United States v. Wiley, No. 9187.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: EVANS, KERNER, and MINTON, Circuit
• Citation: 160 F.2d 92
• Parties: UNITED STATES ex rel. DOUKAS v. WILEY et al.
• Decision Date: 05 March 1947
• Docket Number: No. 9187.

160 F.2d 92 (1947)

UNITED STATES ex rel. DOUKAS
v.
WILEY et al.

No. 9187.

Circuit Court of Appeals, Seventh Circuit.

February 7, 1947.

Rehearing Denied March 5, 1947.

160 F.2d 93

Theodore G. Wood and Leo J. Lamberson, both of South Bend, Ind., for appellant.

Alexander M. Campbell, U.S. Atty., of Fort Wayne, Ind., James E. Keating, Asst. U. S. Atty., of South Bend, Ind., and Harry Kobel and Milo Rouse, Immigration Service, both of Detroit, Mich., for appellee.

Before EVANS, KERNER, and MINTON, Circuit Judges.

KERNER, Circuit Judge.

Appellant, an alien, appeals from an order dismissing his petition for a writ of habeas corpus, arising out of an order of deportation issued December 7, 1933, on the ground that appellant was in the United States in violation of 8 U.S.C.A. § 136(c) and § 155(a).

This is appellant's second appeal. Notwithstanding that the court in the first appeal, Dukas v. Zurbrick, 6 Cir., 56 F.2d 518, 519, held that "A full hearing was given to appellant and no irregularity or

160 F.2d 94

erroneous application of rule of law intervened to invalidate the executive action," he says that the issues now presented were not considered in the first appeal, and contends that he was not afforded a fair hearing in the warrant proceedings conducted by the Immigration Service

In the District Court appellant did not testify in his own behalf. In that court the evidence consisted of the record made before the immigration inspector and a stipulation of facts to the effect that from 1922 to 1933, at appellant's request, the deportation order was not executed because appellant was plaintiff in certain litigation.

An examination of the record thus made discloses that prior to March 1, 1922, a complaint had been made as to the character of the places appellant was operating and that he was not a citizen, and that on March 1, 1922, appellant stated to the immigration inspector that at the time of his last entry into the United States he was an alien and was afflicted with gonorrhea. A warrant of arrest was issued by the assistant Secretary of Labor on March 2, 1922, reciting: "Whereas, from evidence submitted to me, it appears that the alien Theodore Doukas * * * has been found in the United States in violation of the Immigration Act of February 5, 1917, for the following among other reasons: `That he was afflicted with gonorrhea, a Loathsome Contagious disease, at the time of his entry.'"

On March 2, 1922, a hearing was conducted by the immigration inspector who had made the application for the warrant of arrest. At this hearing the inspector advised appellant of his right to be represented by counsel and the hearing was continued to permit appellant to obtain counsel. The hearing was resumed on March 10, 1922; appellant was present and was represented by Emil W. Columbo, his attorney. The warrant of arrest was read to appellant, and he was informed that the purpose of the hearing was to afford him the opportunity to show cause why he should not be deported to the country from whence he came. During the hearing appellant was charged with having violated § 155(a) of the Act and his counsel was advised that he could offer, if he desired,...