278 F. 227 | D. Mont. | 1922
The Department of Labor detains petitioner for deportation, as an alien who advocates and teaches the unlawful destruction of property. He assails the proceedings as unfair to an extent that denied him due process of law. Heard herein, the evidence is that January 19, 1920, the department issued a telegraphic warrant to arrest the alien upon a charge as aforesaid. This warrant was without probable cause, supported by oath or affirmation. That day, with it armed, the department’s 'inspector, Baldwin, arrested the alien. Immediately Baldwin administered an oath to the alien and interrogated him on material matters. He neither showed the evidence on which the warrant issued to the alien, nor waited the presence of counsel then selected by the alien, though the department’s rule 22 provides that he shall do both. What this evidence was, and that it was ever shown to the alien, does not definitely appear.
Baldwin then suspended the hearing, some time passed out the service, and some 11 months later the hearing was resumed before Inspector Andrews. The alien had counsel, but Andrews, over his objection, excluded the public. Andrews stated the alien should be sworn, and show cause why he should not be deported, but, on counsel’s objection, proceeded to introduce evidence in behalf of the government. Over objection, he presented what he said was a statement by Baldwin, neither dated, signed, nor verified, that Baldwin had purchased pamphlets, which are material matter. Likewise over objection, Andrews presented pamphlets which he said were those referred to in the statement, in an admitted receipt from the alien to Baldwin, and in the testimony of the alien at the hearing before Baldwin. Statement, receipt, and testimony are indefinite, save that the second and third are
The importance of the pamphlets and due proof of them is indicated by the Secretary of Labor’s decision of February 5, 1920, that against the alien the “charges are sustained by proof that he sold a number of I. W. W. publications in the record, which advocate and teach the unlawful destruction of property.” The alien requested that Baldwin be produced for cross-examination. Andrews expressed willingness, provided the alien state in writing what was expected to be proven by Baldwin and arrange for the latter’s compensation. This the alien refused. Department rule 24 provides that the alien shall have opportunity to cross-examine those who have testified for the government, and that the conditions aforesaid imposed by Andrews apply to witnesses for the alien for whom he desires subpoenas.
So, too, the great test of truth, cross-examination of adversary witnesses, provided by rule 24, was denied the alien. The conditions
The application of settled principles of finality of the department’s decisions upon conflicting evidence, certainly strained to the limit, denied the alien the relief of habeas corpus. The frequent great injustice in deportation proceedings in part has been incited by a theory that obsessed the department that it is enough to accuse the alien to justify deportation, if he cannot show cause to the contrary; that is, that the government need not prove him guilty, but, on the contrary, he must prove himself innocent.
This is seen in rule 22, paragraph 5, which provides that, the alien arrested, he shall have a hearing to “show cause” why he should not be deported; the warrant of arrest is likewise. Baldwin so advised the alien, and upon that pretense virtually made him a witness against himself, and Andrews insisted the hearing should so proceed, desisting, only upon counsel’s vigorous assertion of the alien’s rights. But though the theory be ostensibly receded from, who can tell to what extent the obsession secretly affects procedure, consideration, and weight of evidence, and decision — to what degree it prejudices the alien’s case? It is the psychology of executive power that would be arbitrary everywhere and responsible nowhere. In justice to the inspectors, they but obeyed instructions of the time, secret instructions, intended to take an unfair advantage of aliens rightfully relying upon public law and rules. Comment is' unnecessary. And that injustice aforesaid, doubtless only partly disclosed by many cases in the books, is responsible for the argument advanced that too often it is in relation to controversies between employers and employees, is a recognized strategy in breaking strikes, and that the employers’ interests are the occasion of both exercise and abuse of the power of deportation.
In the instant proceedings is evidence indicating a like controversy involving the union oí- I. W. W. and petitioner. Departmental witnesses, government agents, testify to some association with employers’ agents, and one frankly states that in Butte is “unquestionably some
. stantial evidence and fair, the department’s decision is conclusive upon the courts. At the same time every thoughtful person must deplore even a semblance of justification for the argument. In it is obvious evil and danger, that ought to be avoided and can be avoided, but only by public, humane and just administration of the law of deportation.
Writ granted.