United States ex rel. D'Amato v. Williams

193 F. 228 | S.D.N.Y. | 1909

HAND, District Judge

(after stating the facts as above). [1] I think it is quite clear that in fule 23 the word “stowaway” is used to indicate one who steals his passage, and I do not mean to decide whether that rule is valid or not, for I do not think it is necessary here. Possibly one who steals his passage, and who concedes that he steals his passage, may be deprived of a hearing before a board of special inquiry. I am not prepared to say that that board is necessary where there is nothing for them to decide. If the alien concedes such facts, perhaps any hearing is unnecessary. It is quite true that the statute makes no exception to the necessity of a board of inquiry in the case of any alien; where its terms clearly could not have been meant to apply, possibly I need not follow its formal letter. This, however, is an academic question at present, as I view it.

[2] It is enough here that this person is an alien. I do not think that aliens are only those who may be registered by the ship’s master in the manifest of passengers required by the act. If this were true, the immigration authorities would have no right' whatever to keep the alien in custody at all, for their powers extend only to those who are described as aliens in the act. 'This man does not concede that he is a stowaway within the meaning of the rule. He has been denied any hearing before the board of special inquiry, and at least he was entitled to a determination upon that issue. As that hearing has been denied him, he has been denied rights due to him under the statute, and I think the writ must: go.

[3-61 The question must then be determined: What further disposition shall be made? Under Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369, it seems to me that, once 1 have taken jurisdiction, I must dispose of the question as to the alien’s freedom. It. is true that the issue there was citizenship; hut the character of the issue, is irrelevant, so long as upon it depends the right of the relator to enter the country, the unlawful deprival of which right is, under Chin Yow v. United States, supra, an unlawful imprisonment, hlr. Weissager suggests that I may send him back to the immigration authorities with direction for hearing before the board of special inquiry; hut this presupposes a right of review of their proceedings, which I do not understand I have. I think but one question is to be determined hy me, and that is whether he is wrongfully detained. The preliminary question, in determining that, is whether lie has been denied the right which the statute vouchsafes him. Then, if I decide he has been denied these, I must determine whether he is entitled to liis enlargement, and that question brings up whether he is excluded within the terms of the statute or not. I cannot determine that question without further facts, and, in order to obtain those facts, there must he a hearing. The question will arise whether an alien may he deported who is innocently brought to this country in violation of law tinder the meaning of section 19. I have not yet proof before me that he was not upon the ship’s manifest, but let us suppose that he was not. Was it the intention of the act that an alien should lie deported in case the ship’s master failed to include him in the manifest, either willfully or negligently?

There is no question hut that under section 18 an alien lauded at another pla.ee than that designated by the immigration officer shall be deported, lor the act so states. The provisions in regard to manifests, however, contain no such provision, although, like section 18, they provide for penalties upon the ships’ masters who fail to enter the aliens. I think I cannot disregard the distinction between the wa.y these sections are framed. It is true that under section 19 the alien is literally “brought to this country in violation of law.” If that is enough to authorize the deportation of an alien innocently brought in through the unlawful act: of the ship’s master, then the provision, under section 18, ivas unnecessary, for either section 19 governed it, or sections 20 and 21, and both had general provisions for deportation. The special provision laid down for the enforcement, of manifests, which contain no provision for deportation, seems to me to indicate that Congress meant to limit the first words of section 19 to the excluded classes mentioned in section 2. I confess I have some readiness to accept this construction of the law, as I am not inclined to visit the sins of the ship’s master upon the alien, provided they are not in privity with him. I quite realize the difficulty in all cases of determining whether such collusion exists; hut the ship’s masters are under heavy penalties, and it must be nearly always quite easy to ascertain whether they violated the. provisions of their manifests or not. I do not think, therefore, if it shall be disclosed upon the hearing that the alien was not upon the ship’s manifest, he is therefore within section 19, and can be deported. He frankly concedes that his “ticket or passage is paid for with the money of another,” and that he has been “assisted by others to come.” It will therefore be necessary for him to show both “affirmatively and satisfactorily” that he does not “belong to one of the foregoing excluded classes.” Section 2.

I shall therefore direct a hearing to determine whether the alien is one who should be deported under the immigration laws. In determining this, I will consider first whether he is within any of the excluded classes in section 2, and will decide whether he affirmatively and satisfactorily shows that he is not. I will also decide whether the alien made any effort to conceal his passage, or whether he acted, in collusion with the ship’s master to have his name omitted from any manifest required by the act, if that were done. If I find that the alien made any effort to enter the country surreptitiously or as party to any plan for the violation of its laws in entry, I will remand him.