United States v. Jordan

• Decision Date: 16 January 1948
• Docket Number: No. 9296.,9296.
• Parties: UNITED STATES ex rel. SCHLIMMGEN v. JORDAN, Dist. Director of Immigration and Naturalization Service.
• Court: U.S. Court of Appeals — Seventh Circuit

164 F.2d 633 (1947)

UNITED STATES ex rel. SCHLIMMGEN v. JORDAN, Dist. Director of Immigration and Naturalization Service.

No. 9296.

Circuit Court of Appeals, Seventh Circuit.

December 9, 1947.

Rehearing Denied January 16, 1948.

Otto Kerner, Jr., U. S. Atty., John Peter Lulinski and Maurice C. Handelman, Asst. U. S. Attys., and John M. McWhorter, Immigration and Naturalization Service, all of Chicago, Ill., for appellant.

Joseph J. Merensky and T. S. Friedman, both of Chicago, Ill., for appellee.

Before EVANS and MINTON, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Appellee, a German citizen and a registered alien enemy, in a habeas corpus proceeding in the District Court, was discharged from the custody of the Attorney General, who had entered an order for his deportation. The District Director of Immigration and Naturalization appeals. Pertinent provisions of the Immigration Act, U.S.C.A., Title 8, Sections 136, 155 and 173 appear in the footnote.^*

The record of the proceeding before the immigration authorities discloses that several prolonged hearings were held, at all of which appellee was present; that at two or more of these, he was represented by counsel of his own choice; that at all others he expressly disclaimed any desire for and waived counsel, and that not once but repeatedly he was fully advised of the nature of the proceeding and of the possible consequences flowing therefrom.

Courts may not interfere with administrative determinations unless, upon the record, the proceedings were manifestly unfair, or substantial evidence to support the administrative finding is lacking, or error of law has been committed or the evidence reflects manifest abuse of discretion. Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed. 1165; Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082. Consequently, inasmuch as the party ordered deported can, in a habeas corpus proceeding, complain only of a failure of the administrative officer in one or more of these respects, the court acts upon the record made in the administrative hearing and may not try the issues de novo upon evidence not submitted in the first instance. Kessler v. Strecker, supra; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Lai To Hong v. Ebey, 7 Cir., 25 F.2d 714. This results from the mandate of the statute, par. (a) Section 155, Title 8 U.S.C.A., reading: "In every case where any person is ordered deported from the United States under the provisions of this Chapter, or of any law or treaty, the decision of the Attorney General shall be final."

We think the only justifiable conclusion to be drawn from the record of the numerous sessions is that the hearings were fairly conducted and appellee's rights scrupulously respected.

The facts are very largely undisputed. Indeed, they are, for the most part, derived from appellee's own testimony. Appellee was born in 1901 in Germany. On December 20, 1937 he was admitted into this country for permanent residence upon presentation of a quota immigration visa, obtained in Havana, Cuba. From that time on he pursued his calling of seaman, sailing to various parts of the world, including his native land. Prior to 1938 he spent more time ashore in Germany than in America. His last trip from Germany to the United States occurred in 1939; he was a member of the crew of a steamship sailing on a return voyage from Hamburg, landing in New York March 25, 1939. In late 1939 or early 1940 he shipped from San Francisco, on an American vessel, visiting Los Angeles, Acapulco, Mexico, Panama, Colon, and Havana, Cuba, and landing at New York on February 24, 1940. His counsel deny that he went ashore at any of these ports but the record discloses that when appellee was asked how long his ship was at Havana, he replied "four hours." He was then asked, "were you permitted to go ashore?" He answered "yes." We think this can be taken only as an admission that he did go ashore. There is no evidence that he left the ship at any other foreign port.

Appellee was convicted in a German court in May 1935, and served three months in a criminal labor camp. Though there was no record evidence of the nature of the charge, appellee at various times admitted that he had been convicted of theft in Germany and at other times said that he was arrested on "suspicion of theft," and tried in a "quick court," upon the testimony of another German who testified that, in a bar-room where several persons were drinking, his purse, containing 60 marks, had been taken by someone; that, when appellee was searched, 70 marks were found upon his person, 60 of which the complaining witness claimed to be his; that he, appellee, was not permitted to testify, but was found guilty of theft or suspected theft and sentenced to serve three months in a prison camp. This, the immigration authorities held, amounted to conviction of a crime involving moral turpitude, barring his right to enter and invalidating his immigration visa. However, in view of our disposition of this appeal, we think it unnecessary to decide whether this determination was in accord with the law.

The decisive factor we think lies in the answer to the question whether the entry of February 24, 1940, or that from Germany in March 1939, constituted entry within the meaning of the Act, for, if so, appellee's admission that he committed in June 1938, the crime of passing counterfeit money for which he was, on April 29, 1939, convicted in the United States District Court in New York, justified his deportation, provided that crime involves moral turpitude.

Appellee testified that he entered New York from Germany in March 1939, and again from Havana on February 24, 1940. The District Court found that he had made no re-entry and that his voyage, terminating in the arrival of his ship in New York which had sailed from San Francisco, though various foreign ports had been visited, did not involve an entry from abroad. This, we think, was erroneous.

The opinion of the Supreme Court of the United States in United States ex rel. v. Corsi, Commissioner of Immigration, 287 U.S. 129, 53 S.Ct. 40, 41, 77 L.Ed. 215, seems decisive. There the alien entered this country in 1923, remaining until March, 1929, when he shipped on an American vessel for a voyage to Germany and return. This vessel remained in port in Germany two and one half days, but there was no evidence that petitioner went ashore. He returned to the United States on the same ship in April, 1929. The court said: "The question is whether by so doing he made a new entry into the United States which left him amenable to the provisions of the act * * *. The relator's arrival in the United States in April, 1929, was an entry into this country notwithstanding he was a member of the crew of an American ship which had made a round trip voyage. He came from a place outside the United States, and from a foreign port or place, within the meaning of the immigration laws." Here as there the alien was a member of the crew of an American ship; here as there in 1939 he came from Germany, and, later, in 1940, from Havana, Cuba. See also United States ex rel. Claussen v. Day, Commissioner of Immigration, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L. Ed. 1298; In United States ex rel. Roovers v. Kessler, District Director of Immigration, 5 Cir., 90 F.2d 327, 328, the alien entered the United States in 1917. In 1935 he shipped on an American steamship on a voyage which touched at Havana, Cuba, Cristobal, Canal Zone, and Puerto Cortez, Honduras. He testified that he did not go ashore at any port. On July 29, 1935, he returned on the ship to New Orleans. The court said: "Appellant did leave the United States on board a ship; he did on board that ship enter foreign ports and foreign territory; and he did, on board the same ship, re-enter the United States. That he did not betake himself ashore is immaterial." In U. S. ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 667, 77 L.Ed. 1298, the alien, having lived in the United States for some years, made a trip to Cuba. His re-entry at Key West was held an entry within the meaning of the statute. The court said: "That the second coming of an alien from a foreign country into the United States is an entry within the usual acceptation of that word is clear." In the face of these decisions, there is no escape from the conclusion that the alien did make a re-entry both when he returned from Germany in 1939 and when he returned from his voyage on an American vessel which visited foreign ports in 1940.

Since this case was argued the Supreme Court has announced its opinion in Delgadillo v. William A. Carmichael, etc., 68 S.Ct. 10....