United States v. Karnuth
| Decision Date | 23 December 1927 |
| Citation | 31 F.2d 785 |
| Parties | UNITED STATES ex rel. ALBRO v. KARNUTH, Dist. Director of Immigration, et al. |
| Court | U.S. District Court — Western District of New York |
Botsford, Mitchell, Albro & Weber, of Buffalo, N. Y. (Preston M. Albro, of Buffalo, N. Y., of counsel, and Robert A. Reid, D. C. L., of Toronto, Ont., Canada, on the brief), for relators.
Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Richard A. Grimm, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for respondents.
The petition herein for writ of habeas corpus, verified by the attorney for the relators, states, inter alia, that the relators are unlawfully restrained of their liberty and are detained under color of the authority of the United States immigration officials; that the relator Cook is a native of Scotland, residing in Niagara Falls, Ontario, and had come to Buffalo to seek employment, while the relator Danelon is a native of Italy, who also resides in Niagara Falls, Ontario, and is employed as a laborer in industries at Niagara Falls, N. Y. It appears, by the return, that the relators arrived here in the forenoon of December 1, 1927, from their homes in Niagara Falls, Ontario, across from the bridge at Niagara Falls, N. Y.; that both, for some time past, had been crossing back and forth daily, and neither intends to live in the United States, but they intend to continue residing in Canada; and that neither was possessed of an unexpired consular immigration visa, as required by the Immigration Act of 1924 (Comp. St. §§ 4289¾-4289¾nn).
The Special Board of Inquiry, consisting of three inspectors, before whom the hearing was had, thereupon unanimously refused admission to the aliens, advising them that they had the right to appeal to the Secretary of Labor, to which each replied that he wished to appeal. At the beginning of their hearing, they requested that their attorney, H. Ely Goldsmith, Esq., be heard in their behalf, but this request was denied, upon the ground that they were not entitled to counsel under rule 11, subd. (b) of the Immigration Rules of March 1, 1927.
Without prosecuting an appeal, and before their exclusion, the aliens applied for writ of habeas corpus, substantially claiming that they were not immigrants, but were temporary visitors for business. At the hearing on the writ, counsel stated that it was not intended to appeal to the Secretary of Labor, since it was anticipated that the decision of the Special Board of Inquiry would be sustained, in view of General Order 86, which is attacked as contrary to the statute, on the ground that section 3 of the Immigration Act (8 USCA § 203) exempts aliens visiting the United States temporarily for business from the classification of immigrants, and is inapplicable to the relators, who came here to work and labor, or in search thereof. Failure to exhaust the remedy provided by law was strongly condemned in U. S. ex rel. Grau v. Uhl (D. C.) 262 F. 532, and especially see U. S. v. Sing Tuck, 194 U. S. 161, 24 S. Ct. 621, 48 L. Ed. 917; but I will pass on the questions presented, inasmuch as the facts are not in dispute and we are dealing solely with questions of law.
It was also alleged in the petition that the writ was sought because section 17 of the Immigration Act of 1917 (8 USCA § 153), providing for a stay of deportation until an appeal taken was decided, was continually violated by the immigration authorities, and aliens returned to Canada before their appeals were taken, and without opportunity to test the correctness of their decisions. There is nothing before me to support this allegation. Indeed, I feel justified in assuming the contrary, since the immigration officials have always, as my experience has shown, treated aliens considerately, and have allowed them complete opportunity to test the validity of hearings in the courts, and have delayed deportations until the questions were finally passed upon. The relators were brought into court on the return day by defendants director of immigration and inspector in charge, and by consent the proceedings were continued to allow time to file a return; the relators, meanwhile, being at large on their recognizance.
Counsel for the relators and the United States attorney, appearing for respondents, urge that this court should pass upon the right of aliens to be represented by counsel at hearings before the Special Board of Inquiry, though the relators were accorded a second hearing, at which, as I understand it, they were represented by Mr. Goldsmith.
Since many aliens, not of Canadian birth or citizenship, arrive daily from Canada, who labor in this country, especially in the border cities, and who likewise have been refused counsel at hearings, under rule 11, the question of the right to exclude counsel will be considered. Rule 11 of the Immigration Rules of March 1, 1927, reads as follows:
This rule, or a similar rule, has several times been before the courts for construction in this circuit. In U. S. v. Williams (C. C.) 190 F. 897, for example, the aliens, on their examination preliminary to admission, were refused counsel, and Judge Lacombe ruled that the statute did not authorize the presence of counsel at exclusion hearings; that, where aliens had entered and had resided here, they occupied a different status, but that Congress evidently did not intend that the qualifications of aliens intending to enter the United States should be tested by trials calling for the presence of counsel to represent them. On the contrary, the learned court said:
"Congress relegated this question to administrative boards who might act summarily and expeditiously, and, to provide against an abuse of their discretion, accorded to the alien a right of appeal to the Secretary of * * * Labor."
See, also, U. S. ex rel. Falco v. Williams (C. C.) 191 F. 1001, U. S. ex rel. Chin Fook Wah v. Dunton (D. C.) 288 F. 959, and U. S. v. Greenawalt (D. C.) 213 F. 901. The relators did not ask to have a friend or relative present, as permitted by the regulation under which the hearing was conducted, and, as the order or regulation expressly forbids the aid of counsel, there has been, in my opinion, no deprivation of any legal or constitutional right. The hearing was purely inquisitorial, without its having any relation to a criminal examination or investigation. The entry or admission of aliens into the United States, as said in the Greenawalt Case, is a high privilege bestowed, and not a legal right, and Congress has unquestionably the power to delegate officials or nonjudicial tribunals to exercise functions of a judicial or administrative character for the purpose of insuring effective compliance with the immigration laws including the deportation of aliens who have unlawfully entered or their exclusion at the boundary. It is not within the province of this court to attempt to control or interfere with the determination of such officials or tribunals save only to protect aliens from the abuse of the discretion of administrative boards by way of habeas corpus.
But it is strongly urged that the enforcement of rule 11...
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