United States v. Tod, 31.

• Decision Date: 05 November 1923
• Docket Number: 31.
• Parties: UNITED STATES ex rel. BOXER v. TOD, Com'r of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

294 F. 628

UNITED STATES ex rel. BOXER v. TOD, Com'r of Immigration.

No. 31.

United States Court of Appeals, Second Circuit.

November 5, 1923

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

Julius Gottlieb, of New York City, for relator.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

This is an appeal from an order made in the District Court on January 12, 1923, which sustained a writ of habeas corpus and directed that David Koch, the relator herein, be immediately released by the immigration authorities at Ellis Island.

It appears that the relator, Koch, is an alien and a citizen of the Republic of Poland. He arrived on the steamship Mauretania at the Port of New York on November 25, 1922. He was granted the usual hearing before a board of special inquiry on November 27, 1922. At that hearing testimony was taken. The following is an excerpt from his testimony:

'Q. What did you do before leaving for the United States? A. Worked as a tailor. Doing cheap tailoring. I was making pants for children; knee pants.

'Q. Are you qualified in any other branches of tailoring? A. No.

'Q. Were you supporting yourself abroad? A. Yes.

'Q. Why did you leave this country in 1914? A. I went to my native town in 1914, for the purpose of selling a house in order to come out to America with my wife and children, and in the meanwhile the war came on and I was prevented from doing so, and in the meantime two of my children and wife died.

'Q. Have you any children in the United States? A. No.

'Q. Have you any resources besides the money with you? A. No.'

The relator Boxer was examined. He testified that Koch had married his sister's daughter. The following is an excerpt from Boxer's testimony:

'Q. Did you send for your nephew? A. Yes, to take care of him and see that he does not become a public charge. He was here nine or ten years ago. He worked. I don't know why he left.

'Q. Where is his wife? A. In Europe.

'Q. When did you last receive word from them? A. A few months ago.

'Q. Has he any children in the United States? A. No; three children living in Europe; one married.

'Q. Did you send him money? A. Yes, passage. His sister-in-law Hanna Sundtag. Everybody contributed $50 or $75.'

Koch was then asked and answered as follows:

'Q. Does not Mr. Boxer, your deceased wife's uncle, know that your wife and two children have died? A. It happened only three months ago. One died every once in a while.'

He was tested as to his ability to read. This he was unable to do-- the record revealing the following:

'Tested. Cannot read class 5-- 1593-- Yiddish. Cannot read the same.

'Class 5-- 3683, Hebrew. Reads some, but does not understand.

'Cannot read.'

A medical certificate was introduced and made a part of the record. It certified that the alien had been examined and found to be undersized.

While in his preliminary statement to the board the alien claimed to have paid his own passage, it was brought out during the course of the hearing that his passage was paid for in part by relatives. He arrived with only $2. He had no other resources.

He was excluded from admission into the United States by the board of special inquiry as 'unable to read,' as a person 'likely to become a public charge,' and as an 'assisted alien.'

The board of special inquiry having unanimously voted to exclude him, informed him that he was denied admission, and that he had a right of appeal to the Secretary of Labor and asked whether he wished to appeal. He answered that he did. His appeal to the Secretary of Labor resulted in an affirmance of the order of exclusion. Thereafter he obtained a writ of habeas corpus. The respondent filed a return and the matter came on to be heard in the District Court. There are no minutes of that hearing in the record, no minutes of it having been taken. But the record reveals that the judge ordered that the writ be sustained unless another hearing was granted 'upon the question whether David Koch sought admission to this country, fleeing from religious persecution, and that the findings of fact by the commission be returned to me forthwith. ' Prior to this hearing in the District Court no claim had been put forward and no suggestion made that the alien had come to the United States to escape from religious persecution. But after this order a rehearing took place and the alien was examined at some length.

The following is an excerpt from the testimony given at the second hearing:

'Q. Where did you reside before coming to the United States in November last? A. In the same town (Drohobytz).

