United States ex rel. D'Amato v. Williams

• Decision Date: 12 July 1909
• Citation: 193 F. 228
• Parties: UNITED STATES ex rel. D'AMATO v. WILLIAMS.
• Court: U.S. District Court — Southern District of New York

193 F. 228

UNITED STATES ex rel. D'AMATO v. WILLIAMS.

United States District Court, S.D. New York.

July 12, 1909

In this case the relator obtained the writ of habeas corpus to relieve his brother from detention by the immigration authorities at Ellis Island. He alleges that his brother is detained as an alleged stowaway and is about to be deported to Italy, from which he came, without any hearing by the board of special inquiry or appeal to the commissioner. The return concedes that the alien will be deported without any hearing before a board of special inquiry, and gives as a ground that the alien is a stowaway under rule 23 promulgated by the Commissioner General of Immigration. In an affidavit in support of the petition, the alien himself alleges that he paid for his passage on shore and was rowed to the ship by a man in a boat, that he ate and slept with the passengers all the way over, and was unaware that he was in any way stealing his passage. Rule 23 promulgated by the commissioner is as follows:

'Rule 23. Alien stowaways.-- The immigration act contains no provision relating in terms to stowaways, and the sections thereof prescribing inspection of applicants for admission do not, as a general rule, cover their cases. There are two good and sufficient reasons for refusing to examine stowaways: (1) By stealing passage they not only evade on their own account but make it impossible for vessel officials to observe the mandatory terms of sections 9 and 12 to 15, requiring medical inspection and detailed manifesting at the foreign port of embarkation, so that they occupy the status of persons who have failed to comply with plain provisions of law, an observance of which is necessary to a proper inauguration of their inspection under section 16; and (2) even aside from the fact that stowaways thus come before the immigration officials as violators of the law, they are persons obviously falling within the excluded classes named in section 2 in every instance, at least to the extent that they are persons who are 'assisted by others to come,' and with respect to whom it would be practically impossible to show 'affirmatively and satisfactorily' that they do not belong to the excluded classes. Therefore, alien stowaways shall not, as a rule, be examined or permitted to land at ports of the United States, nor shall head tax be certified on their account. The masters of vessels immediately upon arrival shall report to the immigration officer in charge the names of any alien stowaways on board, and shall take every precaution to prevent their landing, subject to the penalty prescribed by section 18, holding them on board the vessel until it departs from the United States. While these regulations cover all ordinary cases of stowaways and will in practice be found to be of almost universal application, yet cases may rarely arise in which the alien, though a stowaway may nevertheless be entitled to inspection and to admission if found to belong to none of the excluded classes. For example, the alien, though originally a stowaway, may have been, because of the particular facts of his case, accepted by the vessel as a passenger and manifested in such a way as to substantially comply with the law, or may have been employed as a member of the crew, or the causes which led the alien to stowaway may have been such as to bring his case within the first proviso to section 2 of the immigration act and entitle him to special consideration. Exceptional cases of this character should be promptly brought to the attention of the department, with a full statement of facts and a request for instructions.'

Section 22 of the act gives the following power to the Commissioner General of Immigration, under the direction to the Secretary of Commerce and Labor:

'He shall establish such rules and regulations, * * * not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this act. * * * '

Wm. H. Weissager, for relator.

Daniel D. Walton, Jr., for commissioner.

HAND District Judge (after stating the facts as above).

I think it is quite clear that in rule 23 the word 'stowaway' is used to indicate one who steals his passage, and I do not mean to decide whether that rule is valid or not, for I do not think it is necessary here. Possibly one who steals his passage, and who concedes that he steals his passage, may be deprived of a hearing before a board of special inquiry. I am not prepared to say that that board is necessary where there is nothing for them to decide. If the alien concedes such facts, perhaps any hearing is unnecessary. It is quite true that the statute makes no exception to the necessity of a board of inquiry in the...