UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON NORTHERN DIVISION
In the Matter of the Application of Tonka Bajlo for the Writ of Habeas Corpus )
2459 no. 1328 BRIEF SUBMITTED IN SUBSTITUTION OF ARGUMENT IN ANSWER TO WRIT
BRIEF SUBMITTED BY RELATOR IN REPLY TO ANSWER OF COMMISSIONER OF IMMIGRATION, ELLIS DeBRULER, and the SECRETARY OF THE DEPARTMENT OF LABOR in re DEPORTATION OF TONKA BAJLO.
Pursuant to agreement entered into between Mr. Brockway, Assistant United States District Attorney, and Chas. H.Ennis, attorney for Tonka Bajlo, and with the consent of Edward E.Cushman, Judge of the United States District Court for Western District of Washington, the following brief is submitted in substitution of oral argument:
STATEMENT OF CASE
Tonka Bajlo is a native and subject of Austria about 30 years of age, the wife of Jack Bajlo, who landed in this country at the port of New York on the S.S. "OCEANIC" on March 9, 1911, accompanied by her husband. She immediately after their arrival in company with her husband went to Pittsburg, Pennsylvania, where they resided for a period of one year living together as man and wife, and after she resided a year in Pittsburg living with her husband, then she came to the city of Seattle where she has lived during the past year.
The reason for her leaving her husband was because of his continuous, inhuman and bestial cruelties. Upon her arrival in Seattle she obtained employment as housekeeper and cook at 917 Addition Street for a man by the name of Paska Bilin, at which place were some five or six Austrians who were employed as laborers by the various contractors in the city of Seattle. She remained in the employ of Bilin for some 9 or 10 months, after which she obtained employment with Ivan Skorish and Paska Bilin, at 815 Charles Street, as cook and housekeeper, at which place she remained for about two months cooking for four Austrian laborers, when she was arrested on April 7, 1913, by Thomas M. Fisher, Inspector of Immigration, at the port of Seattle, upon a telegraphic warrant issued by Hon. W.B.Wilson, Secretary of Labor, upon the charge of being found an alien practising prostitution after entry in this country, and on said day a hearing was had by Thomas M.Fisher, Inspector of Immigration at the Detention Station of the port of Seattle.
At such hearing Tonka Bajlo was the first witness to be called, without the presence of an attorney. At the conclusion of her testimony on direct examination Inspector Fisher informed her in the following language of her right to have an attorney:
Q. "You have a right to be represented by counsel if you desire." A. "I have no money to hire an attorney."
Q. "Do you waive your right to be represented by counsel at this or any future hearing of the case?" A. "Yes."
At this hearing the testimony of Jack Bajlo, her husband, Ivan Skoric (or Skorich,) and Paska Bilin were taken, and the testimony of these witnesses is herewith submitted as part of the Government's case, and referred to by this relator as part of this reply brief to the answer of the Commissioner of Immigration, Ellis DeBruler, to the petition for a Writ of Habeas Corpus. Upon the testimony, statements and affidavits herewith submitted. Inspector Thomas M.Fisher made the finding that he had talked to her and that she told him she had been living with John or Joe Jurin as his wife since coming to Seattle, and that she had been intimate with a number of men in the house where she was living; that she was living in a house of the Austrian quarter, she being the only woman there and that there were from 4 to 5 to a dozen Austrians living there from time to time; that from the condition of her room he had no question in his own mind but that she was practicing prostitution, and that in view of these facts he finds that Tonka Bajlo is a citizen of Austria, and that she entered this country March 9, 1911, at the port of New York, and that she had been found practicing prostitution since her entry into the United States, and recommended that she be deported to the country from whence -2- she came.
On April 9, 1913, in a letter to the Commissioner General of Immigration, Ellis DeBruler, Commissioner of Immigration at the port of Seattle, upon the findings made by inspector Thomas M.Fisher, recommended the deportation of Tonka Bajlo in the following language to-wit:
"From the evidence adduced it appears that this woman was of the excluded classes at the time of entry, i.e. a person who admits having committed an offense involving moral turpitude, and a person likely to become a public charge, and she has been found practicing prostitution. I therefore recommend that she be found to be in the United States in violation of law, and ordered deported to the country from whence she came at the expense of the importing vessel, etc."
