United States v. Williams

• Decision Date: 02 February 1911
• Citation: 185 F. 598
• Parties: UNITED STATES ex rel. BOSNY et al. v. WILLIAMS, Commissioner of Immigration.
• Court: U.S. District Court — Southern District of New York

185 F. 598

UNITED STATES ex rel. BOSNY et al. v. WILLIAMS, Commissioner of Immigration.

United States District Court, S.D. New York.

February 2, 1911

Charles W. Bacon, for relators.

Henry A. Wise, U.S. Atty., and Daniel D. Walton, Jr., Asst. U.S Atty.

HOLT District Judge.

This is a writ of habeas corpus to test the legality of the detention of Arthur Bosny and Lambertine Bosny, his wife, who are held under an order for their deportation issued by the Secretary of Commerce and Labor on the ground that they were proprietors of a house of prostitution. The act of March 26 1910, amending the immigration act of February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U.S. Comp. St. 1901, p 447) amended by Act March 26, 1910, c. 128, 36 Stat. 263) makes all aliens guilty of carrying on such a business liable to deportation. These aliens have resided several years in this country. The immigration act provides, in substance, that the person arrested shall have a hearing before the commissioner or an inspector, but it does not provide for the details of the practice. The rules prescribed by the Secretary of Commerce and Labor in relation to immigration provide for the method of procedure in such cases. These rules prescribe that upon an application to the Secretary of Commerce and Labor for a warrant of arrest a statement of the facts, supported, if practicable, by affidavits, is to be submitted, and thereupon, if it appears to the Secretary that a case is made out, a warrant of arrest shall be issued. Thereupon the person arrested shall be given a hearing before the Commissioner of Immigration, or any immigration inspector, and, 'at such stage thereof as the person before whom the hearing is held shall deem proper, the alien shall be apprised that he may thereafter be represented by counsel. * * * If counsel be selected, he shall be permitted to be present during the further conduct of the hearing * * * and to offer evidence.

' In actual practice the usual procedure is as follows: There are a number of officers called inspectors of immigration, connected with the office of the commissioner. Complaint that an alien is in this country in violation of law is usually made by one of these inspectors. The information upon which he bases the charge may have been obtained by himself upon investigation, or may have been furnished to him by others. Frequently such information is furnished by the city police, or by enemies of the person charged, acting through malice or revenge. Affidavits are obtained and are sent by the inspector to the Secretary at Washington, who, if he thinks a proper case is made out, issues a warrant for the arrest of the persons charged. This warrant is usually intrusted for execution to the inspector who has made the charge, and he subsequently usually takes entire charge of the case. After the aliens have been taken to Ellis Island, they are held in seclusion and not permitted to consult counsel until they are first examined by the inspector, under oath, and their answers taken by a stenographer. After this preliminary inquisition has proceeded as far as the inspector wishes, the aliens are then informed that they are entitled to have counsel, and to give any evidence they wish in respect to the charge. Thereafter a further hearing is had before the inspector, at which further evidence may be given by him, and the aliens may appear by counsel and offer evidence in their own behalf. The inspector thereupon reports whether in his opinion guilt has been established, and the evidence taken and the inspector's finding are sent to the Secretary of Commerce and Labor at Washington, who thereupon makes an order either for the deportation or the release of the aliens. It is, of course, obvious that such a method of procedure disregards almost every fundamental principle established in England and this country for the protection of persons charged with an offense. The person arrested does not necessarily know who instigated the prosecution. He is held in seclusion, and is not permitted to consult counsel until he has been privately examined under oath. The whole proceeding is usually substantially in the control of one of the inspectors, who acts in it as informer, arresting officer, inquisitor, and judge. The Secretary who issues the order of arrest and the order of deportation is an administrative officer who sits hundreds of miles away, and never sees or hears the person proceeded against or the witnesses. Aliens, if arrested, are at least entitled to the rights which such a system accords them; and, if they are deprived of any such right, the proceeding is clearly irregular, and any order of deportation issued in it invalid.

