Howes v. Tozer

• Citation: 3 F.2d 849
• Decision Date: 17 February 1925
• Docket Number: No. 1805.,1805.
• Parties: HOWES, Immigration Inspector, v. TOZER.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

3 F.2d 849 (1925)

HOWES, Immigration Inspector, v. TOZER.

No. 1805.

Circuit Court of Appeals, First Circuit.

February 17, 1925.

John F. A. Merrill, Sp. Asst. U. S. Atty., of Portland, Me., for appellant.

Joseph E. F. Connolly, of Portland, Me. (Roger O'Donnell, of Washington, D. C., on the brief), for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an appeal from a decree of the federal District Court for the District of Maine, entered August 6, 1924, in a habeas corpus proceeding brought by the appellee, Tozer, against the immigration inspector in charge at Portland, in whose custody he was held under a deportation warrant issued by the Secretary of Labor. The District Court took jurisdiction, determined the case on its merits, and ordered Tozer's discharge. The case having been heard on its merits, the respondent properly appealed the entire case to this court, where it may be reviewed on the question of jurisdiction, as well as on the merits. Tang Tun v. Edsell, 223 U. S. 673, 682, 32 S. Ct. 359, 56 L. Ed. 606.

Tozer is an alien, a native of Canada, who came to the United States in 1912, and has lived here ever since. In January, 1923, he went to Canada for a visit and at the expiration of a day or two returned to the United States. At that time, and at the time of his original entrance in 1912, he complied with all the requirements of law for admission to the country.

In July, 1923, the Secretary of Labor issued a warrant for his arrest in deportation proceedings, upon the grounds (1) that "he was a person likely to become a public charge at the time of his entry; and (2) that he has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to his entry, to wit, bribery, conspiracy to defraud, or extortion."

Several hearings were held under this warrant before the inspector, at which the petitioner was represented by counsel. It appeared that in 1922 indictments were returned in the federal District Court of Maine against certain persons by the name of Ruth and Fry, who were United States narcotic inspectors, for conspiracy to defraud the government and to extort money from physicians and others, by threats of prosecution for violation of the Narcotic Drug Act (Comp. St. §§ 6287g-6287q). In one of the indictments against Ruth and Fry, the petitioner was named as one of the conspirators, but not as one of the defendants. When this indictment was tried in December, 1922, the petitioner testified as a government witness. His testimony was given on the understanding with the United States attorney that he would not be prosecuted if he so testified. The testimony given by Tozer at that time was used as evidence against him at the hearing on the warrant of arrest on the deportation proceedings. At the conclusion of the hearing in the deportation proceedings, the inspector found, while Tozer did not in so many words admit the commission of a felony or other crime or misdemeanor involving moral turpitude, "that prior to his departure from the United States he admitted that he was guilty of extortion as evidenced by his testimony given as a witness" in the case against Ruth and Fry, and that as there were outstanding indictments against Tozer, on which he might be convicted, he was therefore a person likely to become a public charge.

The matter was then taken up by the Board of Review, which found that the alien was not likely to become a public charge, that there was no evidence that he had ever been convicted of any crime, and that although the record of the inspector did not disclose that the alien in so many words admitted the commission of any of the offenses charged, the transcript of Tozer's testimony in the case against Ruth and Fry, and that given before the immigration inspector, sustained the charge that he had admitted the commission of an offense involving moral turpitude as charged in the warrant of arrest, and recommended that he be deported.

On appeal to the Secretary of Labor, the finding of the Board of Review that Tozer "has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States, to wit, bribery, conspiracy to defraud, or extortion," was approved, and a warrant of deportation was issued on February 18, 1924.

The provisions of law under which the proceeding was had and the deportation ordered are found in section 19 of the Act of February 5, 1917 (39 Stat. 889 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼jj), the portions of which here material read as follows:

"Sec. 19. That at any time within five years after entry, * * * except as hereinafter provided, any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry, * * * any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: * * * Provided further, that the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the state, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this act. * * * In every case where any person is ordered deported from the United States under the provisions of this act, or of any law or treaty, the decision of the Secretary of Labor shall be final."

The District Judge, in construing this act, held that the word "admits" in the clause, "any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude," means "an unequivocal acknowledgment of guilt, an...