On April 7, 1913, a warrant was issued by the Secretary of Labor ordering the arrest of Tonka Bajlo, from which the following excerpts are quoted:
"Whereas, from evidence submitted to me it appears that the alien Tonka Bajlo who landed at the port of New York ex SS. "OCEANIC" on or about the 15th day of March, 1911, has been found in the United States in violation of the Act of Congress approved February 20, 1907, amended by the Act approved March 25, 1910, for the following among other reasons: That the said alien is a prostitute and has been found practicing prostitution subsequent to her entry into the United States.
I, W.B.Wilson, Secretary of Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to take into custody the said alien, and grant her a hearing to enable her to show cause why she should not be deported in conformity with the law. For so doing this shall be your sufficient warrant. W.B.Wilson, Secretary of Labor."
On April 15, 1913, the Secretary of Labor ordered the deportation of Tonka Bajlo to Austria, the country from whence she came, upon the finding made by Ellis DeBruler, Commissioner of Immigration at the port of Seattle, and Inspector Thomas M. Fisher, upon the testimony adduced at the hearing held by Thomas M.Fisher on April 7, 1913.
On April 16, 1913, an order to show cause why a Writ of Habeas Corpus should not be issued was signed by Hon. Edward E.Cushman, Judge of the United States District Court for the Western District of Washington, in response to the petition of relator, said order being returnable on April 21, 1914, and in -3- answer to said order, the commissioner of Immigration, Ellis DeBruler, through the United States District Attorney's Office filed the records in case in this court, and denied the jurisdiction of this honorable court to intervene, claiming that the action of the immigration officers upon its approval by the Secretary of Labor is final and not reviewable in a court of law.
The grounds upon which the relator seeks the issuance of the Writ of Habeas Corpus are:-
1. That she did not have a fair and legal hearing as prescribed by law, and that no sufficient opportunity was allowed to present counter-evidence to show cause why she should not be deported upon the warrant charging her with the offense of "being an alien practicing prostitution in this country after entry," in this, that she did not understand the proceedings which were conducted against her at the time of the hearing and that she was without the assistance of counsel, and when informed what the result of the hearing was, she demanded a rehearing and services of counsel, and the rehearing was denied.
2. That there was absolutely no evidence to support the charge made against her in the warrant of arrest issued by the Secretary of Labor.
3. That the statements alleged to have been made by her in the testimony as translated into English, are in some instances absolutely false and have been misinterpreted by the interpreter.
4. That the interpreter, who was hired especially for this hearing, refused and decline to translate the statements made by her in which she charged her husband as being irresponsible mentally and acting through malice.
5. That the affidavit made by Jack Bajlo, her husband, which is part of the Government's answer to the relator's petition for a Writ of Habeas Corpus, was made by said Baljo with the purpose in view of wreaking vengeance upon his wife, because she declined to live with him by reason of his extreme cruelty and inhuman treatment, and said Baljo has since the hearing admitted such to be the fact, as evidenced by affidavits marked Exhibits B and C.
-4-In connection with statement 5 we especially draw the attention of the court to the affidavits of Nick Radovich, and L. G. Rasho and marked Exhibits B. and C.
Previous to applying for an order to show cause why a Writ of Habeas Corpus should not be issued discharging Tonka Bajlo from the custody of the immigration officials, said Tonka Bajlo applied to Ellis DeBruler, Commissioner of Immigration at the port of Seattle, for a rehearing which was denied by Ellis DeBruler as Commissioner on the ground that she had been ordered deported by the Secretary of Labor upon the testimony submitted at the only hearing had and which is hereto referred to and made a part of the Government's answer to the return of this application for a Writ of Habeas Corpus, and in this connection we submit the affidavits of Ivan Scorich, Fany Madison, Frank Millowan and Jerry Bolancia, which affidavits were submitted to the Hon. Commissioner of Immigration at the port of Seattle in support of the application for a rehearing in this cause before the immigration officials. Said affidavits are marked Exhibits D., E., F., and G.
We desire especially to call the attention of the court to the affidavit of Tonka Bajlo and marked Exhibit A, which recites a tale of cruelties equal to any of those practiced in the Dark Ages, and her statements as to cruelties and as to her virtuous conduct are borne out by the affidavits of Nick Radovich, L.G. Rasho, Fany Madison, Jerry Bolancia and Frank Millwan.
-4-ARGUMENT
It will be admitted:
1st. That the United States Government acting through Congress, has the power to exclude all aliens.
2nd. That it has, in the same way, power to deport any alien found in this country.
