United States v. Howe

• Decision Date: 09 October 1916
• Citation: 235 F. 990
• Parties: UNITED STATES ex rel. CAVANAUGH v. HOWE, Commissioner of Immigration.
• Court: U.S. District Court — Southern District of New York

235 F. 990

UNITED STATES ex rel. CAVANAUGH v. HOWE, Commissioner of Immigration.

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

October 9, 1916

Edward M. Stanton, Asst. U.S. Atty., and Jonah J. Goldstein, of New York City, for the immigrant.

MANTON District Judge.

This is an application for the release of Hilda Rose Cavanaugh, an immigrant from Great Britain, who was ordered deported by the Department of Labor. Born in Ireland, she spent much of her time in England and immigrated to this country once before where she remained for some months, returning to England, and has now sought re-entry to this country. She has had full hearing before the commissioners, and, after an adverse decision, appealed to the Secretary of Labor at Washington where the decision of the Board of Inquiry was affirmed and her deportation ordered.

There were two grounds urged at the proceedings before the Board of Inquiry for her deportation: First, that of immoral character, since abandoned; and, the second, that she might become a public charge. She has been ordered deported upon the latter. The court, under the authorities, cannot disturb this finding if there is evidence, however slight, to support a finding that there is danger of the immigrant becoming a public charge. U.S. v. Ju Toy, 198 U.S. 260, 25 Sup.Ct. 644, 49 L.Ed. 1040; Ex parte Fong Yim (D.C.) 134 F 938.

It was said in Ex parte Petterson (D.C.) 166 F. 539:

'A preliminary question has been suggested which must first be considered: Has this court authority in a habeas corpus case to examine the record of the proceedings before the immigrant inspector, for the purpose of ascertaining whether the Assistant Secretary of Commerce and Labor, in issuing his warrant for deportation, acted with respect to a matter over which he had jurisdiction? It is, of course, well settled by abundant authority that the writ of habeas corpus cannot be employed to perform the function of a writ of error or an appeal. There are, however, several recent decisions of the Supreme Court holding that the courts of the United States have jurisdiction to grant relief to a party aggrieved by any action by the head or one of the subordinate officials of a department, when the evidence adduced before such official, and upon which he assumes to act, is wholly uncontradicted, and shows beyond any room for dispute or doubt that the case in any view is beyond the statutes, and not covered or provided for by them. Gonzales v. Williams, 192 U.S. 1 (24 Sup.Ct. 177, 48 L.Ed. 317); Amer. School of Mag. Heal. v. McAnnulty, 187 U.S. 94 (23 Sup.Ct. 33, 47 L.Ed. 90).

'Upon the authority of these cases-- and many others might be cited-- there can be no room for question that this court has authority to examine the record and the evidence upon which the Assistant Secretary of Commerce and Labor predicated his authority to issue his warrant for the deportation of the petitioner, for the sole purpose of ascertaining whether the evidence before that official, and upon which he assumed to act, showed beyond any room for dispute or doubt that this case is beyond the purview of the immigration statutes of the United States, and not covered or provided for by them.'

But when there is nothing to support a charge such as the charge in question, the court may rightfully hold that the detention and deportation of the immigrant is an abuse of power. Frick v. Lewis, 195 F. 696, 115 C.C.A. 493.

In Gegiow v. Uhl, 239 U.S. 9, 36 Sup.Ct. 3, 60 L.Ed. 114, Judge Holmes said:

'The courts are not forbidden by the statute to consider whether the reasons, when they are given, agree with the requirements of the act. The statute, by enumerating the conditions upon which the allowance to land may be denied, prohibits the denial in other cases. And when the record shows that a Commissioner of Immigration is exceeding his power, the alien may demand his release upon habeas corpus. The conclusiveness of the decisions of immigration officers under section 25 is conclusiveness upon matters of fact. This was implied in Nishimura Ekiu v. U.S., 142 U.S. 651 (12 Sup.Ct. 336, 35 L.Ed. 1146), relied on by the government. As was said in Gonzales v. Williams, 192 U.S. 1, 15 (24 Sup.Ct. 177, 180 (48 L.Ed. 317)): 'As Gonzales did not come within the act of 1891, the commissioner had no jurisdiction to detain and deport her by deciding the mere question of law to the contrary.' Such a case stands no better than a decision without a fair hearing, which has been held to be bad. Chin Yow v. U.S., 208 U.S. 8 (28 Sup.Ct. 201, 52 L.Ed. 369). See, further, Zaknaite v. Wolf, 226 U.S. 272 (33 Sup.Ct. 31, 57 L.Ed. 218); Lewis v. Frick, 233 U.S. 291, 297 (34 Sup.Ct. 488, 58 L.Ed. 967).'

Bearing in mind these principles to which the court is confined in determining the questions involved on this application, I am of the...