It is claimed in this case that the prescribed procedure has not been followed, and that there have been such irregularities in the procedure as to invalidate the result. The charge is that in this case the inspector influenced the aliens, partly by promises of help and favorable treatment, and partly by intimidation, not to employ counsel in the case.

The substantial facts bearing upon this question appearing in evidence are these: The warrant of arrest when issued was delivered to an inspector named Tedesco. Tedesco testifies that the police department of the city reported the case to the immigration office and furnished the witnesses. The warrant appears to have been based on an affidavit of Alexander Nicolay, who describes himself as a police officer of the city of New York, engaged in obtaining evidence against and the deportation of alien prostitutes and criminals.

On September 23d Tedesco, accompanied by Nicolay and a policeman named Cohen, arrested Mr. and Mrs. Bosny at their apartment. The officers testify that Tedesco read to them the warrant of arrest in English and in French. Mrs. Bosny asked permission to be taken to a friend's, Mrs. Karger, who lived in the neighborhood, in order to leave the key of the apartment and her cat and birds with her. Thereupon Nicolay took Mrs. Bosny to Mrs. Karger's. Mr. Karger and Mrs. Karger testify that at that time Mr. Karger suggested that Mrs. Bosny should have counsel, and that Nicolay said that that would not be necessary, that they would probably be released in a day or two. Nicolay denies that he said so. Then Nicolay and Mrs. Bosny rejoined Tedesco and Mr. Bosny, and later Tedesco took Mr. and Mrs. Bosny down to Ellis Island. They both testify that on the trip down and on various occasions after they arrived at Ellis Island Tedesco advised them not to have a lawyer; that sometimes he said he would do all he could for them, and at other times he said that their case would not be as favorably considered by the Secretary at Washington if they had a lawyer, and, in substance, Mr. and Mrs. Bosny both assert that Tedesco all the time while they were under arrest sought to make them believe that he and the Secretary and the Department generally would take umbrage at their employing a lawyer, but would be inclined to be lenient with them if they did not employ a lawyer. Tedesco denies that he ever told them not to employ a lawyer on the trip down or at any other time. On the day after they were taken to Ellis Island their friend Mrs. Karger requested Jonas T. Hegt, a lawyer who was accustomed to practice in immigration cases, to go to Ellis Island and offer to act for the Bosnys. Hegt testified that he went there on the day after their arrest, and asked for permission to interview the aliens, which was refused because the preliminary hearing had not been had. He then asked permission to send a note to Mrs. Bosny, advising her that he was there. Permission was given, and he sent in a card telling Mr. and Mrs. Bosny that Mr. Karger had sent him to them, and that he understood that they wished the services of an attorney, and a verbal message came back saying that they did not want his services yet. Thereupon Mr. Hegt returned to New York. Early in October Mr. Karger telephoned Mr. Hegt again, and said that Mr. and Mrs. Bosny were to have their hearing the following morning. Thereupon Mr. Hegt went again to Ellis Island, where he saw Mr. Tedesco. Tedesco said that they did not want a lawyer, and that, if he did not believe his statement, to send for them and have them tell him. They were sent for, and he saw them in the office, and they said that they did not want an attorney, and thereupon Mr. Hegt returned to New York. Later Mr. Bacon, their attorney in this proceeding, met Mrs. Bosny when at Ellis Island on other business. She asked him if he could attend to their case. He said that he could not do so without a permit from the commissioner. He returned to New York, and the next morning called up the law division of the office by telephone and applied for permission to see Mrs. Bosny, and was told in reply that she had been taken to the law division and had stated there that she did not wish to have a lawyer.

Thereupon Mr. Bacon did nothing further until October 26th, when he received a letter in French, a copy of which, with the translation, is as follows:

'Department of commerce and Labor.

'Immigration Service.

'U.S. Immigration Station, 'Ellis Island,

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