Sibray v. United States ex rel. Plichta

• Decision Date: 15 July 1922
• Docket Number: 2850.
• Citation: 282 F. 795
• Parties: SIBRAY, Immigration Inspector, v. UNITED STATES ex rel. PLICHTA.
• Court: U.S. Court of Appeals — Third Circuit

282 F. 795

SIBRAY, Immigration Inspector, v. UNITED STATES ex rel. PLICHTA.

No. 2850.

United States Court of Appeals, Third Circuit.

July 15, 1922

Walter Lyon, U.S. Atty., and Warren H. Van Kirk, Sp. Asst. U.S Atty., both of Pittsburgh, Pa., for appellant.

Robert M. Ewing, of Pittsburgh, Pa., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

This is an appeal from an order of the District Court discharging the relator on a writ of habeas corpus. The facts, so far as material to this case, are: The relator, who is 39 years of age, immigrated to this country from Czecho-Slovakia in 1889. Between that time and 1914 he returned to his native country two or three times, and at one time remained there about 4 years. In 1914 he went back and served in the Austrian army until 1920, when he returned to this country. He was married in 1905, and his wife had four children, all of whom died. In 1915 his brother, Andreos, who was in the same army, was killed, and left a widow, Anna Maria Plichta. George Plichta the relator, had immoral relations with his brother's widow. Since his return in 1920, he corresponded with her and finally sent her $240 to pay her fare here. On his advice she posed as his wife, and he testified at Ellis Island on her arrival that she was his wife, thinking it would facilitate her admission into the country. He intended to get a divorce, he said, and marry her. His wife, who was living in New York, appeared and testified against her husband. He was arrested on a departmental warrant, charging him with having 'procured or attempted to procure or import a woman for an immoral purpose,' contrary to the Act of February 5, 1917 (39 Stat. 889), which provides in section 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4jj) that:

'Any alien who shall import or attempt to import any person for the purpose of prostitution or for any other immoral purpose * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.'

The act further provides that the Commissioner General of Immigration, under the direction of the Secretary of Labor, 'shall establish such rules and regulations * * * as he shall deem best calculated for carrying out the provisions of this act. ' Section 959. One of the rules thus established was Immigration Rule 5, subd. (b), which provides that:

'Preferably, at the beginning of the hearing, under the warrant of arrest, or, at any rate, as soon as such hearing has proceeded sufficiently far in the development of the facts to protect the government's interest, the alien shall be allowed to inspect the warrant of arrest and all the evidence on which it was issued.'

Another rule was No. 22, subd. 3:

'The application must state facts showing prima facie that the alien is within one or more of the classes subject to deportation after entry, and, except in cases in which the burden of proof is upon the alien (Chinese) involved, should be accompanied by some substantial supporting evidence. If the facts stated are within the personal knowledge of the inspector reporting the case, they need not, of course, be in affidavit form. But if based upon statements of persons not sworn officers of the Government except in cases of public charges covered by subdivision 4 hereof, the application should be accompanied by the affidavit of the person giving the information or by a transcript of a sworn statement from that person by an inspector.'

After the hearing before the Immigration Inspector, a warrant of deportation was issued by the Acting Secretary of Labor. Thereupon the alien filed in the District Court a petition for writ of habeas corpus on the ground that he was not given an opportunity to produce testimony and that he was not fully advised of nor granted his rights under the rules and regulations of the department. The writ was issued, and upon hearing at the return that court made an order discharging him, because he was not allowed to inspect the warrant of arrest and the evidence on which it was based, and that--

'the warrant of arrest was not supported by some substantial evidence as required by the rules of the department, * * * and that the alien did not have a full, fair and impartial hearing after he had been arrested.'

Whether or not evidence is sufficient to justify deportation is for the determination of the department, and its decision on the sufficiency of facts is final, and the District Court is without jurisdiction to review the sufficiency of the evidence on which the order of deportation is based, if the alien has had a hearing according to law. The Japanese Immigrant Case, 189 U.S. 86, 23 Sup.Ct. 611, 47 L.Ed. 721. But if it appears that the procedure prescribed by law for the...