United States Ex Rel. Medich v. Burmaster

REEVES, District Judge. Held in custody pursuant to an order of deportation as an alien and a violator of the immigration law, appellant seeks his discharge by writ of habeas corpus. He was cast in the trial court and appeals. It is charged by the warrant of deportation that the appellant entered the United States at the port of International Falls, Minn., on or about the 1st of November, 1924 (appellant says June 1, 1924) and that such entry was in violation of the Immigration Aet of February 5,1917 (Comp. St. §§ 959, 960, 42891/4a-4289:ku) in this, to wit: “That he was a person likely to become a public charge at the time of Ms entry, and that he has been convicted of or admits the commission of a felony * * * involving moral turpitude, to wit, concealment of as *58 sets in bankruptcy, prior to Ms entry into tbe United States.” Tbe evidence was that tbe entry of November 1, or June 1, 1924, was a re-entry. He first came to tbe UMted States in the year 1913. His port of entry then was New York. He went thence to Minnesota, where be found employment. In 1921 be engaged in tbe grocery business at Kinney, Minn., and subsequently carried on tbe same business at BuH, Minn. He qMt said business on September 17, 1923. In October, 1923, be filed a voluntary petition in bankruptcy and was adjudicated a bankrupt. Thereafter, at tbe December, 1924, term of tbe District Court for Minnesota, be was indicted by a grand jury for having concealed assets from tbe trustee- in bankruptcy. Tbe offense, it was charged, was committed on tbe 25th day of April, 1924. To tMs charge appellant entered a plea of guilty and on January 13, 1925, be was sentenced to 18 months in tbe federal prison at Leavenworth, Kan. During Ms residence following Ms first entry, be filed declarations of eitizensMp, wMeh be never completed. On or about tbe 1st day of November, 1924, or, as claimed by appellant, on June 1,1924, and before Ms indictment, while engaged in the taxicab business at Kinney, Minn., he transported a company of teachers from that place to Ft. Frances, in tbe DomiMon of Canada, via International Falls. He remained at Ft. Frances a very short time, returning to tbe UMted States on the same day. His re-entry was, as stated, at International Falls. While imprisoned at Leavenworth, tbe Secretary of Labor issued Ms order for deportation. Appellant challenges tbe jurisdiction of tbe Secretary of Labor to issue tbe warrant of deportation, and, moreover, be asserts unfairness and illegality in the bearing on tbe warrant of arrest. 1. It will be observed that tbe crime confessed by appellant was committed on the 25th day of April, 1924, at BuM, Minn. His re-entry was either June 1 or November 1, 1924. Tbe crime, therefore, was committed prior to his re-entry. Two questions are here raised : (a) Was there such an absence and reentry as to bring tbe appellant within the inhibition of tbe statute against violations of tbe law by an alien within five years after entry? The Supreme Court of the United States, in tbe case of Lewis v. Frick, 233 U. S. 291, loc. cit. 297, 34 S. Ct. 488, 491 (58 L. Ed. 967) in referring to an alien previously domiciled in tbe United States, as in the instant case, announced tbe principle “that, if be departed from tbe country, even for a brief space of time, and on re-entering brought into tbe country a woman for tbe purpose of prostitution or other immoral purpose, be subjected himself to tbe operation of tbe clauses of tbe act that relate to tbe exclusion and deportation of aliens, tbe same as if be bad bad no previous residence or domicile in tMs country.” In Lapina v. Williams, 232 U. S. 78, loc. cit. 91, 34 S. Ct. 196, 200 (58 L. Ed. 515) in dealing with a re-entry case, tbe court said: “Upon a review of tbe whole matter, we are satisfied that Congress in tbe act of 1903 [32 Stat. 1213] sufficiently expressed, and in tbe act of 1907 [34 Stat. 898] reiterated, tbe purpose of applying its prohibition against the admission of aliens, and its mandate for their deportation, to all aliens whose Mstory, condition, or characteristics brought them within tbe descriptive clauses, irrespective of any qualification arising out of a previous residence or domicile in tMs country.” In tbe latter case tbe aben had “gone abroad for a temporary purpose and with tbe intention of returning.” Pursuant to tbe foregoing, it has been held in a large number of cases that tbe period in wMeb.an aben may be deported for tbe commission of an offense involving moral turpitude is to run, not from tbe time when be first entered tbe country, but from bis most recent entry, even though that entry be from a temporary and brief visit to a foreign country which was made with tbe intention to return here. Ex parte Piazzola (D. C.) 18 F.