Guiney v. Bonham

• Decision Date: 01 December 1919
• Docket Number: 3384.
• Citation: 261 F. 582
• Parties: GUINEY v. BONHAM, U.S. Inspector of Immigration.
• Court: U.S. Court of Appeals — Ninth Circuit

261 F. 582

GUINEY v. BONHAM, U.S. Inspector of Immigration.

No. 3384.

United States Court of Appeals, Ninth Circuit.

December 1, 1919

George F. Vanderveer and Ralph S. Pierce, both of Seattle, Wash for appellant.

Bert E Haney, U.S. Atty., and Barnett H. Goldstein, Asst. U.S Atty., both of Portland, Or., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The appellant, a native of British Columbia, entered the United States in February or March, 1913. In 1916 he became a member of the Industrial Workers of the World, in which he has held the offices of standing delegate, branch secretary, and traveling delegate. In September, 1918, he became secretary of Lumber Workers' Industrial Union, a branch of the I.W.W., having 35,000 members. In February, 1919, he opened an office for said union in the city of Portland. On February 18, 1919, the Department of Labor issued its warrant of arrest, charging that the appellant had been found advocating or teaching the unlawful destruction of property, in violation of the Immigration Act of February 5, 1917. On this warrant he was granted three hearings, which resulted in an order for his deportation. On appeal to the Department of Labor, the order of deportation was affirmed. The appellant presented to the court below his petition for a writ of habeas corpus. On the hearing the writ was discharged and the appellant was remanded to custody. The appellant appeals.

The appellant contends that deportation under section 19 of the act of February 5, 1917 (39 Stat. 889, c. 29 (Comp. St. 1918 Sec. 4289 1/4jj)), was barred after five years from the date of his entry into the United States. We do not so read the statute. It provides:

'Sec. 19. That at any time within five years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law; any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States; any alien who at any time after entry shall be found advocating or teaching the unlawful destruction of property, or advocating or teaching anarchy, or the overthrow by force or violence of the government of the United States or of all forms of law or the assassination of public officials; any alien who within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.'

It is plainly the intention of the statute to provide for the deportation of any alien who at 'any time after entry' shall be found advocating or teaching the unlawful destruction of property. The five-year limitation expressed in the first clause of the statute is not to be read into the clause under which the appellant is ordered deported.

Again, the order of deportation does not depend upon the law of 1917. Act Oct. 16, 1918, c. 186, 40 Stat. 1012, authorizes the deportation of aliens who advocate or teach the unlawful destruction of property and declares:

'The provisions of this section shall be applicable to the classes of aliens mentioned in this act irrespective of the time of their entry into the United States.'

The law of 1918 was in force prior to the institution of proceedings against the appellant. The fact that the warrants of arrest and of deportation are in terms based upon section 19 of the act of February 5, 1917, does not render the act of 1918 inapplicable to the case. The principle involved is similar to that which obtains in criminal cases in which it is held that the statute on which an indictment is founded must be determined as a matter of law from the facts charged, which facts may bring the offense within an existing statute, although the indictment in terms bases the charge upon another statute. Williams v. United States, 168 U.S. 382, 18 Sup.Ct. 92, 42 L.Ed. 509; United States v. Nixon, 235 U.S. 231, 35 Sup.Ct. 49, 59 L.Ed. 207; Vedin v. United States, 257 F. 550, . . . C.C.A. . . . .

It has been repeatedly held that the warrant of arrest for deportation of an alien is sufficient if it give him adequate information of the acts relied upon to bring him within the excluded classes, and to enable him to offer testimony to refute the same at the hearing, and that it need not have the formality and particularity of an indictment. United States v. Uhl, 211 F. 628, 128 C.C.A. 560; United States v. Williams, 200 F. 538, 118 C.C.A. 632; Healy v. Backus, 221 F. 358, 137 C.C.A. 166; Ex parte Hamaguchi (C.C.) 161 F. 185; Siniscalchi v. Thomas, 195 F. 701, 115 C.C.A. 501; Toy Tong v. United States, 146 F. 343, 76 C.C.A. 621.

It is to be observed, also, that this being a habeas corpus proceeding, section 761 of the Revised Statutes (Comp. St. Sec. 1289) requires the court, justice, or judge granting the writ 'to dispose of the party as law and justice require,' which means as law and justice require at the time of the hearing. Iasigi v. Van de Carr, 166 U.S. 391, 17 Sup.Ct. 595, 41 L.Ed. 1045; Motherwell v. United States, 107 F. 437, 48 C.C.A. 97. In Nishimura Ekiu v. United States, 142 U.S. 651, 12 Sup.Ct. 336, 35 L.Ed. 1146, the court said:

'A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment.' The appellant contends that the hearing before the immigration inspector was unfair, in that he was not represented by an attorney nor informed of his right to counsel until three-fifths of the testimony had been taken. This does not render the hearing unfair. In Low Wah Suey v. Backus, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165, it was held that the preliminary examination of an alien without counsel is permitted, and that it is sufficient if at subsequent stages the alien has counsel. That case was followed by this court in Mok Nuey Tau v. White, 244 F. 742, 137 C.C.A. 190. The appellant, on being told that he was entitled

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