United States v. Commissioner of Immigration

• Decision Date: 21 March 1936
• Parties: UNITED STATES ex rel. FORTMUELLER v. COMMISSIONER OF IMMIGRATION, ELLIS ISLAND, NEW YORK HARBOR.
• Court: U.S. District Court — Southern District of New York

14 F. Supp. 484

UNITED STATES ex rel. FORTMUELLER v. COMMISSIONER OF IMMIGRATION, ELLIS ISLAND, NEW YORK HARBOR.

District Court, S. D. New York.

March 21, 1936.

Sol H. Cohn, of New York City (Osmond K. Fraenkel, of New York City, of counsel), for relator.

Lamar Hardy, U. S. Atty., of New York City (Thomas McCall, Asst. U. S. Atty., of New York City, of counsel), for respondent.

CAFFEY, District Judge.

Both the Labor Department and the court are obligated to carry out the will of Congress as expressed in the immigration laws. It is not within the province of either to exercise its own notion as to the policy or justice of the legislation. So also it is beyond the power of the court to disregard, much less to set aside, findings of fact by the Labor Department if, on examination of the record, it ascertain that they rest on substantial evidence. However much in dispute and however open to divergent inferences, if the proof were such that the department could reach the conclusions stated in its findings, it would be unlawful for the court to interfere. If there was such proof here, then all the court may determine is whether the facts, as found by the Labor Department, bring the case within the deportation provisions of the statute and whether the procedure was free from error.

It is conceded in behalf of the relator that the findings, as made by the Labor Department, bring him within the statutory provisions which direct that he be deported. The sole questions, therefore, are: (1) Was there evidence on which any finding, as made, could be based? (2) Was the procedure fair? If both questions be answered in the affirmative, then it follows that the action of the Labor Department must stand and that this court is without authority to relieve the relator from it.

The relator is an alien. In 1929 he was admitted to this country. He has been here ever since. In 1930 he became a member of the Communist Party of the United States section of the Communist International. He continues to belong to that organization. He firmly adheres to its tenets. He has been and is its active supporter. For more than a year prior to his arrest he wrote voluminously in advocacy of its doctrines and program. All of this is without dispute.

On March 21, 1935, he made a statement under oath to an immigration inspector. On April 13 a warrant, containing charges of violating the immigration laws, was served on and read to him. Thereupon an adjournment of his hearing on the charges was taken until April 29. Before the latter date was reached, at the request of his counsel, there was another adjournment to May 8. On the latter day testimony was taken.

In the warrant there were three charges. All related to alleged conduct with respect to overthrow by force or violence of the government of the United States. In substance they were that: (1) He believed in, advised, advocated, or taught this; (2) he wrote, published, or caused to be written or published printed matter advising, advocating or teaching this; and (3) after entry he became a member of or affiliated with an organization, association, society, or group that believes in, advocates, or teaches this. If guilty of any of the specified charges the law requires, and, as already remarked, it is not controverted that the law requires, that he be deported. 8 U.S.C.A. §§ 137, 155.

In a case like the present the scope of judicial review is very narrow. If there was any evidence to support the Labor Department's findings of fact, they must be accepted. The court is without power to disturb them. Tisi v. Tod, 264 U.S. 131, 133, 44 S.Ct. 260, 68 L.Ed. 590; U. S. ex rel. Casimano v. Commissioner of Immigration (C.C.A.) 15 F.(2d) 555, 556.

Was there evidence on which the Labor Department could find that the first charge was true?

The alien declared that he favored and urged that the Soviet form of government, as it prevails in Russia, replace the existing form of government of the United States. At his preliminary examination on March 21, 1935, he was asked whether: "If it is absolutely necessary to use force or violence to substitute a Soviet form of Government, would you be in favor of such force or violence?" His answer was: "Yes, I guess so." Exhibit A, p. 7. Without more, clearly this statement was enough to enable the Labor Department to make a finding adverse to the relator on the first charge. That being true, there is no occasion to go further in the inquiry. Whatever may be the view of the court as to what the finding ought to have been, in the circumstances stated the court is powerless to nullify or to disregard it. Nevertheless, I deem it proper to add that, as I see it, there was abundant other evidence upon which the department might have predicated the same finding.

True, immediately following the testimony quoted above the record continues as follows (Exhibit A, p. 8):

"(Requests to qualify his answer) Yes, in accordance with the teachings of Thomas Jefferson and Abraham Lincoln.

"Q. What do you mean by that? A. Thomas Jefferson states in the Declaration of Independence that when the Government becomes unjust and depressive (oppressive, sic!) the people have the right to alter, or if necessary to overthrow it, or words to that effect."

The Labor Department, however, was warranted in treating the attempted modification of the prior admission as without effect. Let it be assumed, for example, that Jefferson and Lincoln advocated the use of force or violence in overthrowing the government of the United States; or, what is the equivalent, assume that a citizen of the United States to-day advocates that course. This would not help the relator in the slightest. He is an alien. That makes the difference under our law. The relator is within our gates on sufferance only. He was permitted to enter on conditions. In its wisdom Congress has prohibited aliens from doing what the relator, by implication, suggests was done by two great Americans. Congress has gone further. It has prescribed that if an alien, while occupying a guest status in this country, violates the prohibitions, he shall be deported. On the other hand, it has not provided, and perhaps is without constitutional power to provide, that an American citizen who does the same thing shall be deported. It is because the law governing who shall be deported discriminates in this way between aliens and citizens that the attempt of an alien to justify his conduct by pointing to what a citizen is allowed to do is without force.

Obviously if an alien be found guilty of such a violation of law as is now under discussion, the Labor Department would be recreant to its duty if it failed to issue a warrant for his deportation. It could not escape from issuing the warrant except by itself disobeying the law. If any one deem the law as so written to be erroneous or unwise, his sole remedy under our system of government is by appeal to Congress for a change.

In his testimony at the May 8 hearing the relator in effect denied that he entertained the belief about the use of force or violence in the way he had avowed it at the March 21 examination (Minutes, pp. 19, 20). Furthermore, both he and his witnesses said, or at least implied, that the party to which he belonged had no such program (Minutes, pp. 10, 22, 25, 29). Nevertheless, it is not for the court to say that the Labor Department should have rested its finding on this other evidence or should have made a contrary finding on account of the other evidence. So to do would be to stray outside of the province of the court as defined by law. The department was free to believe that the relator told the truth in the statement he made at the March 21 examination.

Up to this point I have...