Frick v. Lewis

• Decision Date: 13 February 1912
• Docket Number: 2,200.
• Citation: 195 F. 693
• Parties: FRICK, Immigration Inspector, v. LEWIS.
• Court: U.S. Court of Appeals — Sixth Circuit

195 F. 693

FRICK, Immigration Inspector, v. LEWIS.

No. 2,200.

United States Court of Appeals, Sixth Circuit.

February 13, 1912

This appeal is from a judgment in habeas corpus holding a warrant for deportation to be void. It was agreed in the court below that the facts of the case might be considered as they are stated in the opinion. The opinion shows (189 F. 146) that on November 17, 1910, Lewis 'went across the river, from Detroit to Windsor, remained not more than an hour or so, and brought back with him, into the United States, a woman claimed to be his wife. On this occasion he made to the immigration officers a statement as to the woman and her recent history, some part of which statement was concededly untrue. In December following he was indicted by the grand jury for violation of section 3 of the immigration law, * * * the sole charge being that in bringing this woman across the river on November 17th she was by him imported for an immoral purpose. This indictment duly came on to be tried in the District Court of this district, and on March 23, 1911, the trial jury rendered a verdict of not guilty. The issue was whether the woman was in fact, or was believed to be, his lawful wife. On November 24, 1910, he was arrested by an immigrant inspector upon a warrant of arrest issued by the Department of Commerce and Labor, specifying as its moving causes (1) that he had been convicted of or admitted having committed a felony or other crime or misdemeanor involving moral turpitude prior to his entering the United States; (2) that he had brought into the United States a woman for immoral purposes; (3) that at the time of his entry (November 17, 1910) he was likely to become a public charge; and (4) that he entered without inspection and hence was unlawfully in the country. Certain hearings and examinations were held before the inspectors. * * * What I understand to be a complete file copy of the department proceedings does not show any formal finding by the department upon the charges made, but that is, probably, not material, because on February 14, 1911, the Secretary of Commerce and Labor issued his warrant of deportation reciting that, after due hearing, he had become satisfied that Lewis, who landed at Detroit, Mich., from Canada, November 17, 1910, was in this country in violation of the immigration law as amended March 26, 1910, in this, to wit: 'That the said alien was a member of the excluded classes, in that he has been convicted of and admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States; that he procured, imported, and brought into the United States a woman for an immoral purpose; that at the time of his entry into the United States he was a person likely to become a public charge; and that he is unlawfully within the United States, in that he secured admission by false and misleading statements thereby entering without the inspection contemplated by law; and may be deported in accordance therewith.' Thereupon, the warrant directed that he be taken to New York and be from there deported to Russia.'

After alluding to a stay directed by the department pending proceedings under the indictment and also to a further stay for ten days to enable Lewis 'to submit additional information,' the trial judge said: 'Lewis, by his attorney, submitted to the department, at Washington, a showing that he had been acquitted on the indictment, and also some character evidence, April 13th, and it is to be assumed after this additional showing the Secretary withdrew the stay, and directed Mr. Frick (the inspector) to execute the warrant immediately.'

J. E. Bland, Asst. U.S. Atty. (Frank H. Watson, U.S. Atty., on the brief), for appellant.

H. P. Wilson and G. W. Moore (Florian, Moore & Wilson, on the brief), for appellee.

Before WARRINGTON and KNAPPEN, Circuit Judges, and KILLITS, District judge.

WARRINGTON Circuit Judge (after stating the facts as above).

The right of deportation was denied on the ground that the department was without jurisdiction. The controlling reasons for so holding were (1) that all the charges except the one concerning the woman depended upon the charge that Lewis' entrance into the United States was on November 17, 1910, while the court was of opinion that since his first entrance occurred September 20, 1904, the three years' clause of the act of Congress began to run at that time and so the period for deportation had expired at the date of the Detroit entrance; (2) that, as the act of importing and bringing into the United States a woman for immoral purposes is denounced by the act as a felony, Lewis must be convicted of the felony before he can be deported on that charge.