3rd. That it has the power also to provide by law for the admission or deportation of any class or classes of aliens and prescribe the terms and conditions upon which they may be admitted, may remain, or be excluded or deported.
These rules are well established. On the other hand it is equally true and well established:-
1st. That such powers are vested exclusively in Congress.
That Congress can act in the matter only through laws duly enacted.
3rd. That in the absence of such laws all aliens can enter and remain here.
4th. No officer or tribunal can exclude or deport them except by virtue of such laws and in the manner prescribed by law.
It follows that an alien cannot be ordered deported by the immigration officers unless it appears that they are acting:-
a. Within the terms of the law.
b. In the manner prescribed by law.
If they undertake to do so a question of law is raised and the courts have jurisdiction to hear and determine the matter. The courts cannot review the findings and orders of the immigration officials when they act within the terms of the law and in the manner prescribed thereby, just because the court may have a different opinion as to the weight of the evidence.
But whether or not there is any law authorizing deportation in a specific case is for the courts to determine.
Whether or not the officials followed the law in the proceedings is for the court to determine. Whether or not the alien had such a fair hearing as the law accords her is for -5- the courts to determine. Whether or not there was any evidence to support the findings is for the court to determine.
The foregoing propositions are fully supported by the following authorities:-
Chin Yow vs. United States. 208 p.8.
Davis vs. Manolis. 179 Federal 818.
United States ex rel. Bosny et al. vs. Williams. 185 Federal, 598.
Ex parte Koerner. 176 Federal, 478.
United States ex rel Nicola vs. Williams, 173 Federal, 626.
Zakonaite vs. Wolf. 33 Supreme Court Reporter, Vol. 33, p. 31.
We submit that it is quite clear from this record that the petitioner did not have such a fair, legal hearing as the law contemplates in the following respects:-
1st. The warrant under which she was taken into custody charges her with one offense to-wit: that of practicing prostitution after entering the united States, while the evidence taken and the findings and order of deportation cover two other charges not included in the warrant.
2nd. That there was absolutely no evidence establishing or tending to establish the charge made in the warrant.
3rd. That the finding of the Inspector on the charge made in this warrant, (pp. 22 and 23), show, on its face that it was not based on evidence taken at the hearing, but upon alleged admissions which he claims to have obtained from her at the time of her arrest.
4th. That she is a woman with little education, not able to speak the language, and was not able under the circumstances to make a proper showing.
5th. That the record of the evidence as returned is incorrect, and misleading, in that she and other witnesses are reported to have made statements which in fact they did not make.
-6-6th. That even if the local officers had the right to take evidence and make findings upon charges not embodied in the warant, that evidence does not show that she was guilty before entering the country of an offense which brings her within the prohibited class, nor does it show that she is likely to become a public charge.
We do not here refer to the weight to be given the evidence but claim that even if true as a matter of law it does not show that she is within the prohibited class.
This is a patition for a Writ of Habeas Corpus, not a hearing under the writ, and consequently it does not devolve upon us at this time to show to the court that the alien has a right to remain in this country, but only to show that she has not had such a hearing to determine that question as under the law she is entitled to. If she has not had such a hearing then the Writ of Habeas Corpus must issue, and the court, upon the return of the writ, will examine into the question of her right to remain, and render judgement accordingly.
In other words an alien when arrested under a charge for deportation has the right, primarily, to a full and fair hearing by the tribunal prescribed by the statute, and in the manner therein provided. If it appears on hearing of the petition for the writ that no such hearing has been accorded him, then the writ will be issued, and the court upon the return of the writ will give him such hearing, and enter its decree.
In a recent case decided by the united States Supreme Court, 208 U.S. p. 8, this docrine was announced:
The law fixing the procedure under which the immigration officials must act under which they attempted to deport the petitioner is found in sections 20 and 21 of the Act of February 20th, 1907.
Federal Statutes Annotated, p. 103, Section 20, provides that "upon the warrant of the Secretary of Commerce and Labor the alien shall be taken into custody and deported, and further that such alien after being so taken into custody may give bonds -7- and be released upon condition that he will appear "for the hearing or hearings in regard to the charge upon which he has been taken into custody."
This section clearly contemplates that the hearing shall be had only upon the charge made in this warrant.
