United States v. Wallis

• Decision Date: 18 January 1922
• Docket Number: 105.
• Parties: UNITED STATES ex rel. ROSS v. WALLIS, Immigration Com'r.
• Court: U.S. Court of Appeals — Second Circuit

279 F. 401

UNITED STATES ex rel. ROSS v. WALLIS, Immigration Com'r.

No. 105.

United States Court of Appeals, Second Circuit.

January 18, 1922

Charles Recht, of New York City (Isaac A. Hourwich, of New York City of counsel), for appellant.

William Hayward, U.S. Atty., of New York City (Herman L. Falk and John Holley Clark, Jr., Asst. U.S. Attys., both of New York City, of counsel), for appellee.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The stipulation just referred to obliges us to assume that in every respect, except the place of his birth, the relator is a fit subject for deportation.

The only inquiry before us is: Where was Ross born? This being a question of fact, its determination has been committed by Congress, not to the courts, but to the Department of Labor. Judicial inquiry is by habeas corpus alone; under that writ we can only examine the legality of departmental action, and that under the statute the department is not bound by the 'rules of evidence' is firmly established. Morrell v. Baker (C.C.A.) 270 F. 577, and cases cited. Since the only legal limitation upon departmental procedure is that a hearing, fair, though summary, must be accorded, hearsay evidence is admissible. Cases supra.

But even if Ross had been tried in a common-law court on the issue here tendered, hearsay would have been admissible because the place of birth or death is comprehended in the term 'pedigree,' concerning which hearsay is always admissible. Wigmore, Sec. 1502.

The argument for appellant rests largely on the assertion that the burden of proving Ross' alienage was on the department, and that burden was not borne. United States v. Dart (D.C.) 251 F. 394. Whether in a proceeding of this nature, without rules of evidence and with no rigid procedure, the phrase 'burden of proof' is of any importance, is a point we need not discuss, and one upon which no opinion is expressed.

But assuming that the burden of proof was upon the Department, the evidence submitted to us clearly shows that for nearly half a century Ross maintained that he was born in Scotland, and during that period his relation to the United States was continuously that of an alien. He only became ignorant concerning his nativity and race after he appreciated the possible, if not probable, effect upon him of the vigilance of the Department of Labor. A board of inquiry,...