(2d) 114; United States ex rel. v. Flynn (D. C.) 17 F.(2d) 524; United States ex rel. Ciccerelli v. Curran (C. C. A.) 12 F.(2d) 394. (b) Did tbe crime, committed by appellant, involve moral turpitude? In seeking rebef from tbe burden of bis debts, appellant employed tbe bankruptcy laws of tbe government. These laws required Mm to list bis debts and sehedMe bis assets and deliver tbe latter to tbe trustee in bankruptcy. TMs was a solemn duty resting upon him. He invoked tbe aid of a beneficent law, but violated its requirements. Confessedly be withheld and concealed assets which be knew belonged to tbe trustee for distribution to bis creditors. TMs was done contrary to honesty and. good morals, and was shamefM wickedness on bis part, and thus involved moral turpitude. In re Disbarment of Coffey, 123 Cal. 522, 56 P. 448; In re Kirby, 10 S. D. 322, 414, 73 N. W. 92, loc. cit. 94, 39 L. R. A. 856, 859. 2. It is argued by tbe appellant that see *59 tion 19 of the Act of February 5, 1917 (8 USCA §’ 155), relating to the subject of immigration, only applied to those aliens “who admit the commission” of a felony prior to the entry into the United States, and that as the admission was made subsequently to the entry appellant is not within the inhibitions of the statute. We do not so construe the statute. A proper construction would make the statute applicable to any alien who had committed the crime within 5 years before his entry and at any time thereafter, whether before or subsequently to his entry he admits the crime. It is the crime that debars, and not the mere admission. 3. The fact that the appellant confessed to a crime punishable by imprisonment in the federal prison, and the very fact that he was actually incarcerated for a period of 18 months was sufficient to support the allegation in the warrant of deportation that he was likely “to become a public charge.” Ex parte Horn (D. C.) 292 F. 455; Ex parte Tsunetaro Machida (D. C.) 277 F. 239, loc. cit. 241; Ex parte Fragoso (D. C.) 11 F. (2d) 988; Ex parte Reeves (D. C.) 292 F. 766; Ex parte Britten (D. C.) 293 F. 61; United States v. Williams (D. C.) 175 F. 274. 4. The only other question in the case is whether the hearing given the appellant by the Secretary of Labor was unfair and illegal. Appellant was informed of the purpose of the hearing. The warrant of arrest was read to him and its contents carefully explained. He was given an opportunity to inspect the warrant and the evidence upon which it' was issued. Moreover, he was advised of his right to he represented by counsel and in answer to the question, “Do you desire to obtain the services of a lawyer?” he replied, “I have no money to secure a lawyer; I wrote to my relatives and friends to send me money to secure a lawyer, but they have not done so.” Thereupon the following question was propounded, to which an affirmative answer was returned: “Are you willing to waive your right to representation by counsel, and, if so, are you now ready to' proceed with this hearing?” Plaintiff never complained of any unfairness, and his testimony, both at the deportation hearing and at the trial of this case, was frankly and freely given. The hearing was fairly conducted. Bilokumsky v. Tod, 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221; Gambroulis v. Nash (C. C. A.) 12 F.(2d) 49. Moreover, the facts in this case are not in controversy. 5. The Congress has plenary power to prescribe terms of admission into the United States for all aliens. In the exercise of such power, it has granted to the executive branch of the government authority to enforce the prescribed terms. The act of the Secretary of Labor in the instant case was. in pursuance of law. The hearings granted were fairly and legally conducted and there was no abuse of discretion. The action of the trial court in discharging the writ of habeas corpus should be affirmed. It is so ordered.