To take one into custody under a warrant charging a particular offense, then hold a trial set for hearing under that warrant, and at such trial take evidence, make findings and enter judgement on an entirely different charge is a procedure so repugnant to the American idea of justice and fair dealing, that we apprehend a court will not tolerate it, unless the statute so clearly permits it that no other construction of the statute is possible. Conceding for the purpose of the argument, that Congress might grant to immigration officials such a power over aliens, a statute should not be so construed if any other interpretation can be given it.
We submit that this statute shows on its face that the hearing must be confined to the charge made in the warrant.
It has been so construed by the courts:-
Davies vs. Manolis, 179 Federal 818 Supra.
U.S. vs. Sibray. 178 Fed. 145 Supra.
The local authorities have no power to arrest except upon such a warrant; they have no power to hold a trial except by virtue of such a warrant; they have no power to act at all except within the orders containted in the warrant.
The warrant in this case charged "that said alien is a prostitute and has been found practicing prostitution subsequent to her entry into the United States," and directs, "that you take into custody said alien and grant her a hearing to enable her to show cause why she should not be deported in conformity to law."
(P. 38 of Return to Order to Show Cause.)
The hearing was had, testimony taken, and the following findings made by the Immigrant Inspector:
-8-FINDINGS. pp. 22 and 23.
A At the time of the arrest of this woman I talked to her in the presence of Detective Majewski, who acted as interpreter; she at the time told me that she had been living with Joe or John Jurin as his wife since coming to Seattle, and that she had been intimate with a number of men in the house where she was living. She was living in a house in the Austrian quarter, she being the only woman in the house, and there being anywhere from four to five to a dozen men living there from time to time. From the condition of her room there is no question in my mind but what she was practicing prostitution, and in view of these facts I find that Tonka Bajlo is an alien, a citizen of Austria; that she entered the United States at the port of New York, on the S.S. "Oceanic", March 9, 1911; that she has been found practicing prostitution since her entry to the United States, and I, therefore, respectfully recommend that she be deported to the country from whence she came or of which she is a citizen or subject in conformity with law.
Ellis DeBruler, local commissioner, wrote to the Commissioner General of Immigration, (see letter p. 12 of return.)
"From the evidence adduced it appears that this woman was of the excluded class at the time of entry, i. e. a person who admits having committed an offense involving mortal turpitude, and a person likely to become a public charge, and she has been found practicing prostitution."
The finding and order of deportation (p. 5 of return) recites:-
"Hearing having been granted following named alien, Tonka Bajlo, alias Ivanica Bajlo, alien found practicing prostitution after entry, person likely to become public charge at time of entry, etc."
These findings, if the letter of DeBruler and the contents of the order can be called such, recite three distinct grounds for deportation:
1st. That she is likely to become a public charge.
2nd. That she is a person who admits having committed an offense involving moral turpitude before entering the country.
3rd. That she has practiced prostitution since entering the United States.
We have already pointed out that only the third ground was covered by the warrant, and have pointed out that under the statute and the authorities, all the proceedings except those based on the third ground were unwarranted. It follows that so far as the first and second findings are concerned the woman is clearly held without warrant of law and would have to be discharged.
-9-On the first two grounds therefore, there was not only no fair hearing such as is contemplated by law, but there was no legal hearing at all. The County Wreckmaster has just as much authority to make findings and order her deported on these grounds as did the persons making the order without a warrant. For the time being therefore, we will drop the first two grounds of deportation and confine ourselves to a discussion of the third, the only one contained in the warrant, to-wit; that the alien is a prostitute and has been found practicing prostitution since entering the United States.
The statute, Section 3 of the Act of February 20, 1907, as amended by the act of March 26, 1910, does not contain the words: "Any one who is a prostitute", but reads:"Any alien who shall be found * * * practicing prostitution after such alien shall have entered the United States, etc.", so we do not need to concern ourselves with the first expression, except as it may be included in the second. The word prostitution means common, indiscriminate, ilicit, and not sexual intercourse exclusively with one man.
Words and Phrases 5741 and cases cited.
"A prostitute is a female given to promiscuous sexual intercourse with men for gain."
Words and Phrases 5740 and cases cited. Anderson's Dictionary of Law. p. 839.
It has been held that both the warrant and the findings in order to support an order of deportation must charge and find the commission of a specific act or acts, showing that the party comes within the statute.
But we need not be so technical in this case. There is absolutely no evidence to show, or even tending to show, that this woman ever practiced prostitution in the United States. If there was no such evidence this court has jurisdiction to issue the writ and order her discharged.
