Murdoch v. Clark, 2618.

• Decision Date: 03 November 1931
• Docket Number: No. 2618.,2618.
• Citation: 53 F.2d 155
• Parties: MURDOCH v. CLARK.
• Court: U.S. Court of Appeals — First Circuit

53 F.2d 155 (1931)

MURDOCH v. CLARK.

No. 2618.

Circuit Court of Appeals, First Circuit.

November 3, 1931.

Harry Hoffman, of Boston, Mass., for appellant.

Edward F. McElroy, Asst. U. S. Atty., of Providence, R. I. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., on the brief), for appellee.

Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.

WILSON, Circuit Judge.

The petitioner is an alien. He was detained on a warrant of deportation after a hearing based upon charges, among others, that he was a member of an organization, or affiliated with an organization, association, or group which teaches, advocates, or advises the overthrow of the government of the United States by force and violence, and also that he was a member of or affiliated with an organization, society, or group which publishes, circulates, or distributes written or printed matter which teaches or advocates or advises the overthrow of the government of the United States by force and violence.

The alien, following his detention on the warrant of deportation, petitioned the District Court of Rhode Island for a writ of habeas corpus upon the ground that the hearing before the inspector of immigration was unfair and the charges were not sustained by any competent evidence.

The petition for writ was denied and the matter is before this court on appeal, the alien assigning as errors that the District Court erred in ruling that there was a fair hearing before the immigration officials, and that there was competent evidence to sustain the charges.

Counsel for the alien urges that the hearing before the inspector of immigration was unfair since an amendment containing the charges on which the order of deportation is based was not seasonably presented to him; and, further, that at his request a subpœna was not issued to summon witnesses by whom he expected to prove that certain pamphlets, letters, and papers received by the inspector as evidence were unlawfully seized, if not in their presence, at least under the direction of federal officers; and that there was no competent evidence to support the charges against the alien. The first ground is without merit, as no objection was raised at the time on this ground, and the hearing was adjourned from time to time and the alien given sufficient time to meet the new charges.

It is true that deportation without a fair hearing or unsupported by any evidence is a denial of due process, which may be corrected on habeas corpus. But a want of due process is not established by showing merely that the decision was erroneous, or that incompetent evidence was received and considered. The proceedings in deportation hearings are of a summary nature, are not criminal, are not required to be conducted according to the usual proceedings in courts of law, nor confined to the strict rules of evidence enforced in the courts.

Upon a review on habeas corpus, it is sufficient if there was some evidence from which the conclusion of the administrative tribunal could be deduced, and that it committed no error so flagrant as to convince a court of the essential unfairness of the trial. Tisi v. Tod, 264 U. S. 131, 133, 44 S. Ct. 260, 68 L. Ed. 590; U. S. ex rel. Vajtauer v. Com'r of Immigration, 273 U. S. 103, 106, 47 S. Ct. 302, 71 L. Ed. 560; Low Wah Suey v. Backus, 225 U. S. 460, 468, 32 S. Ct. 734, 56 L. Ed. 1165; Bilokumsky v. Tod, 263 U. S. 149, 154-157, 44 S. Ct. 54, 68 L. Ed. 221: "To render a hearing unfair the defect, or the practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process. * * * The object of a writ of habeas corpus is to ascertain whether the prisoner can lawfully be detained in custody; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment." Bilokumsky v. Tod, supra, pages 157, 158 of 263 U. S., 44 S. Ct. 54, 57.

The alien entered this country in 1923. He has since been actively engaged from time to time in organizing mass groups of labor in opposition to the American Federation of Labor, and in conducting or advising in labor strikes. He admitted membership at one time in the Workers' Party of America, which was affiliated with the Communist Party, and sent...