Mari Miller v. United States of America. Petitioner's Brief

 

In the District Court of the United States, in and for the Western District of Washington, Northern Division.

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

Petitioner's Brief.

The petitioner in this case, Marie Miler, was on or about the 7th day of January, 1913, arrested under and by virtue of a warrant issued by the Secretary of Commerce and Labor on ground that she was a member of one of the classes of aliens required to be deported under the laws of the United States, to-wit: That the alien was connected with a house of prostitution and practiced prostitiution and derived benefits therefrom after she had entered the United States, such conduct being in violence of the Act of Congress of Feburary 20th, '07, and amended by the Act approved March 26th, 1910. That thereafter said Marie Miler, on or about January 13th, was given a purported hearing before Thomas M. Fisher, Inspector of Immigration, stationed at Seattle, Washington. That at said hearing the said Marie Miler was not represented by counsel, although she had employed one Roger Marchetti to represent her at that hearing, and also had paid him a reasonable fee for his services in that matter, and relying upon his assurance she presumed that all the proceedings in reference to her examination were regular and that her rights would be protected by the said Roger Marchetti.

It appears from the return of the Honorable Ellis DeBruller, respondent in this action, that the said Roger Marchetti did not at said hearing on January 13th, 1913, or at any other hearing or hearings subsquent thereto appear in behalf of the said Marie Miler, nor inform her of the fact that he would not appear, notwithstanding she had paid the said Roger Marchetti a reasonable fee for his services and had relied upon him to   defend her in said deportation proceeding.

By reason of the foregoing this Honorable Court can readily see that it was utterly impossible for the said Marie Miler to controvert any of the evidence produced by the Immmigration officers, upon which they based their findings, as a ground for ordering her deportation to Austria.

Marie Miler insists, as alleged in her petition, that the affidavit of Angelo Bassani, I. G. Polet and Vincent Patrosini are absolutely false in every particular, and that if she had had an opportunity of producing evidence to controvert the said affidavits, it would have been possible for her to establish the falsity of each of the said affidavits in their entirety, but owing to the fact that the said Roger Marchetti failed to properly conduct her defense in this case, as aforesaid, it was impossible for her in said proceeding before Immigration officers to do so.

It appears from the record that the Immigration officers did notify Roger Marchetti of the hearing and the record also discloses his assurances and attitude in reference thereto, but the record does not show that his failure to appear and his promises in reference thereto were ever communicated to Marie Miler, and as a matter of fact they never were, and for that reason the Immigration officers were at fault and mislead the said Marie Miler in reference to her rights. The least that they could have done would have been to notify her that her attorney was not exerting himself in her behalf so that she might have been enabled to have procured other counsel and thus establish the falsity of the purported affidavits as above stated, and also introduced evidence which would have proven her innocence beyond question.

It was not until the 13th of April, 1913, that the said Marie Miler was informed of the exact status of the proceedings against her and until after she had employed additional counsel to sue out the writ of Habeas Corpus in this section, and -2-   at which time the order of deportation had already been issued with directions to the respondent in this case to send her to Ellis Island, New York, there to await her deportation to Austria.

The Court can readily see that owing to this fact it was impossible for the petitioner, Marie Miler, to make application to the Secretary of Commerce and Labor to permit her to submit additional evidence or permit her to appeal from the decision of the respondent in this case to his superior, as, in the meantime, she would have already been sent on her way to Ellis Island.

On the question of the inability or the prevention of the alien immigrant from appealing the case, In re Morrow, 86 Federal, 117, and also the cause of Lavin vs. LaFevre, 125 Federal, 693, are in point. From a careful reading of these cases it would appear that the statutes regarding immigration and deportation evidently contemplates that the alien immigrant shall have at least an opportunity to appeal from the subordinate officers to the Secretary of the proper department, and where she is prevented from presenting her case to that tribunal of review it does not seem to be within the intent of Congress that the decision of the subordinate officers shall be final.