The court believed that there was no evidence tending to support any of the charges, except the one concerning the woman. Where there is nothing to support a charge, we agree that the department cannot rightfully issue a warrant to deport; for that would be a clear abuse of power. But, where a fair though summary hearing has been given, in ascertaining whether there is or is not any proof tending to sustain a charge involved in a case like this, it is not open to courts to consider either admissibility or weight of proof according to the ordinary rules of evidence (Lee Lung v. Patterson, 186 U.S. 176, 22 Sup.Ct. 795, 46 L.Ed. 1108), even if it believe the proof was insufficient and the conclusion wrong. The question is whether anything was offered that tends, though slightly, to sustain the charge. United States v. Ju Toy, 198 U.S. 253, 25 Sup.Ct. 644, 49 L.Ed. 1040. As Mr. Justice Holmes said in Chin Yow v. United States, 208 U.S. 13, 28 Sup.Ct. 203, 52 L.Ed. 369:

'But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong.'

It is true that in both of the cases last cited the court was dealing with a question of exclusion of an alien, where by the act in question the decision of the executive officer was made final, but we think the rules there laid down, as well as those in Lee Lung v. Patterson, supra, are in principle applicable here. Section 25, Act Feb. 20, 1907, 34 Stat. 907; Joint Res. No. 34, 33 Stat. 591. We are confirmed in this view by the decision in Bates & Guild Co. v. Payne, 194 U.S. 106, 109, 24 Sup.Ct. 595, 597 (48 L.Ed. 894), where an order of the Postmaster General was under review on appeal in an equity case, and not as here in a habeas corpus proceeding. Justice Brown said:

'The rule upon this subject may be summarized as follows: That, where a decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing.'

When we consider the complicated duties devolved upon the department and the objects sought to be accomplished by their proper discharge, viz., the ascertainment of conditions requiring particular aliens to be deported, we are convinced that it is not open to us to examine, according to technical tests, into the sufficiency of matters regarded by the Secretary of Commerce as proof. Thus interpreting the record, we cannot say that it contains nothing tending to support any of the charges other than the one concerning the woman; and of the latter the court said:

'So far as concerns the main question of fact into which the department undertook to examine, viz., the importing of the woman, I do not see sufficient ground for these complaints, and, if the department had jurisdiction, under the existing circumstances, to hear and determine this question of fact and to deport upon that ground, I should not undertake to review its conclusion.'

We may now consider the grounds stated, upon which the learned trial judge allowed the writ. Section 2 of the act as amended March 26, 1910 (36 U.S.Stat.L. 263, 264), defines certain classes of aliens, who 'shall be excluded from admission into the United States. ' Among these classes are (1) persons likely to become a public charge; (2) persons who have been convicted of, or who admit having committed, a felony or other crime or misdemeanor involving moral turpitude (prior, of course, to entry into the United States); (3) 'persons who procure or attempt to bring in prostitutes or women or girls for the purpose of prostitution or for any other immoral purpose. ' Section 21 of the act (34 Stat.L. 905) vests power in the Secretary of Commerce and Labor to deport an alien who has been found here 'in violation of this act * * * within the period of three years after landing or entry,' and return him 'to the country whence he came. ' Section 3 as amended March 26, 1910, provides that 'whoever shall, directly or indirectly, import * * * into the United States, any alien for the purpose of prostitution or for any other immoral purpose' is guilty of a felony.

Was the period of three years, mentioned in section 21, applicable in this case to Lewis' entry into Detroit, or only to his original entry into New York? It must be conceded that there is a diversity of judicial opinions upon the subject of temporary absence of an alien from this country and his re-entry. The difficulty, of course, arises through varying interpretations of acts of Congress; for the question is one of legislative intent. The power of Congress to prohibit a second or...