a business there; that on the night of October 23, 1928, having a local card which entitled the possessor to travel backward and forward, he went across the footbridge from Laredo to Nuova Laredo, Mexico, returning within an hour, accompanied over and back by a woman, Natividad Santos de Saldana. This card was offered in evidence, and had on it, "Issued to Benigno Rocha; occupation, barber, residence 419 Grant Street, Laredo, Texas."

While, as was adverted to in Ex parte Rodriguez, it smacks of the utmost technicality to call a passage across a bridge a new entry, the letter of the law and a practically universal line of authorities do so declare. Therefore, though the applicant has lived in the United States for 13 years, and would not, but for this passage over and back, be subject to deportation no matter what his offense, it is the law that, having crossed over, he stands in the same position as to the power of the government to deport him, as though it were his first entry. It does not follow, however, that because of that fact that the executive may, or the court will, close its eyes to the dominant and real facts in the case, which are not that he came into the United States for an immoral purpose, but that having gone across the river for an hour's visit, he returned to his home and his business for the purpose of pursuing the ordinary tenor of his life, and whether he did or did not have improper relations with the woman on his return is wholly immaterial, and cannot be found to be the cause or purpose of his return.

The warrant which is the source of the authority of the officer who holds plaintiff being insufficient to support the action, it would follow that plaintiff should be discharged unless the evidence is sufficient to support an affirmative finding under the first ground, in which event, counsel for the government having requested it, a stay should be granted in order to permit a new affirmative finding to be based upon the facts. Mahler v. Eby, 264 U. S. 32, ...