United States v. Parson

• Decision Date: 14 January 1938
• Docket Number: No. 13375.,13375.
• Citation: 22 F. Supp. 149
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. PARSON.

22 F. Supp. 149

UNITED STATES v. PARSON.

No. 13375.

District Court, S. D. California, Central Division.

January 14, 1938.

COPYRIGHT MATERIAL OMITTED

Ben Harrison, U. S. Atty., and Carl Eardley and Ralph Lazarus, Asst. U. S. Attys., all of Los Angeles, Cal.

A. L. Wirin, of New York City, and Lee B. Stanton, of Los Angeles, Cal., for defendant.

The defendant, Robert Parson (to whom we shall refer as Marcus Graham, his favorite pseudonym), claims to be a native of Montreal, Canada. He is, according to his own admission in court, a philosophical anarchist. He is a writer and the editor of the anarchist publication "Man." Under the name of Marcus Graham, he edited in 1929, "An Anthology of Revolutionary Poetry." During his career as a writer and participant in labor and other social controversies, he has also used the names of Robert Parsons, Fred S. Graham, and Shoel Marcus.

He was arrested on April 25, 1919, upon a warrant of arrest issued on the same day by the Secretary of Labor, and which charged that he was an alien anarchist; that he disbelieved in all organized government; that he was an opponent of all organized government; that he was a person likely to become a public charge at the time of his entry; and that he entered without inspection.

After a hearing, at which he declined to answer questions concerning his birth and his right to be in the United States, a warrant for his deportation to Canada was issued by the Secretary of Labor on November 18, 1919. Canada refused to take him on the ground that there was no proof of his Canadian citizenship. He continued on bail for a time. On February 21, 1921, he was arrested and detained by the immigation authorities. He was released on $1,000 bail on August 16, 1921. The bond was exonerated on the following day. On July 24, 1930, he was arrested at Yuma, Ariz., and imprisoned for a week. This proceeding was not instituted by the immigation authorities. On July 26, 1930, a telegraphic warrant of arrest was sent by the Department of Labor charging him with being an alien anarchist, writing, publishing, circulating and distributing, printing and displaying written or printed matter, advising, advocating, and teaching sabotage, prior to or at time of entry; at time of entry not being in possession of an unexpired immigration visa, and having entered without inspection.

After a hearing at Los Angeles, the Department of Labor, on November 15, 1930, canceled the warrant of arrest dated July 26, 1930, and the warrant of deportation subsequently issued.

On October 6, 1937, he was again arrested, after an authorization to reopen the case. At the hearing held subsequently, he refused to answer any questions relating to his nativity, and his right to be and remain in the United States.

On November 23, 1937, upon petition of the United States Attorney for the Southern District of California, showing the refusal, I issued an order, 8 U.S.C.A. § 152, requiring Graham to appear before an immigration inspector on December 6, 1937, and "then and there produce his birth certificate, and his passports for entry into the United States, and any other papers and documents that he may have touching his citizenship and his birthplace and his emigration to and immigration into the United States of America," and that he "then and there testify before the said Immigration Inspector and answer such questions as may there be submitted to him touching his birthplace, his entry into the United States, his citizenship, and his right to be and remain in the United States."

Graham appeared, but declined to answer any of the questions asked.

On December 11, 1937, an information for criminal contempt was filed, and a citation issued. The defendant appeared, and entered an oral plea of not guilty. He also filed a plea in bar.

The plea in bar, after reciting the facts epitomized and others not material to the decision, challenged the legality of the new hearing upon the ground that the questions asked would, if answered, tend to incriminate him, as he might convict himself of illegal entry in war-time, Act May 22, 1918, 40 Stat. 559, 22 U.S.C.A. §§ 223-226, and Proclamation Aug. 8, 1918, 40 Stat. 1829, entry without inspection, 8 U.S.C.A. § 180a, and violation of the California Criminal Syndicalism Act, St.Cal.1919, p. 281. The plea charged that such procedure, even if authorized, would be unfairness in the hearing and a denial of the due process. It also asserted that section 152, 8 U.S.C. A., does not apply to deportation proceedings, and that, for this reason, the order to testify was without authority in law. The government demurred to the plea upon the ground that it did not set forth facts sufficient to bar the prosecution for contempt.

YANKWICH, District Judge (after stating facts as above).

