In the District Court of the United States, Western District of Washington, Northern Division.
In the Matter of the Application of Marie Miler for Writ of Habeas Corpus. } No. 2457. Filed May 14, 1913
Cushman, District Judge.
Petitioner seeks her discharge upon habeas corpus from the custody of the Commissioner of Immigration, who holds her under a warrant of deportation. She alleges that at the hearing for her deportation, she was not represented by counsel; that she had retained counsel before the hearing and had paid his fee, but he failed to appear and represent her; that she does not understand the English language and that the evidence on which she was ordered deported was a false affidavit, which she had no opportunity to controvert, owing to the fact that counsel, whom she had retained, did nothing to protect her rights. That the affidavit against her was made by a former partner to get rid of her to acquire her property. That she is about to be deported without due process of law and without an apportunity to be heard.
The answer of the Commissioner of Immigration shows
that the petitioner was arrested, charged with being an alien
found in the United States in violation of the Act of Congress
approved Feburary 20, 1907, as amended in the Act approved
March 28, 1910, to-wit: "That the said alien was connected
with a house of prostitution, and practiced prostitution and
derived benefits therefrom after she entered the United States";
that she was thereafter examined on January 13, 1913, by an
Inspector, under oath, as to her right to remain in the United States; that she was informed of her right to employ an attorney:
"that she then stated that she would have a friend of hers get an attorney, and that she afterwards did employ an attorney, to-wit: One Roger Marchetti, to represent her, and that thereafter on numerous and sundry occasions said Inspector, Thos M. Fisher, and other members of the Department of Commerce and Labor, stationed at Seattle, Washington, endeavored to induce the said Roger Marchetti to present any other or further evidence which he might have touching the matter of said deportation, and finally, on March 5, 1913, A.T. White, Inspector of said Bureau, personally delievered to said Roger Marchetti a letter notifying him, the said Roger Marchetti, that further proceedings would be had in said matter on March 7, 1913, at the Detention House in Seattle, Washington, a failure on his part to appear would be considered as notice that he had no further evidence to produce, and that the record would then be submitted to the Secretary of Commerce and Labor for his decision, a copy of which letter is hereto attached and made a part hereof.
"That on March 7, 1913, the said Roger Marchetti, informed the Inspector that he could not take the matter up that day, but would take it up the next morning without fail, and neither the next morning, nor at any other time, did the said Roger Marchetti appear in said proceeding, or produce or offer to produce any other or further evidence, nor did the said Marie, or Mary, Miler, at any time offer to produce or procure any other or further evidence, and that thereupon the record of said proceeding, together with the report of the examining Inspector, and with the report of Commissioner Ellis DeBruler, was forwarded to the Department of Labor at Washington, D.C., and recieved by it, and said Department did then and there carefully consider said matters, and on the 18th day of March, 1913, said Department, and also W.B. Wilson, Secretary of Labor, became and were satisifed that said alien was one who had been found practicing prostitution and was a prostitute after her entry to the United States, and decided adversely to said alien, and order her deported to the country from whence she came."
The answer and return further denies the jurisdiction of the court to review the acts of the Secretary of Commerce and Labor.
Petitioner replying admits the arrest, but denies
that she practiced prostitution. She alleges that it was not
until after her examination that she was informed of her right
to be represented by an attorney. Denies that the Immigration
officer gave notice of the proceedings to her attorney. Admits
that her attorney did not produce any evidence to controvert
the evidence produced against her. Alleges that she
has been ready and willing at all times to produce further
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evidence to controvert the evidence produced against her, but
has been prevented from so doing.
The cause is now submitted upon the pleadings.
C.F. Riddell, United States Attorney, and E.B. Brockway, Assistant United States Attorney.
For Immigration Commissioner, Respondent.
Elias A. Wright, for Petitioner.
The petitioner relies upon the following authorities:–
In re Morrow, 86 Fed., 117;
Lavin vs. LePevre, 125 Fed., 693;
Zakonaito vs. Wolf, 33 U.S. Sup.
Ct. R., 311;
DeBruler vs. Gallo, 184 Fed., 566;
Chin Yow vs. U.S., 208 U.S., B;
Respondent relies upon the following authorities;
in addition to certain authorities cited by petitioner:–
U.S. vs. Ju Toy, 198 U.S., 253;
49 Law Ed., 1040;
Bottlier v. Doneuguey, 130 U.S. 238;
CYC. vol. 23, pp. 939, et. seq.
Under Section 22 of the Act of Feburary 20, 1907, as amended March 26, 1910, the Commissioner-General of Immigration is required to make rules and regulations carrying out the provisions of the Act. Paragraph B. Subdivision 4 of Rule 22, so promulgated September 15, 1911, provides:–
"During the course of the hearing the alien shall be allowed
to inspect the warrant of arrest and all the evidence
on which it was issued; and at such state thereof as the officer
before whom the hearing is held shall deem proper, he
shall be aprised that he may thereafter be represented by
counsel and shall be required then and there to state whether
he desires counsel or waives the same and his reply shall be
entered on the record. If counsel be selected, he shall be
permitted to be present during the further conduct of the hearing,
to inspect and make a copy of the minutes of the hearing,
so far as it has proceeded, and to offer evidence to meet any
evidence theretofore or thereafter presented by the Government.
Objections and exceptions of counsel shall not be entered on
the record, but may be dealt with in an accompanying brief."
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It is not contended but that the evidence upon the hearing
was sufficient to justify the warrant of deportation; but it
is argued that, by being deprived of the benefit of counsel,
petitioner, in effect, had no hearing.
It is apparent from the petition, the return of the Commissioner and reply that petitioner was informed of her right to have counsel before the conclusion of her hearing: i.e., at the conclusion of the officer's examination, he informed her of her right to have an attorney, and held the hearing open for the purpose of receiving such testimony as she might offer. It may be that nothing further was actually heard, but the opportunity was afforded, and that is all the law requires. It is alleged in her petition that she "had retained counsel before hearing". Therefore, she could not have been prejudiced by any delay in the notice.
Enough is disclosed to show that petitioner had a fair, if summary, hearing. If petitioner's attorney failed to be present at any of her hearings, it is nothing that respondent is charged, or shown to have been responsible for, nor any one concerned in the proceedings for deportation. She has not been deprived of any right of appeal by the remissness of her attorney, as has been argued, for there is no appeal. The order of deportation was issued by the Secretary of Commerce and Labor.
The mere allegation in the reply that petitioner has been "prevented from producidng her evidence", is it means anything more than the failure of her attorney to serve her, is too meagre an allegation upon which to base a right, or excuse a default. It is a mere conclusion. Of the parties to the proceedings, petitioner, alone, is responsible for the neglect of her attorney. In any event, the action of the Secretary of Commerce and Labor in refusing to reopen the case on that account rests in his discretion and no such abuse of that discretion is shown as can be said to the oppressive or arcitrary.
The rule to show cause is discharged.
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2x
No. 2457.
In the District Court
of the United States
for the
Western District of Washington
Northern
Southern Division
In the Matter of the Application of Marie Miler for a Writ of Habeas Corpus.
Decision
Filed in the U.S. District Court, Western Dist. of Washington. May 14, 1913 Freank L. Crosby, Clerk, by EML Deputy