In regard to Agelo Bassani's affidavit, and in fact the affidavits of all the Italians, Polet, and Petrosini, we think it no more than a fair statement that this Honorable Court should carefully consider their contents. The affects of these affidavits are unqualifedly denied by Marie Miler throughout her entire testimony before the Inspectors, and without the assistance and advice of counsel it would seem that the story, as told by Marie Miler and also her husband on their examination, was entirely trustworthy and entitled to a great deal of weight.

The attention of this Court is especially called to the affidavit of Angelo Bassani wherein he states that is was -3-   not until in May, 1912, that he first met Marie Miler, record page 32. It appears from the testimony of Marie Miler herself that affiant had met the said Marie Miler and her husband in Butte Montana, several month previous and had advised them at that time to come to Seattle, but that they had disregarded his advice and had gone to the State of California instead.

Strenous effort was made on the part of the Inspector of Immigration at the hearing to establish the fact that Marie Miler had conducted herself in an improper manner in the State of California and also in Butte, Montana, prior to her arrival in the State of Washington, but upon the testimony of the alien herself it appears that she was wholly unable so to do. In fact, from communications which the Department received from California, as appears on pages 17–18 of respondent's return to this writ, that both Mr. Miler and this petitioner were conducting themselves in a very orderly manner, Mr. Miler being employed in a mine at Jackson, California, while this petitioner was engaged in washing for the men employed in the mine. Mr. William H. Chadney, Immigration Inspector at San Francisco, California, as appears from his letter, pages 17–18 Respondent's return, made very careful inquiry in regard to Marie Miler's conduct while in that State and informed the officers in charge here that after careful inquiry he was assured that this alien had conducted herself in a proper and orderly manner while within that State.

The court will observe throughout all of the testimony introduced by the Government to establish a case against Marie Miler, that not one of the witnesses identified the Petitioner only by the means of a photograph. This is just for the purpose of calling the Courts attention to the question of the suffeciency of the identity of the Petitioner in this case.

No. 4  

One of the Italians, I.G. Polet, who made an affidavit against the Petitioner, stated that he had onlymet Marie Miler once, and from his affidavit, (page 33, rec.) the Court can readily see the circumstances under which that meeting took place, and can, for itself judge as to whether it would be possible for anyone under similar circumstances to identify a person soley from a photograph picture shown to them some three months later. The same question may be raised in regard to each and every one of the affidavits introduced against the Petitioner. The foregoing, we think, contains a fair statement of the facts of this case.

To anticipate the chief question which will be raised by the Hon. Ellis DeBruller in this case will be that this Court has no jurisdiction to question the findings of the Secretary of Commerce and Labor entered herein, and that the findings of such Secretary is conclusive upon this hornorable Court, but so far as we have been able to determine, a writ of habeas corpus has never been refused to a petitioner when it appeared that the Secretary's of Commerce and Labor findings and order abased thereon were made upon evidence which was not aquadate to support the Secretary's conclusion, and that the alien, owing to that fact, was not given a fair hearing. In the late case of Zakonaito Vs. Wolf, 33, U.S. Supreme Court Reporter, 311 the last decision of the U.S. Supreme Court in reference to the deportation of aliens for the same reason that the Petitioner in this case has been ordered deported, we find the following statement: "The findings of the Secretaries of Commerce and Labor for the deportation of an alien are not subject to review by the Court, if the evidence was aquedate and sufficent to support the Secretary's conclusion, and that alien was given a fair hearing."   From the foregoing statement, it would seem that the aquedacy and suffeciency of the evidence to support the Secretary's conclusion as to whether the alien was given a fair hearing, was considered a judicial question, and would be inquired into by writ of habeas corpus, as was done in the above cited case.

It was announced in the case of Lavin Vs. Le Fevre, 125 Federal, -693 that the question as to whether the executive officers of the Government in deporting an alien immigrant are proceeding according to law, is a judicial question which might be inquired into under habeas corpus proceedings. We fully realize that the sufficency and aquedacy of the evidence in this case might be well considered to be one of fact, but the regularity of the Secretary's of Commerce and Labor action in ordering Petitioner deported upon this evidence is one of law, and can be inquired into by this Court under habeas corpus.

