Tambara v. Weedin

RUDKIN, Circuit Judge. This is an appeal from an order denying an application for a writ of habeas corpus. Section 3 of the Act of February 5, 1917 (39 Stat. 875 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289J4b]), excludes from the United States, among other aliens, those “who are found to be and are certified by the ex [300] amining surgeon as being mentally or physically, defective, such physical defect being of a nature which may affect the ability of such alien to earn a living.” The examining surgeon so certified in this case, and the board of special inquiry found as follows: “This applicant appears to be very deaf. During the hearing it was necessary for the interpreter to speak loudly, directly into applicant’s ear, to enable him to understand the questions. He was unable to hear the ticking of a watch held within one inch of either ear.” Again: “It is very difficult for the interpreter to make the applicant understand an oral question, and a part of the questions were propounded to him by writing.” The appellant had a fair hearing; there was not even a conflict in the testimony, and the finding or conclusion of the board of special inquiry, and the Secretary of Tabor, that such a defect might affect the ability of the appellant to earn a living, is warranted by the testimony. Beyond this we are not at liberty to inquire. Deafness to such a degree would necessarily bar tfie appellant from many occupations, and would militate in a substantial way against his ability to earn a living. Offers of employment from one or more persons cannot change the rule. Whether promises of support from near relatives would have that effect, as seems to have been held in the recent case of United States v. Tod (C. C. A.) 294 Fed. 820, we need not inquire. The order is affirmed.