United States ex rel. Waldman v. Tod

MAYER, Circuit Judge (after stating the facts as above). . Preliminarily it is important to point out that this return fails to set forth the details of the test applied either at the first or, second hearing. Section 3 of the immigration laws (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §' 428914b) clearly distinguishes between Hebrew and Yiddish. It provides, inter alia, as follows: “That after three months from the passage of this act, in addition to the aliens who are by law now excluded from admission into the United States, the following persons shall also be excluded from admission thereto, to wit: “All aliens over sixteen years of age, physically capable of reading, who cannot read the English language, or some other language or dialect, including Hebrew or Yiddish: * * * That for the purpose of ascertaining whether aliens can read the immigrant inspectors shall be furnished with slips of uniform size, prepared under the direction of the Secretary of Labor, each containing not less than thirty nor more than forty words in ordinary use, printed in plainly legible type in some one of the various languages or dialects of immigrants. Each alien may designate the particular language or dialect in which he desires the examination to he made, and shall be required to read the words printed on the slip in such language or dialect.” (Italics ours.) From the foregoing, it is evident that the Congress realized that there is a distinction between Hebrew, a classic language, and Yiddish. At . the hearing of August 30, 1922, the mother was tested solely in Yiddish. The department instructions contained in the letter of September 19, 1922, ordered a re-examination as to the mother’s ability in both Hebrew and Yiddish. For this double test, there is no warrant in the statute and any one familiar with these two languages knows that a person of the type of this relator might be able to read Yiddish and unable to read Hebrew. It will be observed also that, although the mother in her examination of September 19, 1922, stated that she could read a little in Yiddish, the board nevertheless reported that they examined her in both Hebrew and Yiddish. " This procedure in itself was contrary to the requirements of the statute and deprived relators of a hearing which to have been fair must, at least, have been in accordance with the statute. As other cases of this general character may arise, it is desirable to point out, also, that in making returns it should appear whether or not the details of the statutory test were conformed with. The statement that the test was given is not enough. “Class 5-1654” conveys no information to the court. There should, at least, be an understandable description of the test actually made by the board and of the respects in which the immigrant failed to read, so that the courts may be informed from the record as to whether or not the hearing was in accordance with statutory requirements. Both in "the original hearing and in the reexamination the minutes on this point set forth merely the conclusions of the boards of special inquiry as to the tests and not the facts upon which those conclusions were based. It is also important that the alien be clearly informed of his or her right to designate the particular language or dialect in which he or she desires the examination to be made. But there is a much more serious defect in this proceeding which goes to a question of jurisdiction. Section 17 of the immigration laws, being Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 428914Ü (noted [765] in the margin)1 is cautious to provide an absolute and fair right of appeal so that the exclusion of the alien shall not rest solely upon the determination of a board of special inquiry. In order to carry out the administrative requirements of this section, rule 17, containing various subdivisions, has been promulgated. Subdivision 1 of rule 17 provides: “Subdivision 1. Informing Alien as to Right of Appeal. Where an appeal lies the alien shall be informed of his right thereto, and the fact that he has been so informed shall be entered in the minutes.” Subdivision 9 of the same rule provides: “Subdivision 9. Reopening of Cases. Whenever a case is referred back to a board by the bureau or the department in order that additional evidence may be taken, such case is thereby reopened; and after the new evidence has been taken the board shall render a new decision, in which it may in its discretion reaffirm, alter, or reverse its previous decision. The mere action or referring back a case under such circumstances is not to be taken as, an indication of any disapproval by the bureau or the department of' the board’s decision or of what the new decision should be.” Subdivision 11 of the same rule provides: “Subdivision 11. Procedure in Reopened Cases. The hearing in a case reopened before a board of special inquiry shall be of the same nature and be subject to the same conditions, limitations, and privileges as an original hearing before such a body.” It is plain that both within the intent of the statute and in accordance with the rules made in pursuance thereof, subdivisionTl, supra, is here controlling. Subdivision 9 provides for the taking of additional evidence, and thereby the reopening of the case, “because obviously a previous record is incomplete” and then requires the board to render “a new decision” after the “new evidencé” has been taken, and it is made clear that the board is not to be controlled in its new decision by the fact that the case is referred back to the board by the bureau or the department. Obviously, it is not the original decision but the new decision which determines whether or not the alien shall be excluded. Such decision is clearly appealable under section 17 of the statute, and, if, there were any doubt whatever on that point, subdivision 11 of rule 17, supra, has made the procedure entirely clear. In the case at bar, the effect of the letter from Assistant Commissioner Landis, based on the bureau letter of September 15, 1922, was to inform the board of special inquiry that no appeal was necessary and that the board’s decision would be final. The point upon which Szejwa Waldman was to be examined, and which was to determine whether or not she and her children were to be excluded, was the vital question of her ability to read in conformity with the requirements of section 3 of the statute. If she had been informed of her right to appeal (rule 17, subd. 1), and had she appealed, it would doubtless have been realized by the Bureau at Washington that the ruling laid down in the letter of Assistant Commissioner Landis was contrary to the statute, as pointed out supra, or the bureau might have concluded that the actual test was not properly given. The point is that this relator was [766] deprived of the vital protection of appeal which the statute, and the rules have set up to insure a fair hearing for such applicants in accordance with law. There is a letter attached to the petition for the writ, written by Assistant Secretary of Labor Henning to United States Senator Colt. We must disregard this letter as not being a part of the record, which we have the power to review. But, referring to the letter merely for argumentative purposes, it is interesting to note that the language used by the Assistant Secretary is that the department had directed that the case be reopened “for the purpose of according the woman a re-examination as to her ability to read in Hebrew or in Yiddish.” It remains only to state that the record leaves the case of Zenia in a position where it must be assumed that the decision to exclude her was not affirmed by the Department of Labor, and the department may very well have disagreed with the local board as to whether or not the physical defect would interfere with the ability of Zenia to earn a living. The fate of the mother and the three children was placed entirely upon the question as to whether or not she could read Hebrew and Yiddish. While it seems to us that the reading test applied was not in accordance with the statute, we prefer to rest our decision upon the failure to accord to these relators an opportunity to appeal and this failure we regard as a fatal jurisdictional defect which renders the order of deportation void. In view of the foregoing, it is unnecessary to discuss the contention that the record shows that relators left their last permanent residence because *of religious persecution and hence that illiteracy was not a bar under section 3 of the statute. The order below is reversed, and the District Court is instructed to enter an order sustaining the writ and discharging relators. Note. “Section 17. That boards of special inquiry shall be appointed. * * * Each board shall consist of three members. * * ' * Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported. * * * Such boards shall keep a complete permanent record of their proceedings and of all such testimony as may be produced before them; and the decisions of any two members of the board shall prevail, but either the alien or any dissenting member of the said board may appeal through the commissioner of immigration at the port of arrival and the Commissioner General of Immigration to the Secretary of Labor, and the taking of such appeal shall operate to stay any action in regard to the final disposal of any alien whose case is so appealed until the receipt by the commissioner of immigration at the port of arrival of such decision which shall be rendered solely upon the evidence adduced before the board of special inquiry. In every case where an alien is excluded from admission into the United States, under any law or treaty now existing or hereafter made, the decision of a board of special inquiry adverse to the admission of such alien shall be final, unless reversed on appeal to the Secretary of Labor. * * * ” Footnotes [1] See note at end of case.