The claim of immunity by reason of the guarantee against self-incrimination (Constitution of the United States, Amendment 5) is without merit. The Supreme Court has held that in view of the civil nature of deportation proceedings under the immigration law, the guarantees of the Fifth and Sixth Amendments do not apply to them. No violation of the guarantee against self-incrimination is involved in compelling one, whose right to remain in the United States is challenged, to give testimony. See Fong Yue Ting v. United States, 1893, 149 U.S. 698, 730, 13 S.Ct. 1016, 37 L.Ed. 905; United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Zakonaite v. Wolf, 1912, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; United States v. Lee Hee, 2 Cir., 1932, 60 F.2d 924; Ishihama v. Carr, 9 Cir., 1936, 81 F.2d 1012; Hays v. Zahariades, 8 Cir., 1937, 90 F.2d 3.

The more serious question is the application of the provisions of section 152, 8 U.S.C.A., to deportation proceedings. The facts relating to the unfairness throughout the proceedings cannot be inquired into in this proceeding. We are not dealing with a final order of deportation. We cannot, when a complete administrative scheme has been set up for the determination of certain matters, review it until the final stage is reached. The remedy of reviewing the arbitrariness in this case is still available to the alien, should the immigration officers, after the completion of the present inquiry, either attempt to enforce the old warrant or issue a new one. Should the government attempt to execute the old warrant, then the inquiry of fairness will extend to all the proceedings from the beginning to the present time. See cases above, and Ex parte Nunez, 9 Cir., 1937, 93 F.2d 41; Nishimura Ekiu v. United States, 1892, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146; United States ex rel. Vajtauer v. Commissioner, 1927, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; Tod v. Waldman, 1924, 266 U.S. 113, 45 S.Ct. 85, 69 L.Ed. 195.¹ Before that stage is reached, we cannot interfere. As said in Impiriale v. Perkins, 1933, 62 App.D.C. 279, 66 F.2d 805, 806:

"Since deportation proceedings are administrative and the action of the Secretary of Labor is intended by the statutes to be final, there is no regulatory power in the courts to control the course of such proceedings while pending in the Department.

"The jurisdiction of the courts is contingent, and usually to be exercised by a writ of habeas corpus ex post facto of an order of deportation." (Italics added.)

The old warrant has become functus officio because it was not executed within a reasonable time, and no excuse for the long delay appears. United States v. Wallis, 2 Cir., 1922, 279 F. 401; Caranica v. Nagle, 9 Cir., 1928, 28 F.2d 955; Seif v. Nagle, 9 Cir., 1926, 14 F.2d 416. Hence the present inquiry is a new inquiry or an investigation leading to the determination of the right of the alien to remain in the United States.

The order to answer was issued under the authority of section 152, 8 U.S.C.A., which states: "Any commissioner of immigration or inspector in charge shall also have power to require by subpœna the attendance and testimony of witnesses before said inspectors and the production of books, papers, and documents touching the right of any alien to enter, reenter, reside in, or pass through the United States, and to that end may invoke the aid of any court of the United States."

If we examine the section in which the clause appears, it seems in the wrong place. It is preceded by provisions relating to the right of inspectors to examine persons who seek admission into the United States and is followed by provisions penalizing those who seek to interfere with the performance of these duties.

However, it is a cardinal rule of statutory construction that effect will be given to legislative intent and legislative language, and that an interpretation should not be adopted which would make a provision meaningless or senseless. See Bird v. United States, 1902, 187 U.S. 118, 23 S. Ct. 42, 47 L.Ed. 100; Unity v. Burrage, 1880, 103 U.S. 447, 456, 26 L.Ed. 405. The right to "enter, re-enter, or pass through" the United States, of which the enactment speaks, could refer only to persons who seek admission, by seeking to enter for the first time, or to re-enter or to pass through the United States on their way to another country. But the words, "reside in the United States," could only refer to a person who is in the United States and desires to continue to reside therein. They were so interpreted in Loufakis v. United States, 3 Cir., 1936, 81 F.2d 966. The interpretation accords with the evident aim of the statute.

The power given to courts to command attendance before the Commissioner or Inspector and compel testimony to be given would be meaningless, unless we postulate that the Congress had in mind persons already within the United States. An alien, when he seeks admission to the United States, does not have the power to command what we shall or shall not do. We have the right to exclude whomever we wish and for any reason whatsoever, because we do not approve an alien's...