United States v. Tod

• Citation: 1 F.2d 246
• Decision Date: 25 July 1924
• Docket Number: No. 322.,322.
• Parties: UNITED STATES ex rel. FINK v. TOD, Commissioner of Immigration.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

1 F.2d 246 (1924)

UNITED STATES ex rel. FINK v. TOD, Commissioner of Immigration.^*

No. 322.

Circuit Court of Appeals, Second Circuit.

July 10, 1924.

On Application for Reargument, July 25, 1924.

Harry Kopp, of New York City (Max J. Kohler, Louis Marshall, and Morris L. Stern, all of New York City, of counsel), for appellant.

William Hayward, U. S. Atty., of New York City (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for respondent.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS, Circuit Judge.

This is an appeal from an order dismissing a writ of habeas corpus in a proceeding arising under the Immigration Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 959, 960, 4289¼a-4289¼u). At the time of the issuance of the writ the relator was held in the custody of the respondent under a warrant of deportation. In some of its aspects it is an unusual and extraordinary case. It appears that Pauline Fink, the relator and appellant herein, arrived at the port of New York with her father and four brothers and sisters on November 29, 1920. At the time of her arrival in this country she was in her thirteenth year, having been born in Poland on April 15, 1908. The relator is a deaf mute, having become such in her second year as a consequence of an attack of typhus. There was no opportunity for her to receive in Poland any education, because of the absence of institutions for deaf mutes in the place where she resided. On the arrival at Ellis Island she was examined by two government surgeons, who certified that she was feeble-minded, having failed to discover her deaf-mutism. This examination took place at Ellis Island on December 3, 1920. The matter was taken up with the officials at Washington, with the result that the Secretary of Labor directed that the alien be granted a further hearing before a medical board concerning her feeble-mindedness, and that the parties interested in her be accorded the privilege of having a private practitioner, of their own choosing, present at the examination if they so desired. Thereafter further examinations took place, as will presently more fully appear.

The relator was temporarily discharged from the immediate custody of the immigration officials and admitted under a surety company bond. She was allowed to enter a public school for the deaf, maintained by the department of education of the city of New York. The Secretary of Labor further extended her time to remain in the country. This power he possessed under section 18 of the act providing for deportation (section 4289¼j). It was not until May 28, 1923, 2 years and 6 months after her arrival at Ellis Island, that the Second Assistant Secretary of Labor notified her bondsmen to effect her deportation on or before June 9, 1923. On June 21, 1923, the alien surrendered herself at Ellis Island, and on the same day a writ of habeas corpus was served on the Commissioner of Immigration on her behalf. A return to the writ was made on June 26, 1923.

The District Judge dismissed the writ and remanded the relator, and in doing so filed, on October 3, 1923, a memorandum opinion stating briefly his opinion. In it he said: "In my judgment the Secretary is entitled, and indeed required, to act upon the balance of opinion of the medical men who by statute are authorized to pass on cases such as this." The opinion filed contained no comment upon the right to submit the question to successive boards, but declared: "It cannot be said that there was a lack of evidence justifying the Secretary's decision." It is evident that the District Judge thought that the Secretary was concluded by the judgment of the medical authorities.

The Immigration Act of 1917 (39 Stat. part 1, p. 874, c. 29, § 3 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4287¼b) provides as follows: "That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feeble-minded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; persons with chronic alcoholism; paupers; professional beggars; vagrants; persons afflicted with tuberculosis in any form or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living. * * *" The language is: "That the following classes of aliens shall be excluded." And among the classes so to be excluded are "feeble-minded persons." Persons afflicted with deaf-mutism are not expressly mentioned in the statute.

It is to be kept in mind that the power to admit or exclude aliens into the country is not vested in the judicial department of the government, but is in its political departments. It is to be exercised by the executive authority in the manner prescribed by Congress, except in so far as the judicial department is authorized to intervene. And Congress has intrusted to the administrative officers of the government the final determination of the facts upon which the right of the alien to enter depends, and no judicial tribunal can re-examine the evidence on which the administrative officers act, and cannot controvert its sufficiency, unless expressly authorized to do so by law. Fong Yue Ting v. United States, 149 U. S. 698, 713, 13 Sup. Ct. 1016, 37 L. Ed. 905. The proceedings to determine whether the alien has the right to enter are administrative, and not judicial, and the immigration officials, authorized by Congress to determine the questions of fact which arise in the course of the proceedings, are administrative and not judicial officers, and their decisions are not technically res judicata.

The alien was given a hearing before a board of special inquiry on November 30, 1920. This hearing was deferred, pending the result of the medical examination of the alien; and at the deferred hearing on December 3, 1920, there was filed the medical certificate of two examining surgeons. It certified that they had examined the alien and that she was found to be feeble-minded. The alien was thereupon ordered excluded and deported. Section 16 of the act of 1917 (section 4289¼i) provides that any alien certified for any mental defect may appeal to the board of medical officers of the United States Public Health Service, which shall be convened by the Surgeon General of that service. A second medical examination took place before such a board on December 28, 1920. This board consisted of three surgeons which unanimously certified as follows: "We have to-day examined the above-named alien, and find that she is suffering from deaf-mutism and is feeble-minded. The certificate previously issued in her case is hereby affirmed."

Thereupon, and on January 15, 1921, the Commissioner of Immigration at Ellis Island was duly informed by the Acting Secretary of Labor that the father and his children, other than the relator, were admitted. As respects the relator the Commissioner was informed as follows: "Owing to the distressing conditions of Poland at the present time, the deaf child is admitted to the care of her parents for six months, with bond that at the expiration of that period she shall be returned to Poland, accompanied by her father or by some accompanying substitute for him."

The bond was furnished, and the surety company was advised that the relator was to leave the United States on or before July 20, 1921. On that date the Secretary extended the time for the relator's departure for 60 days, with the privilege of a rehearing as to her mental condition. But the re-examination did not take place until September 28, 1921. On that date she was again examined by a board of medical officers, which certified that she was suffering from feeble-mindedness and deaf-mutism. It confirmed the medical certificates previously issued. This was a second board of medical officers, which is an appeal board, and their certificate was the third medical certificate issued in this case.

On October 26, 1921, it appears another medical examination took place before a board of medical officers convened by the Surgeon General. This was a third appeal board. It confirmed the previous medical certificates issued, and certified that it found no change in the relator's mental condition. The time was again extended for the alien's deportation. The surety company not having produced the alien in accordance with the terms of the bond, a warrant for the relator's arrest was issued under date of September 14, 1921; but the Assistant Secretary of Labor directed that service of the warrant should be deferred, and it does not appear that it was ever served. Instead, the term for her deportation was further extended.

On February 15, 1922, the relator was again examined at Ellis Island before a board of medical officers. This was a fourth appeal board. It certified that the relator was feeble-minded and confirmed the prior medical certificates. On March 21, 1922, the Assistant Secretary of Labor deferred further proceedings for a period of one year, and directed that at the end of that time there should be submitted a further medical certificate as to her condition.

On March 22, 1923, she once more was examined before a board of medical officers convened by the Surgeon General. This was the fifth appeal board. It sat at Washington and certified as follows: "Examination of the alien was conducted at the time and place above indicated. A careful review was made of the Department of Labor records in this case, together with inquiry into the environment of this alien abroad and while a pupil in public school No. 47, School for the Deaf, No. 225 East Twenty-Third street, New York City, in which institution she has been a pupil for...