Kjar v. Doak

• Decision Date: 18 October 1932
• Docket Number: No. 4834.,4834.
• Citation: 61 F.2d 566
• Parties: KJAR v. DOAK, Secretary of Labor, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

61 F.2d 566 (1932)

KJAR v. DOAK, Secretary of Labor, et al.

No. 4834.

Circuit Court of Appeals, Seventh Circuit.

October 18, 1932.

Albert Goldman and David J. Bentall, both of Chicago, Ill., for appellant.

Dwight H. Green, U. S. Atty., and Walter E. Wiles, Asst. U. S. Atty., both of Chicago, Ill., and Robert D. Ross, Asst. U. S. Atty., of Evanston, Ill., for appellees.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

SPARKS, Circuit Judge.

This is an appeal from an order of the District Court denying appellant's petition for a writ of habeas corpus, arising out of an order of deportation.

Appellant was arrested on a warrant issued by the Secretary of the United States Department of Labor, which charged him with being a member of, or affiliated with, an organization, association, society, or group that advises, advocates, or teaches opposition to all organized government, and with being a member of, or affiliated with, an organization, association, society, or group that causes to be written, circulated, distributed, printed, published, or displayed written or printed matter advising, advocating, or teaching the overthrow by force or violence of the government of the United States, in violation of section 137 (c) (d) (e), title 8, U. S. C. (8 USCA § 137 (c, d, e).¹

During the hearing which ensued before the immigrant inspector, and as a part of said proceedings, there was a further charge lodged against appellant by the Department of Labor to the effect that appellant was then in the United States in violation of the Immigration Act of 1924, 8 U. S. C. § 213 (a) (1), 8 USCA § 213 (a) (1), in that, at the time of his entry into the United States, subsequent to July 1, 1924, at an unknown port, he was not in possession of an unexpired immigration visé, and that he had been found in the United States in violation of the Immigration Act of February 5, 1917, 8 U. S. C. § 155, in that he entered without inspection.

Upon a hearing before the inspector, the record thereof was submitted to the Secretary of Labor, who found: (1) That appellant, at the time of his entry, was not in possession of an unexpired immigration visé. (2) That he entered without inspection. (3) That he is a member of, and affiliated with, an organization, association, society, or group, that causes to be circulated, distributed, printed, published, and displayed printed matter advising, advocating, and teaching the overthrow by force or violence of the government of the United States, and that he is a member of an organization that believes in and advocates the overthrow by force or violence of the government of the United States.

A warrant containing said findings was accordingly issued, by virtue of which appellant was taken into custody. He obtained a writ of habeas corpus, which writ upon hearing was discharged.

Appellant's first objection is directed to the form of the charge in the original warrant of arrest, in that the charge is made in the alternative; that is to say, the conjunctions used are disjunctive rather than conjunctive. Such use is for the purpose of connecting descriptive words or phrases of synonymous import, and will not be considered as constituting alternative charges. It will be observed that the finding in the warrant of deportation corrects this alleged defect, and, inasmuch as appellant did not raise the objection until after the warrant of deportation was served, he will be considered as having waived the alleged error.

The other alleged errors relied upon arise out of the conduct of the hearing before the immigration inspector, the findings of the Secretary of Labor, and the judgment of the District Court.

In the review of an executive decision, such decision will not be disturbed by the court if the parties concerned were afforded a fair hearing and if such decision is supported by substantial evidence. Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; Prentis v. Cosmas (C. C. A.) 196 F. 372; Domenici v. Johnson (C. C. A.) 10 F.(2d) 433.

In a deportation proceeding before an executive officer, he is not bound to observe the strict rules of evidence as enforced by judicial tribunals, and the improper admission or rejection of hearsay evidence is not a ground for reversal of the action of the executive which has not resulted in a denial of justice. Bilokumsky v. Tod, 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221; Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369.

The evidence before the District Court consisted of the record made at the hearing before the immigrant inspector, at which appellant and his counsel were present. The evidence, in part, was to the effect that appellant is a native of Denmark, and first entered the United States on or about October 1, 1914; that early in 1928 he went to Russia and later to Denmark, and that in the latter part of the following June he entered the United States at an unknown place. Those facts appellant refused to admit or deny; but he admitted he was an alien, and was secretary and organizer for "The Trade Union Unity League," and was a field organizer for that league. He also stated that that organization is affiliated with the Red International Union Labor, which has its headquarters at Moscow, Russia. He further stated that at the time his testimony was given he was a member of the Communist Party of America; that he subscribed to the principles and teachings of the Communist Party as far as he understood them; and that the Communist Party is a world-wide party having a central committee constituted of delegates from all Communist Parties over the entire world, and having its headquarters at Moscow.

There was introduced in evidence a pamphlet published by Workers' Library Publishers, Inc., of New York City, entitled "Programme of the Communist International, Together with the Statutes of the Communist International." From page 85 of that pamphlet we quote the following:

"The Communist International — the International Workers' Association — is a union of Communist Parties in various countries; it is a World Communist Party. * * *

"Each of the various Parties affiliated to the Communist International is called the Communist Party of (name of country) (Section of the Communist International). In any given country there can be only one Communist Party affiliated to the Communist International and representing its Section in that country.

"Membership in the Communist Party and in the Communist International is open to all those who accept the programme and rules of the given Communist Party and of the Communist International, who join one of the basic units of a Party, actively work in it, abide by all the decisions of the Party and of the Communist International, and regularly pay Party dues."

From pages 33, 34, and 35 of the same pamphlet there is found the following language:

"The conquest of power by the proletariat is a necessary condition precedent to the growth of socialist forms of economy and to the cultural growth of the proletariat, * * *

"The conquest of power by the proletariat does not mean peacefully `capturing' the ready-made bourgeois State machinery by means of a parliamentary majority. * * * The conquest of power by the proletariat is the violent overthrow of bourgeois power, the destruction of the capitalist State apparatus (bourgeois armies, police, bureaucratic hierarchy, the judiciary, parliaments, etc.), and substituting in its place new organs of proletarian power, to serve primarily as instruments for the suppression of the exploiters."

There was likewise introduced in evidence a pamphlet entitled "The Trade Union Unity League, Affiliated to R. I. L. U. Its Program, Structure, Methods and History." It purports to have been published by that League in 1929. There was also introduced in evidence the "10th Anniversary Souvenir Book" of the Communist Party, issued by the executive committee of that party at Chicago in September, 1929. The import of the two last-named exhibits is quite similar to that of the program of the Communist International.

It is first contended by appellant that the Communist Party is not a party of such political violence as to bring its alien members within the purview of 8 U. S. C. § 137 (8 USCA § 137), because it does not advocate initial violence. He insists that the Communist Party's program contemplates a resort only to argument and persuasion until such time when that party shall be in control of the government; and, if and when such time arrives the owners of capital refuse to be peaceably dispossessed of their property, as the Communist Party anticipates will be the case, then and in that event force and violence will be resorted to by that party in order to accomplish its end.

The programs of the Communist International, the Trade Union Unity League, and the Communist Party of America, as shown by the evidence, do not warrant such construction; but, on the other hand, they are quite convincing of the fact that the Communist Party believes and advocates the use of force and violence whenever...