Prentis v. Seu Leung, 203 F. 25

203 F. 25 | 7th Cir. | 1913

KOIIESAAT, Circuit Judge

(after stating the facts as above). [1] Under the act of February 20, 1907, to regulate the immigration of aliens into the United States, any Chinese alien who enters the United States unlawfully may be summarily deported by order of the Secretary of Commerce and Labor at any time within"three years. United States v. Wong You et al., 223 U. S. 67, 32 Sup. Ct. 195, 56 L. Ed. 354, decided by the United States Supreme Court on January 22, 1912. In Chin Yow v. United States, 208, U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369, the court says:

“But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong.”

In the same case it is said:

“If the petitioner was not denied a fair opportunity to produce the evidence that lie desired or a fair though summary hearing, the case can proceed no further.”

Substantially to the same effect is Tang Tun v. Edsell, Chinese Inspector, 223 U. S. 673, 32 Sup. Ct. 359, 56 L. Ed. 606, under Act Aug. 18, 1894, c. 301, 28 Slat 390 (U. S. Comp. St. 1901, p. 1303), and Act Feb. 14, 1903, c. 552, 32 Stat. 825 (U. S. Comp. St. Supp. 1911, p. 114).

[2] in Prentis v. Di Giacomo, 192 Fed. 467, 112 C. C. A. 605, we held that the finding of the executive department and its order therein “is .not subject to judicial review or intervention through the writ of habeas corpus or otherwise, except for failure or denial of the administrative. heariug intended by the act.” To the same effect are Prentis v. Cosmas, 196 Fed. 373, 116 C. C. A. 419, and Prentis v. Stathakos, 192 Fed. 469, 112 C. C. A. 607, both decided by this court.

It was held in Yamataya v. Fisher, 189 U. S. 101, 23 Sup. Ct. 614, 47 L. Ed. 721, that one of the principles of “due process of law” is that:

“Xo person shall be deprived of bis liberty without opportunity at some time to be beard before such officers in respect ol' the matters upon which that liberty de-ponds — not necessarily an opportunity upon a regular set occasion and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act.”

“We cannot,” says the court in Lee Lung v. Patterson, 186 U. S. 176, 22 Sup. Ct. 798, 46 L. Ed. 1108, “assent to the proposition that an officer or tribunal, invested with jurisdiction of a matter, loses that jurisdiction by not giving sufficient weight to evidence, or by rejecting proper evidence, or by admitting that which is improper.”

In Erick, U. S. Immigrant Inspector, v. Lewis, 195 Fed. 693, 115 C. C. A. 493, it is held by the Circuit Court of Appeals for the Sixth Circuit that:

“Where a fair, though summary, hearing has been given, in ascertaining whether there is or is not any proof tending to sustain a charge involved in a case like this, it is not open to courts to consider either admissibility or weight of proof according to ordinary rules of evidence, even if it believe the proof was insufficient and the conclusion wrong. The question is whether anything was offered that tends, though slightly, to sustain the charge.”

Therefore, if the hearings given appellee by the Secretary of Commerce and Labor were such hearings as were intended by the act, and appellee had a fair, even though it may have been a summary, opportunity to establish his right to remain within the United States, the District Court was without authority to dispose of the same on the merits.

There is no question here as to what was before the Secretary. That evidence is all made a part of the petition for and the return to the writ, and the statements of the latter are not traversed. From this it appears that the statements of appellee, together with the testimony of his witnesses, were all before the Secretary when the warrant of deportation was issued. Among these was appellee’s original statement, in which he admitted that he was born in China and smuggled into the United States. The earlier statement was made a part of the record of said so-called second hearing. It can hardly be contended that the Secretary was not at liberty to accept the first statement and disbelieve the second. If this worked wrong upon appellee, he has only himself to blame.

[3] We are of the opinion that this first examination was a part of the hearing contemplated by the statute, and that the Secretary was at liberty to so treat it, even to the extent of disbelieving the second and more deliberate statement. No reason is perceived why appellee can claim that he was taken advantage of, or why he was unable to tell the truth on the first examination. The second thought, taken after advice of counsel, cannot have the probative weight that initial and uninstructed statements have under circumstances such as here exist. The hearing provided by the statute is such a hearing as gives the accused an opportunity to acquaint the department with the facts of his case. Appellee had abundant facilities afforded him for that purpose. The hearing before the inspector, taken together with the original statement, was without any unfair influences or impositions upon appellee. The department has the power to make such investigations as were here made, otherwise deportation must await the tedious processes of a court hearing, which was never contemplated by the act. We are unable to see how the Secretary could make the examination more formal. The District Court should have refused to consider the matter upon the merits, and, after hearing the facts as above stated, should have denied the writ.

For these reasons, the judgment of the District Court is reversed, with direction to quash the writ, and dismiss the petition for habeas corpus at petitioner’s cost, and to remand the petitioner to the custody of the inspector.