Hays v. Zahariades, 10842.
| Decision Date | 25 May 1937 |
| Docket Number | No. 10842.,10842. |
| Parties | HAYS v. ZAHARIADES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William B. Danforth, Asst. U. S. Atty., of Mason City, Iowa (Edward G. Dunn, U. S. Atty. of Mason City, Iowa, on the brief), for appellant.
L. R. Boomhower, of Mason City, Iowa, for appellee.
Before GARDNER, WOODROUGH, and BOOTH, Circuit Judges.
This is an appeal from an order and judgment sustaining a writ of habeas corpus at the instance of appellee, John Zahariades. Appellant is Divisional Director of Immigration and Naturalization.
John Zahariades, a citizen of Greece, was a resident alien who had been admitted to the United States in 1910. During practically all the time since his admission, he has been engaged in the restaurant business at Mason City, Iowa, where he is the owner of a substantial two-story brick building, in the first story of which he has operated a restaurant, and in the second story of which is a rooming house. He was arrested by Immigration Inspector Carl B. Nelson on August 15, 1935, following which such proceedings were had that he was found guilty of being connected with the management of a house of prostitution, and on June 26, 1936, a warrant of deportation was issued by the Assistant Secretary of Labor. Thereafter, on petition the lower court issued a writ of habeas corpus, and after a return thereto and answer to the petition, and on full hearing, the court ordered petitioner's discharge on the ground that he had not had a fair hearing. This holding is challenged on this appeal.
To avoid confusion, the parties will be referred to as they appeared in the lower court, the appellee being there designated as petitioner and the appellant as respondent.
On August 15, 1935, the petitioner was arrested upon a warrant issued by the Secretary of Labor on the charge that he was an alien connected with the management of a house of prostitution. He was then accorded hearings by the Inspector on the charges against him. These hearings were held at Mason City, Iowa, on August 15, 1935, on August 29, 1935, and on December 19, 1935. At the hearing on August 15, 1935, he was informed that the purpose of the hearing was to afford him an opportunity to show cause why he should not be deported. The warrant of arrest was read to him, and he was given an opportunity of inspecting it. He was advised that he had the right to be represented by counsel, and in response he stated that L. R. Boomhower, Esquire, who was then present, would so represent him. The Inspector then inquired of Mr. Boomhower if he was ready to proceed with the hearing, whereupon counsel asked for a continuance so that he might become acquainted with the case. The continuance was granted, and the hearing was resumed on August 29, 1935.
At the hearing on August 29, 1935, the Inspector produced copies of affidavits made by various parties and designated as Exhibits A, B, C, D, E, F, G, H, I, and J, stating to petitioner and his counsel that, "I hand you herewith all the evidence upon which the warrant of arrest in your case is based, consisting of and designated as follows," etc. The petitioner and his counsel were advised that these affidavits were attached to and made a part of the application for warrant of deportation, and that they would be considered by the Secretary of Labor, together with the record of the hearing, in reaching a decision. The exhibits were ex parte affidavits, taken previously by the Immigration Inspector as a basis for making application for the warrant of arrest. Exhibit A was an affidavit made by the petitioner, and the others were affidavits made by various named parties. Counsel for petitioner objected to each of these exhibits, with the exception of Exhibit A, and the exception was entered on the record. The Immigration Inspector then produced in turn each of the witnesses making the affidavits, with the exception of one who was called at a later hearing, handed him a copy of the statement and asked him if he had signed it, and if it were true and correct. In each instance, except one hereafter noted, the witness answered in the affirmative. The witness Tom Lappis who had made one of the affidavits replied that he wished to change his statement in certain particulars, and was permitted so to do. Each witness, after he stated under oath that the affidavit previously signed by him was true and correct, was then cross-examined by counsel for the petitioner. On cross-examination, the witness Tom Lappis repudiated very substantial and material parts of his statement. At this hearing petitioner called three witnesses and took the stand in his own behalf. At the close of the hearing counsel for petitioner demanded that the witness making the affidavit designed as Exhibit C be also produced for cross-examination, and accordingly at a later date, December 19, 1935, this witness was produced. She was shown copy of the affidavit which she had signed, stated that she had signed it, and that it was true and correct. She was then cross-examined by counsel for petitioner, so that all of the witnesses making the ex parte affidavits appeared at the hearings, stated under oath in the presence of petitioner and his counsel, that the statements contained in the affidavit were true and correct, and were fully cross-examined by counsel for petitioner. At this last hearing petitioner was given the opportunity of introducing any further evidence he might desire, but he answered, through his counsel, that he had nothing further to offer. It was on the record so made that the Immigration Inspector recommended the deportation of petitioner and upon which deportation warrant was issued on June 26, 1936, by the Assistant Secretary of Labor.
The statute under authority of which deportation was ordered is section 155, title 8, U.S.C.A., which, among other things, provides as follows: "* * * any alien who shall be found an inmate of or connected with the management of a house of prostitution * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported."
The charge of unfairness of the hearing urged in the lower court and relied upon here is bottomed on the claim that substantially all of the testimony in behalf of the government was ex parte, taken in secret in advance of the hearing, and at the time of the hearing produced only by copy. The determination of the propriety of deportation is not a prosecution for a crime, but the proceedings are civil in their nature, and hence, the strict rules governing proof in criminal prosecutions do not apply, and a hearing is not necessarily unfair merely because rules of evidence and of procedure applicable to...
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