Ungar v. Seaman

• Decision Date: 17 December 1924
• Docket Number: 6326.,No. 6325,6325
• Citation: 4 F.2d 80
• Parties: UNGAR v. SEAMAN, Immigration Inspector. HUSMAN v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 80 (1924)

UNGAR v. SEAMAN, Immigration Inspector.

HUSMAN v. SAME.

Nos. 6325, 6326.

Circuit Court of Appeals, Eighth Circuit.

December 17, 1924.

Arthur Le Sueur, of St. Paul, Minn., for plaintiffs in error.

William Anderson, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the briefs), for defendant in error.

Before SANBORN and LEWIS, Circuit Judges, and SCOTT, District Judge.

SANBORN, Circuit Judge.

These cases were argued and submitted to this court at the same time and by the same counsel. In each case the plaintiff in error, an alien, was arrested about January 2, 1920, by an officer of the Department of Justice, charged with being a member of or affiliated with an organization that entertains a belief in the overthrow by force or violence of the government of the United States, and with being a member of or affiliated with an organization that advocates and teaches the overthrow by force or violence of all forms of law. Act Oct. 16, 1918, c. 186, § 1; section 4289¼ b (1), U. S. Compiled Statutes 1919 Supplement. Each of them was questioned in respect to the charges against him before he had any lawful hearing. Subsequently each of these aliens had a hearing before an examining inspector, when he was questioned and other evidence was received relative to the charges against him. The inspector in each case reported the evidence at this hearing to the Assistant Secretary of Labor, who finally found that the accused was a member of the Communist party of the United States, and issued a warrant for his deportation, under which each of the plaintiffs in error was arrested and held, when each of them presented a petition for a writ of habeas corpus to the court below; that court issued the writ in each case; the officer in charge of them answered the petition for the writ, that he held them under the warrants of deportation; the court below heard the evidence and the arguments of counsel on the issues presented by the writs and returns, and dismissed the writs. Thereupon the aliens sued out writs of error and presented their cases to this court.

In this court these cases present two questions: (1) Was there any substantial evidence, at the hearing before the examining inspector upon which the warrants of deportation were based, that these aliens were members of or affiliated with the Communist party of America in 1919 or 1920? and, (2) was the hearing before the inspector in either of these cases unfair or prejudicially affected by the abuse of the discretion or the arbitrary action of the examining inspector, the Assistant Secretary of Labor, or other executive officer? The court below answered these questions in the negative, and these answers are assigned as error.

Whether or not the weight of the evidence in substantial conflict sustained the charges against the accused was a question in the exclusive jurisdiction of the immigration officers, and their decision of that question is not reviewable by the courts. The warrants for the deportation of these aliens rest on the evidence at their hearings and the findings of the Assistant Secretary of Labor that they were in 1919 and 1920 members of or affiliated with the Communist party of America. It is now settled that this Communist party was an organization that entertained a belief in the overthrow by force or violence of the government of the United States and advocated and taught the overthrow by force or violence of all forms of law. Skeffington v. Katzeff (C. C. A.) 277 F. 129, 133; Antolish v. Paul (C. C. A.) 283 F. 957, 959.

At the hearing under the warrant of arrest before Inspector Holton, where Mr. Ungar was represented by counsel, he testified in answer to questions by the inspector that he joined the Socialist party in 1912, and continued to be a member until the Communist party of America was organized; that he voted to change the name of the Socialist party to the Communist party of America; that he lost his membership card; that he got a membership card in the Communist party of America in October, 1919; that he paid dues therein for October and November; that he was not a member at the time he was testifying; that he was two months in arrears in the payment of his dues; that, if it had not been for the raid, he supposed he would have been in good standing at the time he was testifying; that he was in good standing at the time he was taken into custody; and that he would not belong to a party unless he knew what it stood for. Although Mr. Ungar subsequently testified that he did not believe in or advocate many of the theories and teachings of the Communist party, we cannot hold, in view of that part of his testimony which has been recited, that the court below was in error in its conclusion that there was substantial evidence at the hearing before the examining inspector that he was, at the time the charge was made against him in 1919 or 1920, a member of and affiliated with the Communist party.

We turn to the case of Mr. Husman. His hearing on the warrant for his arrest was had before O. B. Holton, examining inspector, on January 5, 1920. In answer to questions by the inspector he testified that he was a member of the Communist party of America, and had been ever since it started; that he was one of the members of the Socialist party when it split and went over to the Communist party in September, 1919. He then declined to testify further without counsel, and an adjournment was taken to January 13, 1920, when the examination of Mr. Husman by the examining inspector continued in the presence of his counsel. The inspector read to him the report of Mr. A. F. Kearney, the officer who arrested him, of an examination which he made of him immediately upon his arrest, and asked him if the report was correct, and Mr. Husman testified that the report seemed to be correct. That report was then introduced in evidence before the examining inspector. It contained the statements that Mr. Husman had told Mr. Kearney that he was a member of the state committee of the Communist party and was a delegate at the state Communist convention — the state Socialist convention it was at that time — and that they voted to take the name of the Communist party; that he had a membership card in the Communist party in the English local in Minneapolis; that he had read the application for membership in the Communist party many times, and subscribed to the preamble; that he did not file an application for membership because under a resolution the members of the English local went right ahead and changed the books, so that any member of the Socialist local would automatically become a member of the other, if he wished to. Mr. Husman then identified his membership card in the Communist party, with one stamp attached showing payment of his dues for October, 1919. This card was taken from his house without a search warrant. He testified that he was chairman of the special convention of the Socialist party on October 5, 1919, until 8 p. m. The minutes of that convention were introduced in evidence, to the effect that a motion was adopted by that convention in these words:

"That we recognize the principles and tactics of the Communist party of America as expressed in their manifesto, program, and constitution, and that we, as representatives of the Socialist party of Minnesota, in convention assembled, vote to affiliate with the Communist party of America, changing the name of our organization from the Socialist party of Minnesota to Communist party of Minnesota."

Mr. Husman testified that he voted for the separation, as he was instructed to do by his local. This review of the evidence leaves no doubt that there was no error in the finding of the court below that there was substantial evidence at the hearing before Inspector Holton that Mr. Husman was a member of and affiliated with the Communist party of America in 1919 or 1920.

The second question in this case is: Was either of the hearings of these aliens unfair or prejudicially affected by the abuse of the discretion or the arbitrary action of the inspector who conducted the hearing, the Assistant Secretary of Labor, or any other executive officer?

The proceedings in these cases were not instituted to deport aliens who had entered the United States in violation of its laws. They had been lawfully residing here from six to eight years. Such aliens are entitled to hearings and decisions of the charges of offenses of which they are alleged to be guilty according to "the fundamental principles that inhere in due process of law." Indispensable requisites of a fair hearing, according to these fundamental principles, are that the course of proceedings shall be appropriate to the case and just to the party affected; that the accused shall be notified of the nature of the charge...