Thack v. Zurbrick, 5834

• Citation: 51 F.2d 634
• Decision Date: 30 June 1931
• Docket Number: No. 5834,5835.,5834
• Parties: THACK et al. v. ZURBRICK, District Director of Immigration.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

51 F.2d 634 (1931)

THACK et al. v. ZURBRICK, District Director of Immigration.

Nos. 5834, 5835.

Circuit Court of Appeals, Sixth Circuit.

June 30, 1931.

Benjamin A. Rossin, of Detroit, Mich. (Catherine G. Herlehy, of Detroit, Mich., on the brief), for appellants.

W. G. Comb, of Detroit, Mich. (Gregory H. Frederick, of Detroit, Mich., on the brief), for appellee.

Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.

DENISON, Circuit Judge.

These aliens, now husband and wife, came from Russia (territory now Poland), to the United States in 1912 or 1913. They were married at Lynn, Mass., where they continued to reside and where a child was born. They were apparently hard working and thrifty, and had supported themselves without difficulty. In February, 1921, the three went to Poland to visit relatives. They neglected to obtain a certificate, which apparently they could have had for the asking, which would have entitled them to re-entry within a year. In the latter part of 1921, desiring to return, and knowing that passports would be required, they went to the American consul, who told them he would give them a visa, but that they must first get passports from the Polish government. These could not be obtained. The reason is unknown, but it was most probably because they were not Polish citizens. After repeated failures to get these passports, or to get any papers from the American consul unless they first had passports, the husband, then called James Yafimetz, came alone to Canada, arriving there in January, 1922; and, being told that he could not be passed into the United States without any passport, he walked across the line, and, without inspection, returned to his home in Lynn. Later he sent for his wife and child, and in July, 1922, learning that they were to arrive in Quebec, he went up to meet them. Anticipating trouble on entering Canada, he again walked across the line without challenge. He met them in Quebec and brought them back on the train to the last Canadian station before reaching the Vermont border. Here they all disembarked and he sought advice from the American consular agent at this station, as he formerly had at another station, as to what he should do to get his family back to their home in Massachusetts. He apparently thought that, if the circumstances were once understood, they would be admitted. He was advised to go to the immigration inspector at Newport, Vt., and take the matter up. Newport was some six miles south of the border and was the immigration station in that neighborhood, where immigrants were inspected and passed or rejected, excepting as far as this could be done by assistants upon the train. When he finally learned that nothing could be done excepting in this way, it was rather late in the evening and the last train had gone, so he started to walk, but some passers-by gave him a ride to Newport. Inquiring for and finding the immigration station, he found it closed. Shortly his wife and child also arrived. They had been told to wait, but had taken advantage of an opportunity to ride to Newport. They all stayed at the hotel there that night. Their luggage, which had been sent ahead, was then at the immigration station. In the morning he applied to the station, long before it was open, but when it was opened and he again applied he was arrested and detained as an unlawful entrant. A little later he and his wife were formally arrested upon a warrant of arrest, charging that they had entered without the passport and visa required by the act of 1918 and the President's Proclamation, that they had entered without inspection, and that they were persons likely to become public charges.

The above is the alien's story. He was not at first truthful as to the presence of his wife and child at Newport, but later explained that he had been afraid they would be locked up, as he was. Upon the whole, there seems no reason to doubt the substantial truth of the story, and the Board seemed willing enough to accept it as true — indeed, the only matter of doubt was whether he really intended to present himself for inspection at Newport or whether he hoped to get by unobserved.

In accordance with our practice in these cases, we have directed that the certified copy of the departmental record, which was used on the hearing below, be made a part of the record on appeal, but without printing, and this has been done.

While under this detention at Newport, the aliens were indicted for the crime of having entered without the necessary passports and visa, required by the act known as the Passport Control Act, of May 22, 1918 (22 USCA §§ 223-226), and the President's Proclamation of Aug. 18, 1918 (40 Stat. 1829). Upon examination pursuant to the departmental warrant, the inspector found them guilty of everything charged, and further found James guilty of "a felony or other crime or misdemeanor involving moral turpitude," because he had entered in January, 1922, in violation of the Passport Control Act. The Commissioner at Montreal reported this to Washington, and it came before the Board of Review. The Board recited the circumstances, and although not accepting the alien's story in full, held that "in any event, both aliens are clearly in the United States illegally, having entered without visaed passports." The Board further recited that the aliens were well thought of personally, and were not undesirable immigrants, and concluded: "It is recommended that the warrant...