'Q. Where were you working? A. In Drohobytz. I was selling dry goods, and I was peddling fruit.

'Q. How long were you doing that? A. From 1917 to 1920 I was selling dry goods, and from 1920 to 1922 I was peddling fruit.

'Q. When did you stop peddling fruit? A. I stopped peddling fruit five months ago, after I was robbed during a pogrom.

'Q. Of what were you robbed during the pogrom? A. Everything movable in the house was robbed, and then the house was put on fire and my wife and my children were killed.

'Q. Who killed your wife and children? A. A robber bank.

'Q. Where did this band come from? A. Peasants from the vicinity.

'Q. Did they attack everybody in the town? A. Many people were attacked in the town. One of the bandits threw a bayonet after me, which struck me in the neck and remained there. It was extracted later and then the wound healed. (Exhibits scar at back of neck.)

'Q. Did this band kill your wife and two children? A. First they were assaulted and then they were killed.

'Q. When? A. In September.

'Q. Were other people in the village also killed? A. About 40 or 50 people.

'Q. Of what race were those who were killed? A. Jewish.

'Q. All Jewish? A. Yes.

'Q. Were any Gentile people attacked? A. No.

'Q. When did you write to Mr. Boxer in Brooklyn, N.Y., requesting him to assist you in coming to the United States? A. A day in Tishri (which corresponds to second half of August).

'Q. Then it was your intention to come to the United States before the pogrom took place? A. Not wholly.

'Q. Did you write this Mr. Boxer for money and affidavits? A. Yes.

'Q. Was your purpose in coming to the United States to improve your condition in life, or were you coming here to escape from any religious persecution that you may have suffered? A. I am coming here to improve my economical condition and also to escape a possible recurrence of a pogrom. It is generally believed there that it may happen again under the present circumstances. * * *

'Q. Do you expect your daughter and son-in-law to come to the United States? A. I do not know. * * *

'Q. How many children did you have living with you at Drohobytz? A. Two children.

'Q. Were they boys or girls? A. A boy and a girl.

'Q. How old were they? A. The boy was 25 years and the girl was 21 years.

'Q. When you state that your wife and children were assaulted, what do you mean by that? What was the nature of the assault? A. Rape was committed on the wife and daughter.

'Q. How did the death of your son come about? A. The son was defending them and while resisting them they shot him.

'Q. Previous to the actual outbreak of this disturbance which you say lasted for 36 hours, had you been living there and conducting your business with a sense of security? A. Yes.

'Q. Then what was the reason for your writing to your relative in America to send you money and affidavit as far back as August? A. Business was not very good and I started to eat, ready cash money, and I thought of writing to my relative in America I could come out to America, but in the meanwhile the outbreak came. * * *

'Q. Did you recognize any of the persons which participated in this outrage? A. Yes, I recognized some of them; they were captured and arrested.

'Q. Were any measures taken against the perpetrators by the authorities, and, if so, what kind? A. They are now under arrest, detained for trial.

'Q. Is not your presence necessary as a witness in the case? A. I left my statement in the court and this was recorded. The robbers confessed to the crime. * * *

'Q. Your passport was obtained August 7, 1920, which would indicate that it was your intention at that time to proceed to the United States? A. Yes.

'Q. Why didn't you come to the United States at that time? A. My earning conditions improved and I decided to remain.'

It appears that after the second hearing was concluded the board unanimously affirmed its former decision for the reason given at the first hearing.

A supplemental return was then made to Judge Mack on January 12, 1923, the testimony taken at the second hearing being made a part of the supplemental return. On the same day he entered an order directing 'that David Koch be released by the authorities at Ellis Island forthwith. ' And it is from that order that this appeal was taken.

It is urged upon this appeal that the judge was in error in sending the matter back for a further hearing. We do not think so, for a reason now to be stated.

The immigration authorities proposed to exclude this...