Whitfield v. Hanges

• Citation: 222 F. 745
• Decision Date: 22 March 1915
• Docket Number: 4175.
• Parties: WHITFIELD, Immigrant Inspector, et al. v. HANGES et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

222 F. 745

WHITFIELD, Immigrant Inspector, et al. v. HANGES et al.

No. 4175.

United States Court of Appeals, Eighth Circuit.

March 22, 1915

Syllabus by the Court

Where an alien is deprived of his liberty, or is about to be deported, by means of the abuse of the discretion, or the arbitrary action, of an immigration inspector, or other executive officer, or without a full and fair hearing on the charges against him, the power is conferred and the duty is imposed upon the courts of the United States to issue a writ of habeas corpus and relieve him.

An alien, as well as a citizen, is protected by the universal principle that no person shall be deprived of life, liberty or property without due process, and his hearing must be in accord with 'the fundamental principles which inhere in due process of law.'

Indispensable requisites of such a hearing are that the course of proceeding shall be appropriate to the case and just to the party affected; that the accused shall be notified of the charge against him in time to meet it; that he shall have such an opportunity to be heard that he may, if he chooses, cross-examine witnesses against him; that after all the evidence against him is produced and known to him, he may have time and opportunity to produce evidence and witnesses to refute it; that the decision or order shall be governed by and based upon the evidence at the hearing, and that only; and that it shall not be without substantial evidence taken at the hearing to support it.

That is not a fair hearing in which the inspector chooses or controls the witnesses, or prevents the witnesses the accused desires from appearing or testifying.

Where an inspector acquires, or has such complete control of important witnesses in a case that they will not testify without his call or request, and will do so upon his call or request, his refusal, on the request of counsel, to call or request them to testify prevents the accused from obtaining the benefit of their testimony as effectually as a prevention by physical force or prohibition.

Although the rule of the Secretary be fair and just in appearance, yet if it is applied and administered by public authority with an evil eye and an oppressive hand, so as to deprive a person of his fundamental rights, it is inconsistent with law and void.

The fixing by the inspector of the time when the alien may inspect the warrant, or the time when he may have counsel, so late as to deprive him of a substantial portion of the benefit of an inspection of the warrant, and of the benefit of counsel, is an abuse of discretion which renders the hearing unfair.

Whether or not the weight of the evidence in substantial conflict sustains the charges against an alien is a question in the exclusive jurisdiction of the immigration officers and is not reviewable by the courts.

But administrative findings and orders quasi judicial in character are void if there was no substantial evidence to support them, or if they are contrary to the 'indisputable character of the evidence.' Whether or not there was any substantial evidence at the hearing to sustain a finding, order, or report of an immigration officer, to the effect that an alien is guilty of the charges against him, is a question of law the power and duty to determine which is vested in the courts.

That is not a fair hearing in which the inspector after the hearing imports into the case and bases his finding and recommendation of deportation upon hearsay and rumor of facts, regarding which there was no evidence at the hearing and which the accused had no notice of and no opportunity to refute.

Where an alien resident is deprived of his liberty in proceedings for his deportation under a finding and report of an inspector upon an unfair hearing which cannot support an order of deportation, the issue of a writ of habeas corpus is not premature or unauthorized, although the Secretary of Labor has not yet rendered his decision whether or not he shall be deported.

Where it is decided, after a hearing on a writ of habeas corpus that the alien is deprived of his liberty after an unfair hearing, which cannot sustain an order of deportation, the court may, and it should, proceed to try de novo the question whether or not he is guilty of the charges against him before absolutely discharging him, and meanwhile it may admit him to bail.

F. A. O'Connor, U.S. Atty., of New Hampton, Iowa (Grover M. Neese, Asst. U.S. Atty., of Ft. Dodge, Iowa, on the brief), for appellants.

J. E. Williams, of Mason City, Iowa (Williams & Breese and Rule & Shipley, all of Mason City, Iowa, on the brief), for appellees.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SANBORN Circuit Judge.

