Mari Miller v. United States of America. Respondent Attorney's Brief

 

United States District Court Western District of Washington Northern Division

In the Matter of The Application of Marie Miler for a Writ of Habeas Corpus. } No. 2457 Brief.

The first question to be determined is the legal right of an alien in regard to deportation. Under the 5th amendment to the Constitution, an alien, being a "person" shall not be "deprived of life, liberty or property without due process of law". The Act of February 20, 1907; Sections 20 and 21, as amended by the Act of March 26, 1910, provides in effect that an alien may be deported when the Commissioner of Commerce and Labor (now the Commissioner of Labor) is satisfied that the alien has been practicing prostitution. Section 22 provides for the enforcement and the promulgation of rules not inconsistent with the law, which should be laid down by the Commissioner-General of Immigration. The rules as shown by the amended return provide:

"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 stage thereof as the officer before whom the hearing is held shall deem proper, he shall be apprised 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."

It is well settled that a summary hearing, instituted under this law, constitutes as to the alien, due process of law guaranteed by the Court.

DeBruller v. Gallo, 184 Fed. 566, and cases there cited; United States v. Ju Toy, 198 U.S. 253, 49 L. Ed. 1040; Chin You v. United States, 208 U.S. 8, 52 L. Ed. 369; Bottlier v. Donseuguey, 130 U.S. 238, and numerous subsequent decisions.

We do not understand petitioner to very seriously question these doctrines, though on page 6 of its brief an attempt is made to draw an impossible distinction between the determination on the evidence as to whether the petitioner did belong to the deportable class of aliens (a determination which it is admitted this court cannot review on habeas corpus), and the regularity of the subsequent deportation based on such evidence. The remarks of the court in Zakonaito v. Wolf, 226 U.S. Sup. Ct. Rep., 272, of course had reference to a case where if all the evidence were true it would not be "adequate and sufficient" to warrant deportation; in other words, where a demurrer to evidence would have been sustained in a civil action, and where the "satisfaction" of the Secretary was not a true exercise of discretion at all, but entirely unwarranted by any evidence before him. Where there is any evidence whatever of the liability to deportation the action of the Department is not reviewable by the court by habeas corpus or in any other manner.

DeBruller v. Gallo, 184 Fed. 566, and cases there cited; United States v. Ju Toy, 198 U.S. 253, 49 L. Ed. 1040; Chin You v. United States, 208 U.S. 8, 52 L. Ed. 369; Bottlier v. Donseuguey, 130 U.S. 238, and numerous subsequent decisions.

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That this is a case where there is evidence, which if true, justifies the action of the Department, cannot be denied. The returns on file show this unqualifiedly, and defendants do not deny it, but only say that such evidence is false. Under the authorities cited this matter of the truth or falsity of the evidence is not a matter for the determination of this court.

As to the statements in petitioner's brief touching the right of appeal, it is enough to say that the cases relied on were decided under statutes where the decision in the first instance was made by an examining officer, and then, if asked, an appeal was granted to a superior officer. The statute under which this alien is being deported provides for deportation only on the order of the Secretary in the first instance, and hence no appeal is required or mentioned. The Commissioner here merely recommends, as was done in this case. The Secretary of Labor is the one who must be "satisfied", and has been so "satisfied" as shown by the return in this case. Hence there is no further appeal, for the highest officer has already decided the matter.

Petitioner's main plea however is that she was not granted a fair trial by the Department and this involves a close examination of the petition, return and reply. Disregarding the conclusions of law in the pleadings and confining attention, as we must to the specific allegations of the pettioner's return and rely so to just exactly what did occur at the trial, we find that the only real complaint is this, to-wit: that after petitioner had selected and employed an attorney he entirely failed to -3-   to produce evidence in her behalf, which she now says she has. We have already noted the requirements of the rules of the Department in regard to attorneys. The return shows that this rule was scrupulously followed. Before final hearing and long before the sending in of the report to the Secretary of Labor, the petitioner was notified as to her rights, she acted on them, and thereafter every opportunity was given the petitioner's attorney to put in any evidence which he might wish and to examine the prior proceedings.

Taking all the allegations of the petition and reply to be true in so far as they differ in material respect from the showing made by the return, we would find the following to be the facts: that prior to the hearing petitioner has retained counsel (Pet. Par. 4) though she was not informed of her right thereto until after the hearing (Reply Par. 2). We think that this allegation as to the time of her being advised as to her right to counsel, is explained by the fact appearing by the return (Report page 26) that this notification, was given at the close of the first hearing, but long before the final close of the matter and in ample time to enable the petitioner or her attorney to introduce any evidence they might have. And in this connection it should be noted that the rules are satisfied if at some stage of the proceedings, the alien is informed of this right, the exact time being left to the officer before whom the hearing is held, and if thereafter opportunity is given such attorney to be present and introduce his evidence on behalf of the alien. Obviously neither the rule nor the procedure in this case was in any manner unfair, or in any such sense as to prevent the -4-   proceeding from constituting fair play or a fair proceeding.

