Tassari v. Schmucker

• Decision Date: 07 November 1931
• Docket Number: No. 3218.,3218.
• Citation: 53 F.2d 570
• Parties: TASSARI v. SCHMUCKER, District Director of Immigration, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

53 F.2d 570 (1931)

TASSARI v. SCHMUCKER, District Director of Immigration, et al.

No. 3218.

Circuit Court of Appeals, Fourth Circuit.

November 7, 1931.

J. L. Morewitz, of Norfolk, Va. (Morewitz & Morewitz, of Newport News and Norfolk, Va., on the brief), for appellant.

Robt. H. Talley, U. S. Atty. (Alvah H. Martin, Asst. U. S. Atty., both of Norfolk, Va., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.

CHESNUT, District Judge.

The appellant, who is admittedly an alien, is in custody under a warrant for deportation issued by the Acting Secretary of Labor. He petitioned the District Court for a writ of habeas corpus for his release. The hearing resulted in a dismissal of the petition and a remand of the appellant to the custody of the District Director of Immigration for deportation. This appeal has been taken from the order of dismissal and remand, which also stayed actual deportation pending appeal.

The warrant for deportation states that the cause for deportation is that the alien (who entered this country in 1906) "has been sentenced, subsequent to May 1, 1917, to imprisonment, more than once for a term of one year or more for the commission subsequent to his entry of a crime involving moral turpitude, to wit, entering with intent to steal." The authority for deportation of aliens for the stated cause is found in title 8, § 155, of the United States Code Annotated, which also provides as follows: "In every case where any person is ordered deported from the United States under the provisions of this subchapter, or of any law or treaty, the decision of the Secretary of Labor shall be final." The existence of the cause for deportation was found as a fact by the Department of Labor as a result of a hearing given to the alien at which he was represented by counsel.

The only questions for our consideration are whether the record shows the alien did have a fair hearing; whether the determination of fact by the Department is supported by substantial evidence; and whether the law was correctly applied by the Department of Labor. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 47 S. Ct. 302, 71 L. Ed. 560; Zakonaite v. Wolf, 226 U. S. 272, 285, 33 S. Ct. 31, 57 L. Ed. 218; Lewis v. Frick, 233 U. S. 291, 300, 34 S. Ct. 488, 58 L. Ed. 967; United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221; Mason v. Tillinghast, 27 F.(2d) 580 (C. C. A. 1st). The contention urged by counsel for the appellant is that the hearing was not fair because the evidence before the Inspector of Immigration acting for the Department of Labor was legally insufficient to establish the fact that the appellant had been twice sentenced.

To the petition for the writ of habeas corpus the respondent the Director of Immigration filed an answer justifying the warrant for deportation, and as exhibits therewith, a complete record of the deportation proceedings including a stenographic report of the testimony taken at the hearing given the appellant, and as a part thereof, certificates (under seal of the court) of the clerk of the court of oyer and terminer, general jail delivery and quarter sessions of the peace, of the city and county of Philadelphia, showing that on November 16, 1917, Francesco Tassari (on Bill No. 241) had been convicted of "entering with intent to steal" and sentenced to the State Penitentiary for a period of not less than two years and six months, and not more than three years; and that on January 18, 1918, one Frank Ticcro had been convicted of "entering with intent to steal" and sentenced to the State Penitentiary for a period of not less than two years nor more than three years, to run concurrently with sentence imposed on November 16, 1917, on Bill 241.

The important question at the hearing was the identity of the appellant with the defendants named in these two criminal cases. The stenographic report of the testimony taken shows that the appellant admitted that he had been known by the names of the persons so sentenced and that he had been convicted and sentenced in the first case, and brought into the court on the second case, but he stated in effect he did not understand just what had happened in the disposition of the second case; and in terms denied the second sentence. He did not offer then, and does not now offer, to show that in fact he was not the person named in the indictments. He was represented by counsel at the hearing, and it does not appear that they made objection to the legal insufficiency of the clerk's certificates as evidence of the two sentences. The only objection that could have been made to the certificates was the technical one that they were not the full record of the two cases and were not exemplified under the act of Congress. Later, and before final hearing in the District Court, the respondent, the District Director of Immigration, obtained and filed with his supplemental answer exemplified copies of the indictments and docket entries, showing the sentences in the two cases; and at the hearing in the District Court the appellant testified more fully concerning his relation to the cases, from which it appears beyond any reasonable doubt that he was the person convicted and sentenced in both cases although under different names.

But apart from the evidence produced in the District Court it is our opinion that the conclusion reached by the Department of Labor as a result of the hearing given the alien was supported by substantial evidence. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 47 S. Ct. 302, 71 L. Ed. 560. While it is well settled that a fair hearing to the alien is a condition precedent to deportation (Kwock Jan Fat v. White, 253 U. S. 454, 458, 464, 40 S. Ct. 566, 64 L. Ed. 1010; Kaoru Yamataya v. Fisher, 189 U. S. 86, 23 S. Ct. 611, 47 L. Ed. 721), it is also well settled that the hearing may be summary, and the technical rules of evidence necessarily observed in a judicial proceeding are not applicable. Morrell v. Baker, 270 F. 577 (C. C. A. 2nd). The nature of the proceeding is civil and not criminal. United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221; Mahler v. Eby, 264 U. S. 32, 39, 44 S. Ct. 283, 68 L. Ed. 549. Although the clerk's certificates not having been exemplified would not have been technically admissible against the appellant in a plenary judicial proceeding, they constituted substantial evidence for consideration of the Department in the summary proceeding. It was so held by the Circuit Court of Appeals for the Sixth Circuit in Siniscalchi v. Thomas, 195 F. 701, with respect to a similar certificate.

We have carefully examined the full stenographic record of the hearing given the alien to ascertain if it was in all respects fair in accordance with the standards of fundamental justice associated with the conception of due process of law. Kwock Jan Fat v. White, ...