Questions of fact are for the jury
alone, in jury alone in jury cases, but that question as
to whether there is any evidence to support a verdict is one of
law for the court to pass upon and is elementary and analogous to
-10-
to the proposition here made.
The Supreme Court of the United States in Zakowaite vs. Wolf, Vol 33, Supreme Court Reporter, page 31 Supra, uses this language:-
"As to the first point, an examination of the evidence upon which the order of deportation was based convinces us that it was adequate to support the Secretary's conclusions of fact. That being so and the appellant having had a fair hearing, the findings are not subject to review by the courts."
This case was decided by the Supreme Court of the United States in December 1912.
It was contended "that there was no evidence before the Secretary of Commerce & Labor sufficient to warrant the findings of fact upon which the order of deportation was based." The Supreme Court took jurisdiction of that question, examined the evidence and passed on its sufficiency.
We now invite your Honor's attention to the evidence in this case: Ask you to examine it as did the Supreme Court, and ask you to determine whether there was any evidence to support the findings and the charge made.
The woman charged with the offense was herself called as the first witness at the hearing. She positively and unqualifiedly denied that she had been practicing prostitution. Her denial shows also that she had not cohabited with any man, save her husband, since coming to the united States.
It is quite true that her testimony does show that she lived with a number of men in Seattle, but it conclusively appears from other language in her testimony that what she mean by living with them was that she lived in a house rented or controlled by them, and that she kept house and cooked for them and received therefore, her board, lodging and wages. That these statements are absolutely true is shown beyond doubt by the testimony of the other witnesses examined at the hearing, and by affidavits of neighbors and acquaintances, copies of which are attached to this brief.
The next witness called was Jack Bajlo, who is the husband of this witness. He beat and otherwise abused her to such an extent that she could not live with him. After she was forced to leave him on account of these abuses, he followed -11- her from Pittsburg to Seattle, and where she again refused through fear, notwithstanding his threats, to live with him. He was suspicious of her and jealous. All of this conclusively appears from his own testimony taken at the hearing and from that of his wife and other witnesses; also from the affidavits of NICK RADOVICH and L. G. RASHO. attached hereto. It was on the complaint and affidavit of this jealous, immoral and bestial husband, prompted by a spirit of revenge against her because she would not live with him and submit to his foul practices, that the warrant in this case was issued.
In paragraph "I" of Rule 35 promulgated by the Secretary of Commerce and Labor, which can be found on P. 147 of Volume 178 of Federal Reports, we find the following language:
"Officers are especially cautioned not to lend their aid in causing the arrest of aliens upon charges arising out of personal spite or enmity, unless the truth of such charges are clearly established."
Notwithstanding the vengeful spirit of this witness, and notwithstanding the fact that the examiner at the hearing evidently did all he could through leading and suggestive questions by a system of cross examination, he did not give one word of testimony which could possibly be said to support the charge made in the warrant, unless it be found in the following testimony.
Q. How long did your wife live with you in Pittsburg? A. One Year. Q. During that year what did she do? A. Kept boarders.
Q. Did she practice prostitution during that time. A. Some of the boarders told me that she did once, and I beat her for that.
And further relating to the time when she was in Seattle:
Q. Who was she living with when you came here first? A. Four men in the house.
Q. Did you know who they were? A. Only the one that -12- she lives with.
Q. Did you go to that house and see them. A. I went to the house and saw them, but spoke only to my wife.
Q. What did you say to her? A. I told her to come with me and that I would forgive her, and I told her that if I beat her any more she could have me arrested.
Q. Then what did she say. A. She said she would not trust me any more; she would not go with me.
Q. Did she say to you that you were no longer master of her body and that she would practice prostitution if she wished? A. She told me that day before yesterday. Mr Gorin was with me at that time.
Q. Did you know whether or not she was practicing prostitution in this city? A. When I first came here two men told me that she did so, but I do not know whether she did or not. I would not know these men by sight.
