United States ex rel. Georgian v. Uhl

271 F. 676 | 2d Cir. | 1921

Lead Opinion

HOUGH, Circuit Judge

(after stating the facts as above). [1,2] That deportation proceedings are wholly administrative is settled. The Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721; United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. Review by the District Court, or on appeal by this court, is limited to habeas corpus (United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917); and such review extends only to the inquiry whether the discretionary powers of the executive (large as they are) have been exceeded. There is no judicial power to review or reverse a finding of fact based upon evidence. Low Wah v. Backus, 225 U. S. 460, 32 Sup. Ct. 734, 56 L. Ed. 1165; Gegiow v. Uhl, 239 U. S. 3, 36 Sup. Ct. 2, 60 L. Ed. 114. And this court has recently pointed out that, while we may inquire on habeas corpus as to whether the deportation proceedings have been fair, the rules of evidence do not in strictness apply (Diamond v. Uhl [C. C. A.] 266 Fed. 34), and the hearing, though it must be fair, may be summary, and the findings of fact made by the Executive Department are conclusive (Rakics v. Uhl [C. C. A.] 266 Fed. 646).

[3] This petitioner is obviously a man of education, and by his command of languages and acquaintance with affairs well able both to defend himself and to lead others. But mere personal abstention from violence, or even from violent language, does not secure immunity, if the result of the gentlest and most guarded speech is to advocate or teach that which the statute condemns. The “philosophic” anarchist is an anarchist nevertheless. Lopez v. Howe, 259 Fed. 401, 170 C. C. A. 377. Since in this or in any similar case we cannot be concerned with the weight of the evidence, but only with the existence thereof, it is not useful to state or comment upon what Georgian was proved to have done, what he admitted having done, or what he himself said of his own teachings, advocacy, or opinions.

We express no opinion as to the result upon our minds of the evidence adduced at the deportation hearing, beyond this, viz. there was evidence, indeed it was admitted, that though he did not and does not believe in the immediate overthrow of the government of the United Stales that position is not the result of any affection for the same or approval of this republic, nor of any objection to force and violence per se, but only results from an opinion that the time is not ripe. Ripeness is to be attained by teaching, and by the dissemination of the style of literature which it is his business to circulate; when the time is ripe, it is to be hoped that force and violence will not be necessary, but they will be appropriate as soon as they are likely to prevail.

However fantastic the above-outlined social program may seem, it is impossible to say that a professed and avowed effort to hasten its consummation is not evidence of that which the statute forbids.

On these grounds the order below is affirmed.

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Dissenting Opinion

WARD, Circuit Judge

(dissenting). While I think the relator had a fair trial, I am sure there was no proof whatever of the charges upon which he is being deported, viz. that he advocated the overthrow of the United States government by force or violence, or that he advocated or taught the unlawful destruction of .property. There was proof of conversations with various government witnesses before his arrest as to his beliefs, but they admitted that they had never heard him advocate the things for which he is being deported.

In the deportation proceeding, after his arrest, he was minutely examined as to his beliefs, and admitted that in his opinion the soviet form of government would be the best form for this country, but advocated bringing it about by persuasion and absolutely repudiated the use of force or violence. His examination throughout displays, in my opinion, a perfectly frank and conscientious statement of his beliefs, which, whether the immigration authorities like them or not, carmot be used to sustain the charge for which he is being deported.

Knowledge of the contents of all the books he sells in his book store cannot be imputed to him, much less approval' of all they contain.

I think the order should be reversed.