George Hanges, Demetrios Lamper, Steve Pantza, and Peter Francas, citizens of Greece, were resident aliens who had been admitted to the United States pursuant to its acts of Congress prior to 1907. Two of them owned and operated the Main Cafe in Mason City, Iowa, where they had lived for years, and two of them were employed in the cafe. They were arrested by the immigrant inspector on October 24, 1913, and such proceedings were had that he found them guilty, recommended their deportation, and held them in confinement in the charge of the sheriff when, on their petition, the court below issued a writ of habeas corpus and, after a return thereto, an answer to the petition, and a full hearing, ordered their discharge. The inspector has appealed from this order on the grounds that the hearing of the appellees was full and fair, and that he committed no abuse of discretion or arbitrary action.

The deportation of the appellees was recommended by the inspector, and they were held in confinement under his finding that they were guilty of the charge that they were aliens employed by or in connection with a music or dance hall, or other place of amusement, habitually frequented by prostitutes, or where prostitutes gather, that they were aliens connected with the management of a house of prostitution, and that they were aliens found receiving, sharing or deriving benefit from a part or the whole of the earnings of prostitutes. Act Feb. 20, 1907, c. 1134, Sec. 3, 34 Stat. 899, as amended by Act March 26, 1910, c. 128, Sec. 2, 36 Stat. 264 (Comp. St. 1913, Sec. 4247). Before entering upon a review of the proceedings of the inspector, the hearing he gave to the appellees, and the finding and recommendation of deportation he made to his superior, under which appellees were held, it is well to call to mind the rules and principles which govern proceedings in cases of this nature.

A full and fair hearing on the charges which threaten his deportation and an absence of all abuse of discretion and arbitrary action by the inspector, or other executive officer, are indispensable to the lawful deportation of an alien. Where, by the abuse of the discretion or the arbitrary action of the inspector, or other executive officer, or without a full and fair hearing, an alien is deprived of his liberty, or is about to be deported, the power is conferred and the duty is imposed upon the courts of the United States to issue a writ of habeas corpus and relieve him. The Japanese Immigrant Case, 189 U.S. 86, 100, 101, 23 Sup.Ct. 611, 47 L.Ed. 721; Chin Yow v. United States, 208 U.S. 8, 10, 12, 13, 28 Sup.Ct. 201, 52 L.Ed. 369; Low Wah Suey v. Backus, 225 U.S. 460, 468, 32 Sup.Ct. 734, 56 L.Ed. 1165; Ex parte Petkos (D.C.) 212 F. 275; United States v. Chin Len, 187 F. 544, 109 C.C.A. 310; United States v. Williams (D.C.) 185 F. 598, 604; United States v. Williams (D.C.) 193 F. 228, 231.

An alien, as well as a citizen, is protected by the prohibition of deprivation of life, liberty, or property without due process and the equal protection of the law. This principle is universal. It applies 'to all persons within the territorial jurisdiction of the United States without regard to any differences of race, of color, or of nationality. ' Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 Sup.Ct. 1064, 30 L.Ed. 220; U.S. Rev. St. Sec. 1977 (2 Comp.Stat. 1913, Sec. 3925).

An alien is entitled to a hearing upon and a decision of the charge that he has violated the acts of Congress and is therefore liable to deprivation of his liberty and deportation, according to 'the fundamental principles that inhere in due process of law. ' It is not competent for an inspector, or the Secretary of Labor, or any executive officer--

'arbitrarily to cause an alien who has entered this country and has become subject in all respects to its jurisdiction and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him an opportunity to be heard upon the questions involved, his right to be and remain in the United States. No such arbitrary power con exist where the principles involved in due process of law are recognized. ' Japanese Immigrant Case, 189 U.S. 86, 100, 101, 23 Sup.Ct. 611, 47 L.Ed. 721; Wong Wing v. United States, 163 U.S. 228, 237, 238, 239, 16 Sup.Ct. 977, 41 L.Ed. 140.

Indispensable requisites of a fair hearing according to these fundamental principles are that the course of proceeding shall be appropriate to the case and just to the party affected; that the accused shall be notified of the nature of the charge against him in time to meet it; that he shall have such an opportunity to be heard that he may, if he chooses cross-examine the witnesses against him; that he may have time and opportunity, after all the evidence against him is produced and known to him, to produce evidence and witnesses to refute it; that the decision shall be governed by and based upon the evidence at the hearing, and that only; and that the decision shall not be without substantial...