United States v. Petkos

• Decision Date: 24 June 1914
• Docket Number: 1038.
• Citation: 214 F. 978
• Parties: UNITED STATES v. PETKOS.
• Court: U.S. Court of Appeals — First Circuit

214 F. 978

UNITED STATES v. PETKOS.

No. 1038.

United States Court of Appeals, First Circuit.

June 24, 1914

Asa P French, U.S. Atty., of Boston, Mass. (William C. Matthews Special Asst. U.S. Atty., of Boston, Mass., on the brief) for the United States.

Thomas E. Flanagan, of Boston, Mass., for appellee.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

DODGE Circuit Judge.

As the result of their hearings on February 8 and 10, 1913, the immigration officers at Boston voted on the latter date to exclude Petkos, '(1) as likely to become a public charge and (2) as being afflicted with a physical defect which will affect his ability to earn a living. ' On appeal to the Secretary of Commerce and Labor, this decision was affirmed March 8,1913, and an order of deportation issued.

Under section 2 of the Immigration Act as amended March 26, 1910 (36 Stat. 263), the second of these findings could have been made only upon a certificate to that effect by the examining surgeon. There was no such certificate then before the examining board. In the only medical certificate then before the examining board. In the only a mining surgeon had certified nothing more than that Petkos 'had psoriasis, a chronic noncommunicable skin disease, which will cause him to seek treatment from time to time. ' He had not certified that the disease would in any way affect the alien's ability to earn a living.

The record submitted to us consists only of the Immigration Commissioner's record, filed in the District Court March, 18, 1913, the day the hearing on the order to show cause issued on Petkos' petition for a writ of habeas corpus. But the opinion of the learned judge of the District Court distinctly states that at the hearing on this order to show cause the petitioner offered uncontradicted testimony as to the nature and probable effects of Petkos' disease. Except as its substance is given in the opinion, this evidence is not before us. The record does not show who the witnesses who testified were, nor what the testimony of each was.

There is also reason to doubt whether the Immigration Commissioner's record, which is all that there is before us, really contains all the proceedings before the immigration officers. It shows that after Petkos had appealed from the excluding decision on February 11th, and after a letter from the examining surgeon, dated February 16th, had been forwarded in compliance with a request for further information made by the secretary to whom the appeal lay, the secretary granted a request by Petkos, made February 19th, 'for permission to have a competent physician make an examination' of him. There is nothing in the record to show whether this examination was made and its result communicated to the secretary before he affirmed the excluding decision on March 8th, or whether Petkos failed to avail himself of the permission granted, so that the secretary acted in view of such failure.

The Immigration Commissioner's record, however, does show that the first of their findings above stated, viz., that Petkos was likely to become a public charge, was founded upon their mistaken assumption, unsupported by any lawful evidence, that his...