Roux v. Commissioner of Immigration at Port of San Francisco

• Decision Date: 24 February 1913
• Docket Number: 2,164.
• Citation: 203 F. 413
• Parties: ROUX v. COMMISSIONER OF IMMIGRATION AT PORT OF SAN FRANCISCO.
• Court: U.S. Court of Appeals — Ninth Circuit

203 F. 413

ROUX v. COMMISSIONER OF IMMIGRATION AT PORT OF SAN FRANCISCO.

No. 2,164.

United States Court of Appeals, Ninth Circuit.

February 24, 1913

This case comes here on appeal prosecuted by Alexandrine Roux from a judgment denying her release upon writ of habeas corpus she being held by appellee for deportation as being an alien unlawfully within the United States, in that she has been 'found employed by, in, or in connection with, a house of prostitution, or resort habitually frequented by prostitutes or where prostitutes gather.' The petition for the writ shows, among other things, that petitioner has for more than three years last past continuously next preceding the filing of the petition and the date of her arrest been an actual resident and denizen of and in the city and county of San Francisco, state of California, and has not within said time changed her said residence or domicile; that petitioner lawfully came into the United States from the republic of France about ten years ago, landing at New York about January 2, 1902, and thereafter came to San Francisco, which was more than three years ago; that about October 1, 1911, the Commissioner of Immigration at San Francisco unlawfully and by force arrested and imprisoned petitioner and now holds her in custody, and threatens to and will deport her, unless stayed by an order and judgment of this court; that petitioner is not a prostitute, but is a reputable woman, but is accused on the ground that she is employed by, in, and in connection with, a house of prostitution solely and exclusively as a cook, in alleged violation of section 2 of the act of Congress of March 26, 1910 (Act March 26, 1910, c. 128, 36 Stat. 264 (U.S. Comp. St. Supp. 1911, p. 502)); 'that at the hearing held by said Commissioner of Immigration your petitioner was denied the right to have an attorney or legal counsel to represent her at every or any stage of the proceedings; that she was advised that it was not necessary to have the services of an attorney or legal adviser to defend her; that, on the contrary, your petitioner by and through said Immigration Commissioner, his subordinate officers and employes, was forced to submit to an inquisition and compelled to answer the interrogatories of said officers without being allowed the right of counsel, or any attorney to represent her;' that said charge was and is untrue and that petitioner was ready to prove that she had resided within the United States, at San Francisco, for the period of time claimed by her; that she did not come within the provisions of the law invoked for her deportation; and that the provisions of said act of March 26, 1910, in so far as they apply to petitioner, are unconstitutional and void.

Petitioner further alleges that she was not given a full or fair or any legal hearing before the Commissioner of Immigration, was denied the right of appeal to the Secretary of Commerce and Labor, and that such hearings as were had were merely private investigations made without petitioner's consent, and without her presence or her being represented by counsel. Wherefore she prayed that a writ of habeas corpus issue.

On October 24, 1911, the petitioner was brought before Inspector F. Watts on a warrant of arrest and made a statement under oath, P. Lohse acting as interpreter, from which it appears that her name is Alexandrine Roux, a widow; that she has two daughters, one being with her in San Francisco, and the other in France; that she lives in San Francisco, 1842 Mason street, with her daughter; that she lives in San Francisco, 1842 Mason street, ago; that she has been back to France, departing therefor April 13th, but returned again to the United States, arriving in New York August 29, 1911; that she has always worked for a living, her occupation being a cook, and has 'always worked in houses of prostitution, because the wages there are a good deal higher than in other places,' and she needed the money, but that she has never practiced prostitution, and did not know that the law prohibited aliens from working in or around houses of prostitution; that she had been working in Madam Nana's house only three weeks as cook and chambermaid.

At the end of the statement petitioner was informed by the inspector as follows: 'By order of the Secretary of Commerce and Labor, in a telegram dated October 21, 1911, you have been arrested on the charge that you are an alien employed by, in, or in connection with, a house of prostitution. You have the right to be represented by counsel and to see all the evidence against you. You will also be enlarged upon furnishing satisfactory bond in the sum of one thousand dollars. Do you desire to avail yourself of the right of counsel? ' To which she replied: 'As soon as my friends come, I will be able to decide.'

A continuation of the hearing was had at Angel Island, October 30th, before Inspector Ainsworth. The petitioner produced two witnesses in her behalf, namely, A. Esmiol and William M. Pellan. Esmiol had known petitioner about nine years, and testified that her present occupation was a cook in a sporting house; that she had been a cook in such houses for about five years; and that he knew her to be a good woman, 'a thorough good and honest woman. ' Pellan had known the witness ten years, and testified that she was cooking in a sporting house, but that she was 'a correct woman in every way. ' Thereupon the record in the case was transmitted by the Commissioner to the honorable Secretary of Commerce and Labor, with a recommendation that a warrant of deportation issue. Upon the proofs thus rendered, the honorable Secretary of Commerce and Labor found that petitioner was in the United States in violation of the act of Congress approved February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U.S. Comp. St. Supp. 1911, p. 499)), as amended by the act of May 26, 1910, and she was directed to be deported.

In the case at bar the cause went to a special examiner to take testimony and report as to the facts. Rosalie Roux, the daughter of petitioner, there testified that she and Mr Lombard went to see the inspector, Mr. Watts (this after the petitioner had made her statement, but upon the same day); that she had a conversation with him (Watts); that she asked him if it was necessary for her to get a lawyer; and...