United States v. Day

• Decision Date: 14 November 1927
• Docket Number: No. 68.,68.
• Citation: 22 F.2d 472
• Parties: UNITED STATES ex rel. DE SOUSA v. DAY, Immigration Com'r.
• Court: U.S. Court of Appeals — Second Circuit

22 F.2d 472 (1927)

UNITED STATES ex rel. DE SOUSA v. DAY, Immigration Com'r.

No. 68.

Circuit Court of Appeals, Second Circuit.

November 14, 1927.

Gaspare M. Cusumano, of New York City, for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Alvin McKinley Sylvester, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

The alien in this case was neither accompanied by nor coming to a parent, and was slightly under 16 years of age. Section 3 of the act of 1917, supra, providing that the alien "may, in the discretion of the Secretary of Labor, be admitted if in his opinion" he is "not likely to become a public charge and" is "otherwise eligible," is therefore applicable.

The Secretary of Labor exercised his discretion by rule 3, subdivision N, and we can see no reason why he should not exercise it in such a way. The Secretary doubtless might, under the statute, have treated the case of each immigrant as wholly independent, but he also might make a fair classification by rule, and a rule that an unaccompanied alien of sound mind and body, who had not been an object of public charity, might be admitted when coming to near relatives able and willing to support, educate, and care for him, seems to be reasonable.

The alien fulfilled all the requisites of the rule, unless there was some basis for a finding by the department that the uncle was not able and willing to support and properly care for him. The alien's uncle had taken enough interest in him to pay his passage to the United States and to agree that he should not become a public charge and should attend school during the short time that would elapse before reaching the age of 16 years. There is no evidence that this promise, though legally unenforceable, was not made in good faith, or that the uncle was unlikely to be able and willing to fulfill it. While he had not large savings, he had $500 laid by, and was earning $4.50 per day, and had no wife or children dependent upon him.

In the case of Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114, certain Russian immigrants arrived at the port of New York, knowing no trade, having no one under any legal obligation to support them, and having only about $25 in cash apiece. Only one of them could read or write in his own language, and none of them could speak English. They were excluded by the department because likely to become public charges. They sued out their writs of habeas corpus, and the return to the writs alleged that they were "likely to become public charges for the following, among other, reasons: "That they arrived here with very little money ($40 and $25 respectively) and are bound for Portland, Oregon, where the reports of industrial conditions show that it would be impossible for these aliens to obtain employment; that they have no one legally obligated here to assist them; and upon all the facts, the said aliens were * * * duly excluded." The District Court (211 F. 236) as well as this court (215 F. 573), dismissed the writs; but the Supreme Court reversed the orders, and sustained the writs, in an opinion by Justice Holmes, representing the unanimous decision of the court. His opinion was based upon the ground that an alien could not be excluded "because the labor market of the United States was overstocked." The facts in the Gegiow Case seem to have been at least as strong to justify exclusion as those here. The persons there, though adults, had no savings worth mentioning, no apparent means of securing employment, and no persons under legal obligation to support them to whom they could turn. In the face of that case it is hard to say that a healthy adult immigrant, with no previous history of pauperism, and nothing to interfere with his chances in life but lack of savings, is likely to become a public charge within the meaning of the statute.

The Immigration Act places children under 16 years of age, unaccompanied by or not coming to one or both parents, in the excluded classes, "except that any such children may in the discretion of the Secretary of Labor be admitted if in his opinion they are not likely to become a public charge and are otherwise eligible."

By the rule the Secretary has promulgated he has exercised the discretion conferred by the statute, and in substance has expressed his opinion that a child in good mental and physical condition, who comes to near relatives, able and willing to support and properly care for him, is not likely to become a public charge, even...