86 F.2d 113 | 2d Cir. | 1936
Thomas Ver Pault, a boy of fifteen, arrived from Ireland on the S. S. Samaria on November 27, 1935, and sought admission as the son of a native-born citizen, Alfred Ver Pault. Before a Board of Special Inquiry the relatrix testified that she was an alien and the applicant was her son, born at sea when she was returning from the United States to Ireland in January, 1920; that his father was Alfred Ver Pault, to whom she was never married. The boy was excluded from admission on the ground -that he was a quota immigrant without an immigration visa, and this decision was affirmed by the Board of Review. Thereafter affidavits were submitted in support of the claim that the applicant’s father and mother had contracted a common law marriage in the state of New York in 1918. The case was reopened and new evidence submitted. But the Board of Special Inquiry decided the issue against the applicant and again ordered his exclusion ; and again its decision was affirmed by the Board of Review. This writ of habeas corpus was then sued out by the mother on behalf of her son upon the ground that the hearing was unfair and the Board’s decision arbitrary and unsupportable.
As the District Judge pointed out, there was substantial evidence to support the finding that no common-law marriage was contracted by the applicant’s parents. The findings of the administrative tribunals are conclusive if supported by any evidence; the court is not to weigh the evidence pro and con. United States ex rel. Shore v. Corsi (C.C.A.) 61 F.(2d) 761; Kwock Jan Fat v. White, 253 U.S. 454, 457, 40 S.Ct. 566, 64 L.Ed. 1010. Hence the contention that the excluding decision was so arbitrary and unsupportable as to justify judicial intervention must fail.
More may be said in favor of the contention that the hearing was unfair. It is urged that the Board displayed a hostile bias to the claim of marriage and did not question the father in respect to vital points on which he might have corroborated the testimony of the applicant’s mother. In brief summary the mother’s story was as follows: In the autumn of 1918 Alfred Ver Pault proposed marriage without a church ceremony because, he said, being in the army he had to keep the marriage secret. She was a young Irish girl, seventeen or eighteen years old, who had been in this country about a year. He told her the marriage would be just as legal as if a priest officiated and she believed him. He gave her a wedding ring and took furnished rooms in which they lived as hus
It must be remembered that under the Rules of the Department an applicant for admission is not allowed to be represented by an attorney at the examination which the Board of Special Inquiry con-, ducts, and the Board’s findings of fact, if supported by any evidence, are conclusive upon the courts. Hence it is of peculiar importance that the facts upon which the alien’s rights depend be fairly investigated by the examining inspectors. Since the applicant’s mother had not asserted at the first hearing the existence of a common-law marriage, it was natural that the claim should be viewed with skepticism when advanced later. That it was so viewed is most plainly apparent from the final inquiry addressed to the husband: “Will you please tell us who invented this common law marriage business in this case?” But we do not rest our decision upon the view that the Board members acted with conscious bias or from a predetermination that the mother’s story was false. Rather, we think that they labored under a misapprehension of the law and supposed that Ver Pault’s secret intention not to contract a marriage would control regardless of what intent he may have expressed to the woman. If the hearing was conducted in a bona fide effort to ascertain the truth, such an error of law is the only possible explanation of the failure to interrogate him regarding his acts and words on the occasion which she asserted constituted a present contract of marriage. We believe that an error of law which precludes investigation of the essential facts, makes the hearing unfair and justifies judicial intervention no less than does a mistake of law which results in
The order is. reversed, and the cause remanded for further proceedings in conformity with this opinion.