United States v. Neelly

• Decision Date: 17 March 1953
• Docket Number: No. 10715.,10715.
• Citation: 202 F.2d 221
• Parties: UNITED STATES ex rel. BECK v. NEELLY.
• Court: U.S. Court of Appeals — Seventh Circuit

202 F.2d 221 (1953)

UNITED STATES ex rel. BECK v. NEELLY.

No. 10715.

United States Court of Appeals Seventh Circuit.

February 20, 1953.

Rehearing Denied March 17, 1953.

Albert W. Dilling and Kirkpatrick W. Dilling, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anna R. Lavin, Assts. U. S. Atty., Chicago, Ill. (John M. McWhorter, Acting District Counsel Immigration & Naturalization Service, of Chicago, Ill., of counsel), for appellee.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Petitioner, relator in a habeas corpus proceeding in the District Court, appeals from an order dismissing her petition.

The essential facts are undisputed. Petitioner, a citizen of Canada, entered the United States legally September 19, 1926, when some sixteen years of age. Three years later, she was brought before the United States immigration authorities in a deportation hearing, at which she was represented by counsel, and found deportable on the charge that she was an inmate of a house of prostitution. A warrant issued and petitioner left the country voluntarily on April 26, 1929. She reentered the same day without any legal permission so to do.

A little over a year later, June 20, 1930, she was again brought before the immigration officials who found that she was deportable because, at the time of her reentry following her first deportation, she had no immigration visa, was then likely to become a public charge, was a prostitute, had returned to the United States after having been deported, had reentered by means of false and misleading statements, without inspection, and was then a member of a class excluded by law. In pursuance of a warrant then issuing she was again deported on August 28, 1931.

About a month later, in September, 1931, she again entered the United States without a visa. Having been arrested on a warrant issued December 24, 1931, charging, among other things, that she had entered by means of false and misleading statements, at a hearing on February 23, 1932, she was found to be in the country illegally and again ordered deported April 5, 1932.

On September 23, 1931 petitioner had married a Cuban. Consequently, the Canadian government ruled that she was no longer a Canadian citizen, and refused to accept her as a deportee. The warrant of deportation could not be executed, as Canada persisted in its refusal to accept her until August 16, 1945.

In 1946 petitioner moved to reopen the proceeding on the ground that her admission of prostitution at the first hearing on March 12, 1929 had been secured by duress and coercion and that she had not then been represented by counsel. The motion to reopen was granted and the rehearing held on July 7, 15, 25, 31 and November 14, 1947, at all of which times she was represented by counsel of her own selection, except that on the last day, November 14, 1947 she waived counsel. At the conclusion of the hearing, the inspector found that she was an alien who had been arrested and deported in pursuance of law; that the Secretary of Labor had not granted her permission to reapply for admission; that she had reentered the United States, after having been deported as a prostitute, and that at the time of her entry she was not in possession of an immigration visa. She appealed to the Board of Immigration Appeals, which, on November 9, 1949, approved the finding and directed that she be deported to Canada.

The District Court, after hearing, entered an order denying petitioner's motions to quash the warrant, found the issues in favor of respondent, dismissed the writ and remanded petitioner to the custody of respondent. Assuming arguendo, but not deciding that petitioner may collaterally attack the record of previous deportation proceedings¹ we pass to the essential questions presented by petitioner, viz.: whether (1) there was a denial of fair hearing before the immigration authorities, (2) the latter's findings were supported by adequate evidence, and (3) any erroneous rule of law was applied. A subordinate question presented is whether the hearing on which the warrant of deportation of December 9, 1949 is governed by the Administrative Procedure Act.

The then applicable Act, 8 U.S.C.A. § 155(a), provided that any alien who, after being deported as a prostitute, shall return to and enter the United States, shall, upon the warrant of the Attorney General, be taken into custody and deported; section 213(a), that no immigrant shall be admitted to the United States unless she has an unexpired immigration visa or comes within certain other exempt classes not pertinent in this case, and section 214, that any alien found in the United States not entitled to entry shall be taken into custody and deported. Section 155(a)² also provided that in every case where a person is ordered deported from the United States, the decision of the Attorney General shall be final.

Under the statute the courts may not interfere with the administrative determination unless, upon the record, the proceedings were manifestly unfair or substantial evidence to support the finding is lacking, or error of law has been committed, or the evidence reflects manifest abuse of discretion. U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, 634. In other words, the findings of administrative officials in charge in such cases will be set aside by the court only upon proof of at least one of these situations. Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579, 581; Yep Suey Ning v. Berkshire, 9 Cir., 73 F.2d 745; Louie Lung Gooey v. Nagle, 9 Cir., 49 F.2d 1016, 1017; Taranto v. Haff, 10 Cir., 88 F.2d 85; U. S. ex rel. Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; U. S. ex rel. Rennie v. Brooks, D.C., 284 F. 908.

With this rule in mind, we examine the evidence submitted upon the fairness of the hearings, including the original one of 1929. At that time petitioner was first questioned by the immigration inspector, in the absence of counsel. She stated that she had recently been arrested in Detroit, in a house of prostitution; that, while living there, she had had illicit relations with four or five different men; that she had had similar relations with men in Canada before coming to the United States, beginning when she was 14 years of age....