United States ex rel. Ross v. Wallis

279 F. 401 | 2d Cir. | 1922

HOUGH, Circuit Judge

(after. stating the facts as above). The stipulation just referred to obliges us to assume that in every respect, except the place of his birth, the relator is a fit subject for deportation.

[1,2] The-only inquiry before us is: Where was Ross born? This being a question of fact, its determination has been committed by Congress, not to the courts, but to the Department of Uabor. Judicial inquiry is by habeas corpus alone; under that writ we can only examine the legality of departmental action, and that under the statute the department is not bound by the “rules of evidence” is firmly established. Morrell v. Baker (C. C. A.) 270 Fed. 577, and cases cited. Since the only legal limitation upon departmental procedure is that a hearing, fair, though summary, must be accorded, hearsay evidence is admissible. Cases supra.

[3] But, even if Ross had been tried in a common-law court on the issue here tendered, hearsay would have been admissible, because the place of birth or death is comprehended in the term “pedigree,” concerning which hearsay is always admissible. Wigmore, § 1502.

[4] The argument for appellant rests largely on the assertion that the burden of proving Ross’ alienage was on the department, and that burden was not borne. United States v. Dart (D. C.) 251 Fed. 394. Whether in a proceeding of this nature, without rules of evidence and with no rigid procedure, the phrase “burden of proof” is of any importance, is a point we need not discuss, and one upon which no opinion is expressed.

But, asstuning that the burden of proof was upon the Department, the evidence submitted to us clearly shows that for nearly half a century Ross maintained that he was born in Scotland, and during that period his relation to the United States was continuously that of an alien. Fie only became ignorant concerning his nativity and race after he appreciated the possible, if not probable, effect upon him of the vigilance of the Department of Labor. A board of inquiry, confronted with several decades of consistent assertion of Scotch birth, might well give credence to such assertions, as against the mere ignorance of later years.

The order appealed from is affirmed; but there remains a matter disclosed rather by admissions at bar than hy anything in the appeal book. In respect of this relator there appears to exist a situation not unlike that which existed in regard to Chinese, who entered the United States from Canada before recent changes in the exclusion statute. See United States v. Sisson, 230 Fed. 974, 145 C. C. A. 168. As there was a time when Chinese persons who had entered from Canada could be deported to Canada only, and Canada refused to receive them, so it is here suggested that Scotland is the only country to which Ross can be deported, and that the representatives of Great Britain refuse him the passport necessary to land.

[5] Though this record does not demand present decision on this question, it is pointed out that the right to deport does not include any right of indefinite imprisonment under the guise of awaiting an opportunity for deportation.

[6, 7] This and every other deportation order requires the proper official to return the alien to “the country whence he came,” and for that purpose “to purchase transportation for the alien.” Under familiar law, this necessarily means that the transportation is to be obtained and the deportation effected within a reasonable time. What is a reasonable time varies with circumstances; during the World War it was a matter of even judicial cognizance that opportunities for deportation were rare and long delayed. We now take cognizance of the fact that peace has been declared, and regular communication with the British Isles re-established, and we therefore express our opinion that unless this relator, or any other person similarly situated, be actually deported within four months after such alien has exhausted his legal remedies, any further or other detention under pretense of awaiting opportunity for deportation would amount, and will amount, to an unlawful imprisonment, from which relief may be afforded by a new habeas corpus.