Ex parte Vilarino

• Decision Date: 04 December 1930
• Citation: 47 F.2d 912
• Parties: Ex parte VILARINO. Ex parte RADE.
• Court: U.S. District Court — Panama Canal Zone

47 F.2d 912 (1930)

Ex parte VILARINO.

Ex parte RADE.

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

December 4, 1930.

John Beardsley, of Los Angeles, Cal., for petitioners.

Samuel W. McNabb, U. S. Atty., of Los Angeles, Cal. (Harry Graham Balter, Asst. U. S. Atty., of Los Angeles, Cal., of counsel; Harry Blee, U. S. Immigration Service, of Los Angeles, Cal., on the brief), for respondent.

HAZEL, District Judge.

These two cases were submitted together, and though the details are slightly different, the charge against both relators, who concededly are aliens, and the grounds of their deportation, are the same. In each proceeding the aliens, Vilarino and Rade, were separately charged in the immigration warrants with residing in the United States in violation of the Immigration Act of October 16, 1918, as amended by Act June 5, 1920 (8 USCA § 137), in that both are members of the Communist Party — a society or group of persons who believe in, advise, and teach the overthrow of the United States government by force, and with being members of an organization engaged in publishing and circulating printed documents or writings advising and teaching the overthrow of the government by violent means. Separate hearings were accorded the aliens by the immigration inspector with the result that deportation to the country from whence they came, on findings, was recommended to the Secretary of Labor, who approved the findings of the inspector, and the warrants issued. Subsequently a writ of habeas corpus was granted on the asserted ground that a fair hearing was not had in that incompetent evidence was received; that right of counsel at all stages of the hearings was refused, and, moreover, that the right of cross-examination of witnesses testifying against relators was curtailed or denied.

A careful examination of the evidence and the law applicable thereto, in my opinion, does not support the claim of unfairness at any of the hearings. On the contrary, I find that the evidence was fairly adduced; that the right of counsel at the formal hearings was freely accorded the aliens; that cross-examination of witnesses against them was not refused; and, further, that neither of the relators was deprived of his constitutional rights.

I will now refer briefly to the cases specifically and amplify my conclusions. Vilarino is forty-five years old, was born in Coruno, Spain, and entered the United States in August, 1903, at the port of New York, and has continuously lived in this country since his arrival. He is married and has eleven children, all born in the United States. Following his arrest, at his formal hearing Vilarino was represented by counsel, as the record clearly shows. At the preliminary hearing he was not represented by counsel, and he denied membership in the Communist Party, but subsequently at the formal hearing he admitted his membership therein. A detective officer of the Los Angeles Police Department, who was a former member of the Communist Party, testified that the Communist Party believes in, advocates, and teaches the overthrow of the government of the United States by force or violence, and that the American organization is affiliated with the Third International of Moscow, Russia. Documents also were introduced in evidence, indicating that the object and purpose of the organization is to revolutionize our government by force and establish a proletariat dictatorship, and emphasizing the beliefs and aims of the Communist Party in this respect. Such testimony was properly adduced, I find, and forms a corroboratory basis for the conclusion reached by the immigration authorities. The Vilarino documentary exhibits were secured by search and seizure, and it is contended in his behalf that his constitutional rights were violated, since in their procurement his home was unlawfully invaded. There was evidence tending to show that the police authorities had reason to...