As to this testimony it is apparent that the statements made as to her practicing prostitution were the rankest kind of hearsay; that they were statements or conclusions made by third parties and not statements of any fact, and repeated at the hearing by this beast seeking revenge. Whether he or the persons whom he stated told him of these things know or knew what prostitution is, does not appear. The first statement: "Some of the boarders told me that she did once," even if it had been true and shown by competent witnesses in a proper way, would not establish any charge for which she could be deported, because a single act of sexual intercourse is not practicing prostitution and is not a ground for deportation. In this respect the second statement is but little better because he says: "When I first came here two men that she did so," is so very indefinite and uncertain, that aside from it being hearsay and a conclusion of third parties not present, that it can hardly be considered more than an intimation that she might have committed the act of sexual intercourse once, but when the witness says: "I would not know these men by sight," and "I do not know whether she did or not," the whole fabric must -13- fall to the ground as absolutely unworthy of consideration, or even of belief. Hearsay evidence is not evidence at all in the sense that it may be said to sustain any proposition, and in this respect a statement of mere conclusions recited by a third party is much worse. Of course, it is not necessary to argue the proposition that the affidavit upon which the warrant was issued is not evidence such as could be considered supporting the order of deportation. If it were, no hearing would be necessary.
For the same reason the recital in the findings made by Mr. Fisher, Inspector, that: "She at the time, (meaning when she was arrested) told me that she had been living with Joe or John Jurin as his wife since coming to Seattle, and that she had been intimate with a number of men in the house where she was living," cannot be considered as any testimony whatever to support the findings or the order of deportation. The further fact that such a recital is made in the findings and such statements as that of Jack Bajlo were allowed to be put in the evidence, particularly in view of the fact that the woman was not represented by counsel, and no cross examination was made except that of the prosecution cross examining its own witnesses apparently for the purpose of forcing out of them damaging statements, all show that the hearing and findings were unfair and not held according to law or the rules of the department.
It is true that this is not a criminal proceeding, but the offense charged is one in its nature criminal and the evidence of guilt certainly should be specific, competent, and of facts not mere conclusions.
In U.S. vs. Sibray, Vol. 178, p. 150, three hearings were held, one in the presence of the alien, and two not in her presence, and the court held that hearing in deportation -14- proceedings of which the alien had no notice and was given no opportunity to be present, at which witnesses were sworn and examined, were improper. How much more improper therefore, is it to take a statement found only in the findings and not brought out by examination of a sworn witness at any hearing at all.
On page 599, Volume 185, Federal Reporter U.S. vs. Williams, the court uses this language:-
"Aliens if arrested, are at least entitled to the rights which such a system accords them, and if they are deprived of any such right the proceedings is clearly irregular, and any order of deportation issued in it, invalid."
Ignorance and inability to speak the language will not of course in themselves be sufficient to entitle an alien to appeal to the courts where the proceedings appear otherwise to have been irregular and unfair, but when it comes to the question of considering whether or not a hearing was fair, these elements must be taken into consideration, for what would be a fair hearing for a lawyer, for example, posted on the subject of the hearing, would not in any sense be a fair hearing for one who was ignorant of the laws and customs of the country, and particularly when the language in which the proceedings are held is not understood by the accused. Whether the woman fully understood the charge against her, and knowing that she was not guilty stated that she did not want counsel, and also had no money to pay for one, does not appear affirmatively on the record, but if she had understood the proceedings she certainly would have had a right to expect help of counsel when called upon to defend herself against the charge made in the warrant. She was not apprised of any other charge or charges, and even if the officers had had the right to go beyond the authority given them by the warrant of arrest, it -15- is apparent that she had absolutely no opportunity to procure proper counsel, or obtain witnesses, or make any kind of a defense to such charge.
It does not appear that the testimony of any of the
witnesses was read over to them, or signed by them after being
translated by the interpreter and transcribed by the reporter.
We know of no relief
rule or law requiring this; neither do we know
of any rule or any law making such testimony as reported, conclusive
as to its correctness. An incorrect record of testimony
upon which findings and an order of deportation are based certainly
would be unfair, unjust and misleading. The testimony as
reported in this case is erroneous in several very material
respects. Furthermore, a portion of the statements made by the
accused at the time of the hearing under oath were not translated
at all and not made a part of the record.
See affidavit of Tonka Bajlo, marked Exhibit A., and attached hereto.
The finding and order of deportation on the first two charges to-wit: That she is a person likely to become a public charge, and a person who admits having committed an offense involving moral turpitude before entering the country, was not justified or supported by any evidence. We have already shown that she had no legal hearing whatever on either of these charges because they were not included in the warrant, and that if there could have been a hearing on them without the warrant making the charges that such hearing was unfair and not such as contemplated by law, because she was not apprised either before at the time of the hearing that she was to be tried on any such charges, and that she therefore had no opportunity to make any defense thereto.
-16-We now propose to show that if she had had such hearing as the law contemplates, that there was no evidence to support either charge.
