United States v. Uhl

• Decision Date: 13 January 1914
• Docket Number: 177.
• Citation: 211 F. 628
• Parties: UNITED STATES ex rel. BAUDER v. UHL et al.
• Court: U.S. Court of Appeals — Second Circuit

211 F. 628

UNITED STATES ex rel. BAUDER v. UHL et al.

No. 177.

United States Court of Appeals, Second Circuit.

January 13, 1914

McLaughlin Russell, Coe & Sprague, of New York City (Rufus W. Sprague Jr., and Charles B. Alling, both of New York City, of counsel), for appellant.

H Snowden Marshall, U.S. Atty., of New York City, and Kenneth M. Spence, Asst. U.S. Atty., of New York City.

Before COXE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge.

This is an inquiry concerning the proposed deportation of the relator under the Immigration Act of February 20, 1907, as amended by the acts of March 26, 1910, and March 4, 1913. The case comes here on an appeal from an order dismissing a writ of habeas corpus. The relator is a citizen of Switzerland who has for some time had his domicile in the city of Chicago.

Section 2 of the act provides that certain specified classes of aliens shall be excluded from admission into the United States. Among the excluded classes are 'persons who procure or attempt to bring in prostitutes or women or girls for the purpose of prostitution or for any other immoral purpose.'

It appears that in June, 1910, the relator attempted to enter the United States, but was detained by the immigration officials at Ellis Island and a hearing was had before a Board of Special Inquiry, which board made a finding that he was attempting to bring a woman into the country for an immoral purpose and he and the woman were ordered deported. The order was carried into effect. After his deportation the relator almost immediately returned under his right name to the United States arriving at New York on July 12, 1910, on the Kronprinzessin Cecilie of the North German Lloyd Line, and was duly admitted. In 1911 he made a business trip abroad returning again under his own name and without any disguise in August, coming in at the Port of New York as a first class passenger on the Kaiserin Augusta Victoria. In the early part of the year 1913 the Immigration Inspector at Chicago in a letter to the Commissioner General at Washington suggested his deportation. About that time the Swiss government was trying to have the relator extradited for alleged fraudulent sales of mining stock in Switzerland. The extradition proceeding failed, the United States Commissioner at the close of a hearing lasting several weeks found that the charges were not supported by the evidence and that there was no probable cause shown that a crime had been committed. The extradition proceeding having failed the immigration authorities caused the arrest of the relator on a warrant of the Department of Labor dated March 7, 1913, but not acted on until the middle of July when the arrest was made and relator was brought from Chicago to New York for deportation. Thereupon a writ of habeas corpus was issued by the United States District Court for the Southern District of New York to review the deportation order. On September 30th an order was entered dismissing the writ and was taken to this court.

Section 20 of the act provides:

'That any alien who shall enter the United States in violation of law, and such as become public charges from causes existing prior to landing, shall, upon the warrant of the Secretary of Commerce and Labor, be taken into custody and deported to the country whence he came at any time within three years, ' etc.

Section 21 provides:

'That in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of this act, or that an alien is subject to deportation under the provisions of this act or of any law of the United States, he shall cause such alien within the period of three years after landing or entry therein to be taken into custody and returned to the country whence he came' etc.

It thus appears that what the government is now attempting is not the exclusion but the deportation of the relator under section 20 of the act. And in order that the government may have the right to deport him he must have entered the United States 'in violation of law.' The government alleges that he entered in violation of law because at the time he was admitted he belonged to one of the excluded classes under section 2, as his admission in June, 1910, had been refused under the finding of the Board of Special Inquiry confirmed by the Secretary of Labor that he was attempting at that time to bring in a woman for an immoral purpose. The relator contends that the statute is not to be construed to mean that a person who has once been refused admission because at the time under a disability imposed by the statute is forever thereafter to be regarded as belonging to the excluded classes so that if at any subsequent time he enters the country he is to be held to have entered in violation of law and to be subject to the penalties of the act. It is said that such a construction of the act would lead to absurd results. That if a person was once refused admission on the ground of pauperism and subsequently became a wealthy man he could not enter the country except in violation of law. That might possibly depend upon the course he pursued, and upon whether a subsequent investigation duly made disclosed the fact that he was at the time of his second application entitled to admission. We do not need to consider that question until it arises. In the case at bar the relator allowed the original finding to stand unreversed so that each time he subsequently came into the country we must hold that he entered in violation of law.

The relator took out his 'first papers' for naturalization in September, 1911. That was after the date of his last arrival in this country which was in August of the same year. But it was prior to the issuance of the warrant for his arrest, which occurred as already stated, in July, 1913. The date of the 'first papers' is, however, entirely immaterial. The act relates to the deportation of 'aliens' and there is no question but that the relator was an 'alien' when these proceedings were instituted. A declaration of intention to become a citizen does not make the alien a citizen. An alien remains such until naturalization is complete. Frick v. Lewis, 195 F. 693, 697, 116 C.C.A. 493; In re Moses (C.C.) 83 F. 995; Minneapolis v. Reum, 56 F. 576, 6 C.C.A. 31; Berry v. Hull, 6 N.M. 643, 30 P. 936.

The relator claims that the proceedings for his deportation were not undertaken within the statutory period. He contends that the time within which he should have been deported, if properly subject to deportation, expired July 12, 1913, since his first entry after his exclusion was on July 12, 1910. The warrant of arrest was not served upon him within that period. This claim is not wholly devoid of support in the adjudicated cases. In Redfern v. Halpert, 186 F. 150, 108 C.C.A 262, the Fifth circuit held that the three-year period begins to run from the date of the alien's first entrance into the country. A similar ruling was made in the Ninth circuit in United States v. Nakashima, 160 F. 842, 87 C.C.A. 646. We are not able to concur in this interpretation of the statute. It is contrary to our understanding of it as appears in...