Petitioner further denies that the immigration officers made the specific efforts set forth in the return to get said petitioner's attorney to be present and protect her interest. But they no where allege that the officers of the Government in any manner either by action or omission to act, prevented her attorney from presenting her evidence, or took any unfair advantage to prevent said attorney from so representing her. Even if such allegation of the return were true, and the officers did not make the active efforts they allege to get Marchetti to act, no blame can be attached to them. If, in truth they did take the steps they allege they went far beyond any duty they owed to the alien, and teated her with marked generosity. But nowhere is there any allegation that they acted in any unfair manner in going ahead and sending in their report many days after his appointment. Especially would this be true where, as petitoner herself admits he did not appear or make any effort to produce any other or futher evidence. The very general allegation that petitioner was ready and willing to procure futher evidence but was "prevented" from so doing, without showing how or by whom or when or in what manner she was so prevented, or when or in what manner or to whom she made any offer to produce any such evidence, does not even raise a question of fact as opposed to the clear and specifics showing of the return with its detailed report of just exactly what did occur.

The gist of the proceeding as shown by the petition, the return, the reply and petitioner's brief, all taken together is simply this — Marie Miler being a prostitute -5-   and an alien and hence subject to deportation by her own admission (see Report attached to return Page 40, claims that her husband and certain others are worse than she is, that they are seeking to deprive her of her property, and that her attorney failed to properly present to the Department her side of the case. There is nothing in all of this to show any unfair or arbitrary or despotic procedure or departure from due process of law by the department. It is the old bitter cry of the defeated litigant, "The court was unfair and my attorney sold me out". But if there is anything settled in the law, it is that the litigant even in a court bound by the strictest rules of law, cannot allege any error on account of his attorney's neglect of duty. Having selected this attorney he must stand or fall by his conduct. Had this neglect of her attorney, which she seeks to make the basis of a charge against the fairness of the Department, occured even in the strictest court of law, default would have followed and no error could have been predicted on such ruling.

Cyc Volume 23 - Judgments - page 939 et seq. and cloud of cases there cited.

How much less will such circumstances fail of showing an unfair, arbitrary or despotic procedure by the Department which will prevent its ruling on the case from constituting the "due process of law" on which the alien must rely.

There therefore conclude:

I.

A deportation under order of the Secretary of Labor, -6-   after he has become "satisfied" as to the facts, by a summary hearing held under the rules established by the Commissioner-General of Immigration, and shown in the amended return, constitutes "due process of law", and does not justify the interference of a court by habeas corpus."

DeBruller v. Gallo, 184 Fed. 566, and cases there cited; United States v. Ju Toy, 198 U.S. 253, 49 L. Ed. 1040; Chin You v. United States, 208 U.S. 8, 52 L. Ed. 369; Bottlier v. Donseuguey, 130 U.S. 238, and numerous subsequent decisions.

II.

Where, as in this case, there is evidence which if true, justifies a finding of facts authorizing deportation, the court does not have authority to in any manner review such evidence. The evidence on which the order of deportation is based, could only be reexamined by this court (and then the authority of the court would be doubtful), where the facts which it tends to establish would not justify deportation. It is not even claimed that this is such a case.

DeBruller v. Gallo, 184 Fed. 566, and cases there cited; United States v. Ju Toy, 198 U.S. 253, 49 L. Ed. 1040; Chin You v. United States, 208 U.S. 8, 52 L. Ed. 369; Bottlier v. Donseuguey, 130 U.S. 238, and numerous subsequent decisions.

III.

The report of the proceedings shown in the return shows on its face an absolutely fair hearing, in accordance with the law and the rules of the Department.

Disregarding, as must be done, conclusions of law as to the regularity and fairness of the proceedings, and considering only the specific allegations of the petition and reply, such return and report are uncontradicted, except in the one particular; as to the specific steps -7-   taken by the Department to induce petitioners attorney to introduce any evidence he might have, and as to this matter, there is nowhere any allegation of any unfair practice by the Department or its officers, against either the petitioner or her attorney, but only that the attorney failed in his duty. This, even if true, does not constitute the unfair arbitrary or despotic conduct of the summary investigation, which will justify the review of the Secretary's descretion by the courts.

DeBruller v. Gallo, 184 Fed. 566, and cases there cited; United States v. Ju Toy, 198 U.S. 253, 49 L. Ed. 1040; Chin You v. United States, 208 U.S. 8, 52 L. Ed. 369; Bottlier v. Donseuguey, 130 U.S. 238, and numerous subsequent decisions.

We therefore respectfully contend that the writ should not issue

Respectufully submitted

C. F. Riddell
United States Attorney. E.B. Brockway
Assistant United States Attorney.

In connection with the cases above cited in this brief we would call His Honor's attention to Zakonaite v. Wolf, U.S. Sup. Ct. Reports, 226, page 272, a case decided under this same statute and reaffirming the doctrine announced in the earlier cases.

 

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No. 2457

In the District Court of the United States for the Western District of Washington

In the Matter of The Application of Marie Miler For a Writ of Habeas Corpus

Reply Brief

Filed in the U.S. District Court, Western Dist. of Washington
May 8 1913
Frank L. Crosby, Clerk.
By EML Deputy