Kabadian v. Doak

• Decision Date: 17 April 1933
• Docket Number: 5786.,No. 5721-5724,5779,5721-5724
• Citation: 65 F.2d 202,62 App. DC 114
• Parties: KABADIAN v. DOAK, Secretary of Labor, and five other cases.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 114, 65 F.2d 202 (1933)

KABADIAN v. DOAK, Secretary of Labor, and five other cases.

Nos. 5721-5724, 5779, 5786.

Court of Appeals of the District of Columbia.

Argued February 7, 1933.

Decided April 17, 1933.

Rehearing Denied May 5, 1933.

Raymond M. Hudson, of Washington, D. C., for appellants.

Leo A. Rover and J. J. Wilson, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

These are appeals from judgments of the Supreme Court of the District of Columbia sustaining demurrers to petitions for writs of prohibition to prevent the Secretary of Labor from deporting the appellants, and dismissing the petitions.

The cases, in their essentials, being alike, and having been heard together, will be disposed of in one opinion.

The allegations of the petitions are substantially as follows:

Haroutian Kabadian, alias Harry Kabedian, appellant in No. 5721, alleges that he is a subject of Turkey, 24 years old; that he entered the United States at Detroit on April 27, 1926, from Canada, as a student; that he cannot return to Turkey; and that he is a "man without a country"; that there is no treaty between the United States and Turkey at this time and no passport can be obtained by this government for his return; that no bond was required of him on entering the United States; that he knew he had no parents and only $500, with two sisters and a half-brother to depend upon for living and schooling; that on or about August 26, 1930, the appellee, through his agents, illegally arrested or detained him and forced him to give testimony, doing the same thing again on or about January 12, 1931, before the issuance of any warrant for his arrest; that on January 27, 1931, the appellee issued a warrant for his arrest for deportation, and that, at the hearing held on said warrant, the appellee, through his agents, used said testimony against him, over his objection; that on May 5, 1931, appellee issued a warrant to deport him, charging "that he remained in the United States after failing to maintain the exempt status of a student, under which he was admitted"; that said testimony was not substantial and did not support the charge made against him; that in the whole proceedings the appellee exceeded his jurisdiction and acted beyond his authority, in that the appellee is unlawfully interfering with the person, rights, and liberties of petitioner, in excess of his authority in deportation cases.

The appellant Mohamed Abraham, alias Abie Mohamed, alleges that he is a British subject and native of East India, 30 years old; that he lawfully entered the United States at New York, on November 15, 1917, and has not left the United States since that date; that during all the time he has been here he has been working steadily, and for the larger part of the last 8 years he has worked for the Ford Motor Company and has assurances of permanent employment with that company; that appellee, on or about July 7, 1929, issued a warrant against him in excess of his jurisdiction and is now proceeding to deport him, the charge in said warrant being: "That he has been found in the United States in violation of the Immigration Act of February 5, 1917, to wit: That he has been convicted and imprisoned for a violation of section 4 of said act"; that said charge does not state a deportable offense within appellee's jurisdiction, as it does not state that such conviction was within 5 years of the last entry or that there were two convictions, nor does it allege that he was ever both fined and imprisoned, which is the only punishment provided under section 4 (8 USCA § 138); that he has never been fined and imprisoned and there is no evidence that he has; that no criminal charge was ever preferred against him prior to April 2, 1928; that the testimony of the appellee was not sufficient to establish the charge, as made, but it did establish that petitioner had not been convicted and both fined and imprisoned under section 4 of the act of February 5, 1917 (8 USCA § 138); that the appellee is exceeding his jurisdiction in deportation matters, and is unlawfully interfering with the liberty of petitioner by such excess of jurisdiction.

The appellant Ruwin Kowal alleges that he was born June 28, 1909, in the Province of Minsh, Russia; that he is a citizen of Russia, a Jew, and a salesman, speaking four languages; that he landed in Canada April 7, 1928, and shortly afterward came into the United States at Detroit, and was back and forth until the summer of 1929, when he took up his residence with his father and mother, who live in Detroit; that while under age he lived for a while in Poland, but refused to register as a citizen there, and left Poland; that while engaged in business in Detroit, he was arrested by agents of the appellee, without a warrant of any kind, on January 25, 1931, was held incommunicado for 2 days or more and refused counsel; that this arrest was forcible, illegal, and beyond the authority of the appellee; that while so held in said jail the appellee, through his agents, unlawfully, by threats and intimidation forced and compelled him to give a statement which appellee has used and is threatening to use in this proceeding; that on January 27, 1931, a warrant of arrest and deportation was issued by appellee against petitioner, and sent to Detroit, where petitioner was admitted to bail thereunder; that appellee is preparing in excess of his jurisdiction to deport petitioner, but cannot deport him to the country of his citizenship and nativity, as there is no treaty with Russia; and that appellee has no authority to deport him to any other country.

The appellant Celestino Guiseppe Polombo alleges that he is 33 years of age, a citizen of Italy, residing in Detroit; that he entered the United States at Detroit, on March 11, 1924, and has never since left the United States; that on May 21, 1931, appellee issued a warrant for his arrest and deportation, charging "that he was found in the United States in violation of the act of 1924, to wit: In that he was a person likely to become a public charge at the time of his entry into the United States at Detroit, Michigan (erroneously charged to have been about July 1, 1929), and without inspection"; that said warrant and proceedings thereunder are in excess of the jurisdiction of the appellee; that on May 14, 1931, without authority or warrant of arrest, appellee's agents seized petitioner, threw him into jail after coercing him to make certain statements, and held him incommunicado 3 or 4 days, with no charge against him, and by threats and intimidation without advice of friends or counsel forced petitioner to make a statement, on which statement appellee's agents without further evidence, on May 21 or May 22, 1931, issued said warrant of arrest and deportation against petitioner; that on such unlawfully obtained evidence the appellee is preparing and threatening to deport petitioner, which is beyond the jurisdiction and authority of the appellee to do.

The appellant Giovanni Spica alleges that he is a subject of Italy; that he legally entered the United States at New York in August, 1919, and has not since left the United States; that he has a wife and three children in the United States, the children having been born in the United States; that on or about July 3, 1930, when he was incarcerated in the matter here complained of, the appellee, through his agents and inspectors, without any warrant of arrest and deportation, subjected petitioner to an examination when he was deprived and denied the aid, advice, and assistance of friends or counsel, which examinations and the statements obtained thereby, were and are illegal; that said statements and evidence should be returned to the petitioner and destroyed; that on August 21, 1930, appellee issued a warrant of arrest and deportation against petitioner, charging "that petitioner had been convicted under subdivis...