Skeffington v. Katzeff, 1508.

• Decision Date: 11 January 1922
• Docket Number: 1508.
• Citation: 277 F. 129
• Court: U.S. Court of Appeals — First Circuit
• Parties: SKEFFINGTON, Immigration Com'r, v. KATZEFF et al.

277 F. 129

SKEFFINGTON, Immigration Com'r, v. KATZEFF et al.

No. 1508.

United States Court of Appeals, First Circuit.

January 11, 1922

Essex S. Abbott, Sp. Asst. U.S. Atty, of Haverhill, Mass. (Robert O. Harris, U.S. Atty., and Lewis Goldberg, Sp. Asst. U.S Atty., both of Boston, Mass., on the brief), for appellant.

Harry Hoffman and Morris Katzeff, both of Boston, Mass. (Hoffman &amp Vernon, of Boston, Mass., on the brief), for appellees.

Before BINGHAM and JOHNSON, Circuit Judges, and BROWN, District Judge.

JOHNSON Circuit Judge.

This is an appeal from a decree of the District Court of the United States for the District of Massachusetts ordering the discharge upon a petition for a writ of habeas corpus of William T. Colyer and Amy Colyer. Frank Mack and Lew Bonder were the relators in another petition and, the issue upon appeal being the same in both cases, they have been heard as one case.

The relators were arrested on January 3, 1920, upon warrants issued by the Department of Labor on the charge that they were included within the class of persons covered by the Act of Congress approved October 16, 1918, Comp. Stat. Ann. Supp 1919, Sec. 4289 1/4b (1), which, so far as material, is as follows:

'Aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized government * * * shall be excluded from admission into the United States.'

The reasons assigned for their arrest and deportation were, in substance, that they were members of or affiliated with an organization that believed in, taught and advocated the overthrow by force and violence of the Government of the United States.

A hearing in accordance with this statute was had before the immigration inspector and his findings were submitted to the Commissioner General of Immigration and the Acting Secretary of the Department of Labor, together with his recommendation that they be deported. His findings and recommendation were reviewed and approved by the Assistant Secretary of Labor and a warrant for the deportation from this country of each of the relators was issued by him.

The District Court has ordered the relators discharged on the ground that there was no evidence before the immigration inspector tending to show that the Communist Party, to which the relators admitted they belonged, believes in, advocates, or teaches the overthrow of the United States government by force or violence, within a fair meaning of the words 'overthrow, force, and violence' as used in this act.

It is conceded that the relators were all aliens, three of them subjects of Great Britain, and one a subject of Russia. It was found by the District Court that they were all afforded a fair hearing before the inspector, and this finding is admitted to have been warranted by the facts.

It is too well settled by the decisions of the Supreme Court of the United States to require any citation of authorities that an alien resident in the United States may be deported for any reason which Congress has determined will make his residence here inimical to the best interests of the government.

Deportation, when ordered by the proper executive officer of the government, is not visited upon the alien as a penalty for any crime, and the fact that the reason assigned for his deportation may constitute a crime under the local law does not make the hearing upon deportation a trial in a criminal case, to be conducted under the rules of evidence that apply to such a trial. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 Sup.Ct. 607, 57 L.Ed. 978; Sibray v. United States, 227 F. 1, 7, 141 C.C.A. 555; United States v. Uhl (C.C.A.) 266 F. 34, 39.

It has also been definitely settled and is not controverted that the decisions of the executive officers charged with the execution of the Deportation Act, if arrived at after a fair hearing and upon substantial evidence and with no abuse of the discretion committed to them by the statute, are final.

In Low Wah Suey v. Backus, 225 U.S. 460, 468, 32 Sup.Ct. 734, 735 (56 L.Ed. 1165), the court said:

'A series of decisions in this court has settled that such hearings before executive officers may be made conclusive when fairly conducted. In order to successfully attack by judicial proceedings the conclusions and orders made upon such hearings it must be shown that the proceedings were manifestly unfair, that the action of the executive officers was such as to prevent a fair investigation or that there was a manifest abuse of the discretion committed to them by the statute. In other cases the order of the executive officers within the authority of the statute is final.'

In United States v. Uhl (C.C.A.) 271 F. 676, a case decided February 2, 1921, in the Second Circuit, it was said:

'Review by the District Court, or on appeal by this court, is limited to habeas corpus. United States v. Sing Tuck, 194 U.S. 161, 24 Sup.Ct. 621, 48 L.Ed. 917; and such review extends only to the inquiry whether the discretionary powers of the executive (large as they are) have been exceeded. There is no judicial power to review or reverse a finding of fact based upon evidence. * * * And this court has recently pointed out that, while we may inquire on habeas corpus as to whether the deportation proceedings have been fair, the rules of evidence do not in strictness apply (Diamond v. Uhl (C.C.A.) 226 F. 34), and the hearing, though it

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