United States v. Swing, 16169.

• Decision Date: 21 December 1956
• Docket Number: No. 16169.,16169.
• Parties: UNITED STATES of America ex rel. Rosbel DE LA FUENTE, Appellant, v. General J. H. SWING et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F.2d 759 (1956)

UNITED STATES of America ex rel. Rosbel DE LA FUENTE, Appellant, v. General J. H. SWING et al., Appellees.

No. 16169.

United States Court of Appeals, Fifth Circuit.

December 21, 1956.

C. E. Blodget, Edinburg, Tex., Roy D. Buckley, Mission, Tex., for appellant.

Brian S. Odem, Asst. U. S. Atty., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., for appellees.

Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

By a petition for habeas corpus and for an injunction, appellant, a Mexican citizen who had admittedly entered the United States illegally, sought to be released from custody under, and relieved from the compulsion of, an order of the immigration authorities entered in a deportation hearing held March 16, 1954. This order excluded him from admission to the United States and ordered him deported to Mexico on the ground that in the year 1949, at a hearing in connection with an effort then made to enter the United States on a four months' passport issued by the American Consul, he had admitted the commission of a crime involving moral turpitude, to-wit, perjury.

His claim was not that he was not subject to deportation for having made an illegal entry, indeed he admitted that he was. It was that he did not commit perjury as charged and found and was, therefore, not subject to exclusion as within one or more of the classes of aliens excludable by law at the time of such entry.

The respondents joining issue with petitioner's claims, there was a full hearing on the facts, and the district judge, on a full statement of the facts found and concluded that petitioner had failed to sustain his allegations and denied the writ of habeas corpus prayed for.

Aggrieved thereat, petitioner is here insisting: that the evidence does not sustain the findings, the order must be reversed, and the appellant must be given a discharge.

We agree with the statement made by the district judge in his opinion, in substance that, in view of petitioner's family circumstances, with an American wife and children in the United States, and the fact that nothing is charged against him but illegal entry and an admission made by him some seven years ago that he had committed the crime of perjury, the stark result of the exclusion order will, unless relieved against, be tragic. We must, however, as the district judge did, leaving to those whom the statute has charged with them considerations of amelioration, conclude that...