164 F. 152 | U.S. Circuit Court for the District of Southern New York | 1908
The petitioner came originally to this country in 1901, and lived for six years at Pittsburg, in the state of Pennsylvania, where he established his domicile. In December, 1907, he went to Italy for a visit, and upon his return to this country May 8,
Notwithstanding the language of section 754, it has been the frequent practice in this district to present habeas corpus petitions in deportation cases signed and verified by others than the person detained. In such cases, often for lack of time, as well as because of infancy or incompetency, it would be impossible to present a petition signed and verified by the person detained, and the language of section 760 plainly contemplates petitions so executed. Rule 4, relating to the admission ■and exclusion of aliens, reads as follows:
“Rule 4. Application of Immigration Act. — The provisions of the immigration act apply to all aliens seeking to enter the United States, except accredited officials of foreign governments, their suites, families, and guests. The act also prescribes the conditions of their admission to or exclusion from the United States, or any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone. The act becomes effective when such aliens arrive from any foreign country, or other place without the jurisdiction of the United States, or from the Canal Zone. The provisions of the immigration act do not apply to aliens who have once been duly admitted to the United States, or any waters, territory, or other placo subject to the jurisdiction thereof, .proceeding to or from the continental territory of ihe United States, except aliens coming from the Canal Zone, and except Japanese or Korean laborers coming from Hawaii, with passports limited to Hawaii, Mexico, or Canada. The admission of aliens coming from the Canal Zone is governed by the regulations applicable to aliens generally. The admission of Japanese or Korean laborers to the continental territory of tho United States is governed by the provisions of the executive order of the President embodied in rule 21 hereof.”
The words relied upon by the petitioner are:
“The provisions of the immigration act do not apply to aliens who have once been duly admitted to the United States, or any waters, territory, or other place subject to the jurisdiction thereof, proceeding to or from the continental territory of the United States, except aliens coming from the Canal Zone, and*154 except Japanese or Korean laborers coming from Hawaii, with passports limited to Hawaii, Mexico, or Canada.”
This language is certainly exceedingly obscure, but I think it must be be intended to apply to a different class of aliens than those mentioned in the previous sentence as arriving “from any foreign country or other place without the jurisdiction of the United States or from the Canal Zone.” It must apply to aliens (with certain immaterial exceptions) who have been admitted to the United States or its dependencies, and are proceeding either from the dependencies to the continent, or from the continent to the dependencies. Accordingly this provision doefe not apply to the petitioner, who arrived from a foreign country, and not a dependency.
Act Aug. 18, 1894, c. 301, § 1, 28 Stat. 390 (U. S. Comp. St. 1901, p. 1303), provides:
“In every ease where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final unless reversed on appeal to the Secretary of the Treasury.”
The jurisdiction of the Secretary of the Treasury was subsequently transferred to the Secretary of Commerce and Labor.
The Circuit Court of Appeals of the Third Circuit in Rodgers v. United States, 152 Fed. 346, 81 C. C. A. 454, and of the Sixth Circuit in United States v. Nakashima, 160 Fed. 842, have made it clear that their construction of the act of 1903 accords with that of the petitioner, viz., that an alien who has been admitted to the United States and established,a domicile here is not subject to exclusion upon his return to this country. But in the first case the alien was discharged on the ground that he had not been afforded an appeal, and in the second an appeal upon this particular question to the Secretary of Commerce and Labor. For these reasons the courts held there was no final decision in those cases. If upon such an appeal the Secretary had affirmed the board in the one case, or the collector in the other, it is plain that the courts would have considered the decisions as final. And this appears to follow necessarily from the cases of Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082, and United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, and Pearson v. Williams, 202 U. S. 281, 26 Sup. Ct. 608, 50 L. Ed. 1029.
In the Case of Gonzales, 192 U. S. 1, 24 Sup. Ct. 177, 48 L. Ed. 317, to which the petitioner refers, the question was one of law as to the citizenship of the petitioner, going to the foundation of the jurisdiction of the immigration officers.
In this case, however, it being admitted that the petitioner is an alien, their jurisdiction is not open to dispute, and the only question is whether they have given an erroneous construction to the act in relation to this alien.
What has been said is equally true of the construction put by the board upon the words “crimes or misdemeanors involving moral turpitude.” Such a crime of violence as described by the petitioner,
The writ is dismissed, and the petitioner remanded; but, to give an opportunity for appeal, let the United States attorney give five days’ notice of the entry of an order hereafter.