Ex parte Seisuke Fukumoto

• Decision Date: 09 November 1931
• Docket Number: No. 6502.,6502.
• Citation: 53 F.2d 618
• Parties: Ex parte SEISUKE FUKUMOTO.
• Court: U.S. Court of Appeals — Ninth Circuit

53 F.2d 618 (1931)

Ex parte SEISUKE FUKUMOTO.

No. 6502.

Circuit Court of Appeals, Ninth Circuit.

November 9, 1931.

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

Samuel W. McNabb, U. S. Atty., and Milo E. Rowell, Asst. U. S. Atty., both of Los Angeles, Cal. (Harry B. Blee, U. S. Immigration Service, of Los Angeles, Cal., on the brief), for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.

ST. SURE, District Judge.

Appellant is a person of the Japanese race, born in Japan. He was ordered deported by the Secretary of Labor on the following grounds: (a) That he is in the United States in violation of the Immigration Act of 1924 in that he was not, at the time of entry, in possession of an unexpired immigration visa. (b) That he is in the United States in violation of the Immigration Act of May 26, 1924, in that he is an alien ineligible to citizenship, not exempted by paragraph c, section 13 thereof (8 USCA § 213(c), from the operation of said act. (c) That he entered in violation of rule 7 of the Immigration Rules.

Appellant filed a petition in the District Court for a writ of habeas corpus, alleging in substance that he had been in the United States continuously for a period in excess of five years immediately preceding the institution of deportation proceedings, that there was no evidence to sustain the warrant of deportation, and that he was not given a fair hearing. The District Court made its order discharging the writ and remanding petitioner to the immigration authorities for deportation, from which order this appeal is taken.

Appellant specified several errors in his assignment, all of which may be disposed of in deciding the question as to a fair hearing.

Appellant does not claim that he was ever admitted to the United States for legal residence. Both parties are satisfied with the holding of the Board of Review in that regard, which is as follows: "It may be concluded * * * as reasonably established that the alien was in the United States prior to July 1, 1924, the effective date of the Immigration Act of that year, under which the first two charges against the alien are placed, and although the alien has not borne the burden of proving the lawfulness of his entry or the time, place and manner of such entry, as is provided in section 23 of the Immigration Act of 1924, that would appear unimportant if he has shown that his last entry was prior to July 1, 1924, for whether he entered lawfully or not and whether he is presently within the country lawfully or unlawfully, if, having entered prior to that date he has continuously resided here since, he would not be deportable."

Appellant testified that he has been in the United States continuously since May, 1924, and produced several letters addressed to him in the United States, the first of which was postmarked June 7, 1924, and the last October 4, 1927. Robert M. Hartwell, an American citizen of the white race, testified that he had employed appellant as a gardener in June, 1924, and that appellant worked for him the succeeding three years. This witness had not seen appellant for two and one-half years, and appellee points out that, if appellant had resided continuously in this country from October 4, 1927, until the time of his apprehension, he could have produced some person to so testify. Appellee argues that such failure on appellant's part leads to the conclusion that he visited Japan in the interim.

The record shows that at the preliminary examination appellant stated to Inspector Garrity that he entered the United States at Calexico, Cal., on or about July 3, 1925; that he was not inspected at that time; that he was not in possession of an unexpired immigration visa, nor did he have a passport from his government entitling him to apply for admission to the United States; that he had been in United States previously in the sense that he had passed through in transit from San Francisco to Mexicali, Mexico, about six months before he came in from Mexicali; that he had come to the United States on that occasion on the steamship Siberia Maru; that he is by occupation a farm laborer; that he was born in Japan on December 8, 1897. He is described in these proceedings as being five feet three and five-eighths inches in height, and as having pit marks in front of his right ear and on the right side of his chin, and a scar at the junction of his first finger and hand on the left hand.

At the formal hearing following his arrest, appellant was told, in the presence of his counsel, "There is presented herewith for your inspection all the evidence on which the warrant of arrest was based which consists of sworn statement made by you to Inspector-in-Charge John R. Garrity at Los Angeles, Calif., October 22, 1929." Counsel stipulated that he had familiarized himself with the evidence. Appellant denied he made the statements attributed to him.

It is settled doctrine that in deportation proceedings the strict rules of judicial procedure and of proofs do not prevail. Ghiggeri v. Nagle (C. C. A.) 19 F.(2d) 875; Bilokumsky v. Tod, 263 U. S. 149, 157, 44 S. Ct. 54, 68 L. Ed. 221; Ng Mon Tong v. Weedin (C. C. A.) 43 F.(2d) 718. Statements such as the one in question here, made to an immigration inspector prior to arrest, are admissible in evidence. Bilokumsky v. Tod, supra; Ematsu Kishimoto v. Carr (C. C. A.) 32 F.(2d) 991; Ghiggeri v. Nagle, supra.

There was also offered in evidence Exhibit B in the immigration file. This document is known as Form 400, a "Descriptive List of Chinese persons, or Japanese or Korean laborer in transit through the United States." Aliens of the classes named are inadmissible for permanent residence, but are permitted under the regulations to pass through the country in transit. Appellant says his true name is ...