The question as to whether the alien has been given a fair hearing is reviewable by the courts as announced in the case from this judisdiction DeBruler Vs Gallo, 184 Federal, 566. With all due respect to the Inspectors of Immigration who conducted the hearing of the Petitioner in this case, we think it is not more than fair to state that from the record as produced herein, that this Petitioner has not been given a fair hearing, is that she has not, at any time, been able to introduce any evidence to contradict the perjured affidavits of the four Italians herein on file, and so, as she alleged in her petition, and for the writ of habeas corpus that a conspiracy to get rid of her and acquire her property existed on the part of her own countrymen who made the affidavits against her.

No. 6  

We think that if this honorable Court assumes jurisdiction in this matter, and permits the Petioner to establish the real facts in regard to the matter, that it will not be the Petitioner whom the Immigration Officers would be asking to deport, but that they will order a wholesale deportation of the real parties who are actually engaged in the business which the Petitioner is charge to be engaged in. The Petitioner desires to call the Courts attention to the case of Chin Lou Vs. 208 U.S. Page 8 on the question of when a court will assume jurisdiction in habeas corpus proceedings. We fully realize that this is a case which, of course, involves the Chinese Exclusion Act, but yet, what was said by the Supreme Court of the U.S. in that case is strictly applicable to this case on the question as to when a court would, and should assume jurisdiction, and determine as to whether or not petitioners had had a fair opportunity to produce the evidence they desired. We find this suggestion made by the Court in this case, "if the Petitioner was not granted a fair opportunity to produce their evidence, or a fair though summary hearing, the case can proceed no futher." Those facts were the foundation of the jurisdiction of the District Court, and we will admit, for the sake of argument, that so far as we have been able to determine, such seems to be the law in deportation cases, but we respectfully submit that this court will be justified in finding that this Petitioner has not had a fair opportunity to produce the evidence that she desired, not wholly, perhaps, due to any fault of the Commissioner of Immigration Inspector until after the order of deportation has issued from the Secretary of Commerce and Labor. That her attorney, Roger Marchetti, has failed to produce the evidence which Petitioner has been ready and willing to produce at all times.

No. 7  

In the Chin Lou case above, we also find the following statement: "the decision of the department is final", but that is based wholly on the pre-supposition that the decision was after a hearing in good faith, although summarily informed." The Court recognizes throughout the entire decision that in order to preserve the rights of a citizen, or one who is a bona fide resident of this country, although an alien, that something must be done, and that, in such a case, this something must be done by the courts, and it naturally devolves upon them to intervene, as they did in that case.

If, on the hearing for the application for the writ Marie Miler is unable to satisfy this court that she is not entitled to remain in this country, and that the evidence which she alleges to be false, and in aid of the conspiracy to get rid of her to acquire her property, then of course we would have no reasonable ground for complaint. But, under the present status of the case, it would seem that she has been denied the right and opportunity of protecting her property and personal rights in this proceeding, and we respectfully submit that after this court has carefully considered the Petitioner's application herein, and considered the suffeciency of evidence and the surrounding circumstances, then in all fairness to the Petitioner herein, although an alien, that this honorable court will be justified in finding that she is entitled to be released, on her application herein.

Respectfully submitted,
Elias A. Wright
Sam A. Wright
attys for petitioner No. 8.  

2x

No. 2457

In the District Court of the United States For the Western District of Washington Northern Division

In Re Marie Miler Habeas Corpus

Brief

Filed in the U.S. District Court Western Dist. of Washington May 3 1913 Frank L. Crosby. Clerk. By EML Deputy.

Elias A. Wright
Sam A. Wright
Attorney for Marie Miler

629-31 Burke Building Seattle

Service of within Brief and receipt of copy admitted this 3rd Day of May 1913

EB Brockway
Attorney for [blank]

We hereby designate Room No. [blank] Building [blank] Street [blank], Washington as the place where all subsequent papers herein, expect writs and process may be made upon the [blank] herein, and consent that service of all subsequent papers herein, expect writs and process, may be made as the place hereinabove, designated upon the said [blank] Dated [blank] 191[blank] attorney