Foley v. Ward

• Decision Date: 25 February 1936
• Docket Number: No. 5250.,5250.
• Parties: FOLEY ex rel. SCHENCK v. WARD, Commissioner of Immigration.
• Court: U.S. District Court — District of Massachusetts

13 F. Supp. 915

FOLEY ex rel. SCHENCK v. WARD, Commissioner of Immigration.

No. 5250.

District Court, D. Massachusetts.

February 25, 1936.

John T. Lane, of Boston, Mass., for petitioner.

Francis J. W. Ford, U. S. Atty., of Boston, Mass., for Mary H. Ward, Commissioner of Immigration.

SWEENEY, District Judge.

This is a petition for a writ of habeas corpus praying for the petitioner's discharge from the custody of the immigration officials on the grounds that their decision and order to deport the petitioner is "manifestly unfair," is "arbitrary and unreasonable," and that it is an "error in law."

Deportation proceedings were brought under 8 U.S.C.A. § 155, and 8 U.S.C.A. § 136 (a) and (d).

Section 136 provides for the classes of aliens who shall be excluded from the United States, and refers principally to a condition existing at the time of entry. Section 155 provides for the deportation of persons who have already entered the United States and who within five years after entry "become a public charge from causes not affirmatively shown to have arisen subsequent to landing," and other causes.

First considering section 136 (a), which provides that the following classes of aliens shall be excluded from admission into the United States: "All idiots, imbeciles, feeble-minded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; persons with chronic alcoholism."

It has not been shown that at the time of this petitioner's entry into the United States she was within any of the above classes. Nor, from her conduct after entry, and by that I refer to the fact that she twice became pregnant, has it been shown from the medical standpoint that she was within any of the above classes.

Section 136 (d) states that the following classes of aliens shall be excluded from admission into the United States: "Persons not comprehended within any of the classes enumerated in paragraphs a, b, or c, who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may effect the ability of such alien to earn a living."

It is to be noted that this paragraph refers to persons who are found "by the examining surgeon" to be mentally defective, etc. This petitioner was passed by the examining surgeon, and no question was raised by him at the time of her admission. If the government seeks to invoke section 136 (d) as a basis for the deportation of this petitioner, it would appear necessary to...