In re Kosopud
| Decision Date | 12 June 1920 |
| Docket Number | 10419. |
| Citation | 272 F. 330 |
| Parties | In re KOSOPUD et al. |
| Court | U.S. District Court — Northern District of Ohio |
Geo Edwards, of Youngstown, Ohio, for petitioners.
E. S Werts, U.S. Atty., and Richard S. Douglas, Asst. U.S. Atty of Cleveland, Ohio, for respondents.
The petitioners presented a joint application for writ of habeas corpus alleging that they are imprisoned and detained in the county jail of Mahoning county, within this district; that they are thus detained by one J. A. Fluckey, immigration inspector having charge of this district, without authority of law; that they are not charged with the commission of any crime, and are lawfully within the United States; that they were committed to jail without mittimus or other form of legal process or authority, and have been denied their constitutional right to a speedy and fair trial. Upon the filing of this petition, a rule was issued against Benjamin Morris, sheriff of Mahoning county, and J. A. fluckey, immigration inspector, ordering them to appear and show cause why an alternative writ of habeas corpus should not issue. In response thereto, they have each filed a return showing the causes of the detention of the petitioners.
Obviously these petitioners could not properly file a joint petition, as no one has any interest in the illegal restraint of the other. Moreover, the allegations of the petition are so general that a demurrer thereto might lie. Inasmuch, however, as the respondents have not objected to the misjoinder nor demurred to the petition, I have not felt called upon to take notice of these insufficiencies, but have proceeded to hear the case fully upon the evidence, and will now dispose of it upon the merits. The return shows, and the fact is, that Lem Kosopud (also called Sam Kosaput) Alexander Bunda, John Borsokov, and George Androsh, had been discharged, and the warrants of arrest as to them had been canceled previous to the making of the return. The return also shows that Rade Marjanovich and Peter Stefanovich had been released on bail or personal recognizance before the making of the return, and the fact is that the warrants of arrest have heretofore been canceled as to them. Hence no further notice will be taken of their applications.
The return shown, as a reason for the detention of the remaining petitioners, that warrants had been issued against them by the Secretary of Labor, charging that they were aliens, and that they had been found in the United States in violation of the Immigration Act of February 5, 1917, as amended October 16, 1918 (Comp. St. Ann. Supp. 1919, Secs. 4289 1/4b(1)-4289 1/4b(3)). The particular violation of this act charged against each of them is as follows:
'That he is a member of or affiliated with an organization that entertains a belief in the overthrow by force or violence of the government of the United States; that he is a member of or affiliated with an organization that advocates the overthrow by force or violence of all forms of law; that he is a member of or affiliated with an organization that advocates the overthrow by force or violence of the government of the United States; that he is a member of or affiliated with an organization that teaches the overthrow by force or violence of the government of the United States; that he is a member of or affiliated with an organization that teaches opposition to all organized government; and that he is a member of or affiliated with an organization that entertains opposition to all organized government.'
Each and all of them, prior to the hearing before me, had been given hearings before the immigration inspector, and the Secretary of Labor, upon the basis of such hearings and the evidence then taken, had found the charges contained in the warrants to be sustained, and had made a deportation order as to all of them except Mike Hladysh. Since the hearing a final decision has also been made in his case and a deportation order has been issued. The warrants of arrest, the whole proceedings in the hearing before the immigration inspector, and the orders of deportation, have all been exhibited and introduced in evidence. This documentary evidence, together with all the oral evidence introduced on this hearing, have been given careful consideration.
The provisions of section 19, Act of February 5, 1917, as amended by act approved October 16, 1918 (Comp. St. Ann. Supp. 1919, Sec. 4289 1/4b(1)), under which petitioners were arrested, is as follows:
'That aliens who are anarchists; aliens who believe in or advocate the overthrow by force or violence of the government of the United States or of all forms of law; aliens who disbelieve in or are opposed to all organized government; aliens who advocate or teach the assassination of public officials; aliens who advocate or teach the unlawful destruction of property; aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized government, or that advocates the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the government of the United States or of any other organized government, because of his or their official character, or that advocates or teaches the unlawful destruction of property shall be excluded from admission into the United States.'
These acts further provide that any alien found within the United States, no matter when he may have entered, who is at the time of his arrest or hearing within the terms of this act as above quoted, may be arrested, and, if upon hearing found guilty, may be deported. His arrest shall be made upon a warrant issued by the Secretary of Labor. His hearing shall be had before an immigration inspector. The order of deportation is to be made by the Secretary of Labor upon the basis of the evidence taken, and the recommendation, if any, made by the immigration inspector before whom the hearing is had. General rules and regulations have been made under authority of this act for the administration of all the laws relating to the deportation of aliens.
The right of aliens to be admitted to the United States or to remain here, and the proceedings for their arrest, hearing and deportation, have been considered by the courts, and the law relating thereto is no longer open to question. It has been settled by repeated decisions that Congress has power to exclude any and all aliens from the United States; to prescribe the terms and conditions on which they may come in or on which they may remain after having been admitted; to establish the regulations for deporting such aliens as have entered in violation of law, or who are here in violation of law; and to commit the enforcing of such laws and regulations to executive officers. The deportation of an alien who is thus found here in violation of law, or of the conditions prescribed by Congress either as to his right to be admitted or his right to remain, is not a deprivation of liberty without due process of law. It is further settled that a hearing on such proceedings for deporting aliens by the executive officers to whom is committed the administration of the immigration laws may be made conclusive when fairly conducted. Any alien complaining of such proceedings or a deportation order in court must show that the officers conducting them were guilty of manifest unfairness or abused the discretion committed to them, otherwise the order of such executive officers, within the authority conferred by statute, is final and conclusive. It is further settled that the courts will not weigh the evidence upon which executive officers acted, so that if there is any evidence substantially tending to support the ground upon which the order of deportation is based, the finding of such executive officers upon the evidence must be accepted as conclusive and binding upon the courts. Of the numerous authorities supporting these rules, it will be sufficient to cite the following: Turner v. Williams, 194 U.S. 279, 24 Sup.Ct. 719, 48 L.Ed. 979; Low Wah Suey v. Backus, 225 U.S. 460, 32 Sup.Ct. 734, 56 L.Ed. 1165; Guiney v. Bonham (9 C.C.A.) 261 F. 582, 8 A.L.R. 1282. In the light of these rules of law, I have examined the warrants, the proceedings before the immigration inspector, the evidence then taken, and the orders of deportation made by the Secretary of Labor. These warrants appear to have been regularly issued and fully inform the petitioners of the grounds upon which it was asserted that they were unlawfully within the United States. The orders of deportation are regular and in the usual form. The proceedings before the immigration inspector appear to have been in all respects regular and contain...
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State v. Delgado
...Bar Foundation (The Administration of Criminal Justice Series, Arrest, p. 281). For cases supporting the principle see In re Kosopud, 272 F. 330, 336 (D.Ohio 6 Cir.,); People v. Jeffries, 31 Ill.2d 597, 203 N.Ed.2d 396; State v. Pettit, 20 Ohio App.2d 170, 173, 252 N.E.2d 325. We find no er......
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Moraitis v. Delany
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