On the proposition that she was likely to become a public charge we can find no evidence whatever. The testimony all goes to show that she was perfectly capable of supporting and taking care of herself, and that as a matter of fact she did do so. Her husband testified that after being admitted at the port of New York they went to Pittsburg and lived for one year; that during that time he was a cast iron chipper; that his wife during that year kept boarders. Her own testimony and that of all the other witnesses show that as soon as she came to Seattle she obtained employment as housekeeper and cook for a number of people of her own nationality, and she was still engaged in that occupation when arrested. There is no where a single word of testimony that she was incapable of earning her own living in a perfectly legitimate and proper way, and the evidence shows that she actually did so.
We need not argue to this court that for a woman in her class of life to keep house in the manner she is shown to have done is a legitimate and proper occupation and a very common thing, and does not in any way reflect upon her character.
On the other hand it is commendable, for we have invited, in the interests of the growth of our industries and development of our country, the immigration of just such people as these workmen are, and it is necessary that they should have some one to cook for them and look after their household affairs.
There is a doctor's certificate attached to the testimony, (p. 25), showing that she has inflammation of the pelvic organs, and that in the majority of cases the disease is the result of gonorrhea. The certificate also states that she is in no -17- danger and does not require special care and attention, and that it may have existed for a year or more. As a matter of fact this condition had existed for that length of time, yet as the evidence shows it did not prevent her from keeping boarders in Pittsburg, or from keeping house and cooking and earning her own living in Seattle. Furthermore, it is a fact which appears from her affidavit attached hereto, that the condition resulted from a disease communicated to her by this beautiful husband of hers, who is now trying to have her deported.
The second charge that of committing an offense involving
moral turpitude is evidently based an attempt to show that
she was a person within the meaning of the statute which specifies
what persons are within the excluded class. This portion of the statute
applicable reads:
"Persons who have been convicted of, or admit having committed a felony or other crime or other misdemeanor involving moral turpitude."
We concede that the evidence shows that she gave birth to a child after her marriage and at a time when her husband had been in America for a period of nearly three years. We have already shown that the record which seems to indicate that she gave birth to a child before her marriage is incorrect; that she did not so testify, and that her husband's testimony as given corroborates this statement, for he did not so testify. The bare statement of the fact that she gave birth to such a child is the only evidence on the subject. It does not appear whether or not during her husband's absence she had been legally separated from him and married to another man, or whether or not the birth of the child was the result of rape or some unlawful act committed without her consent. It appears as a necessary conclusion that she had sexual intercourse, but whether with more than one person, or on more than one occasion does not appear, nor can -18- any evidence upon that subject be drawn from the testimony. Clearly this child may have been legitimate, or may have been conceived without any moral or legal offense having been committed upon her part. Furthermore, it is not made to appear that any act constituting an offense against the laws of Austria, or against the laws of the United States as a nation, such as would be covered by the language of the statute, was committed. It must be shown that the act committed was a crime or a misdemeanor under the laws of Austria for which she might have been punished, and that the act involved moral turpitude.
In U.S. vs. Sibray, 178 Federal, p. 149, we find this language:
"The relator is married and lived with his wife in Vienna until he left for the United States. He did admit to commission of one act of sexual intercourse with an unmarried woman shortly before leaving Vienna. That is all the record discloses as to his conduct prior to his landing at New York. That act is to be depricated. Yet it was not a felony or crime under the law. It is doubtful if adultery was an offense at common law in this country. It was not in Vermont, Virginia and South Carolina. (See Wharton's American Criminal Law, Sec. 2648.) It is doubtful if the act of relator was adultery in Austria under the Roman law to constitute the offense, the woman must be married. The same is the law in many places. It is doubtful also if fornication was a misdemeanor at common law. The better opinion is in the absense of statute, unless the offense partakes of the nature of public, and offensive lewdness, it is not inditable. (See Wharton's American Criminal Law, 2667; also Clark's Criminal Law, Hornbook Series, 312, and authorities cited in footnotes.)
From the opinion of Judge Gibson of Pennsylvania in Maurer vs. Mitchell 9 Watts & S. 69, it will be seen that the offense of fornication and bastardy was "little more than a private wrong." See also Rohrheimer vs. Winters, 126 Pa. 253 17 At. 606. The Judge in that case added:-
That deportation should be the punishment of such a man for such an offense is almost incredible."
In this connection we might also add that the husband knew of the birth of this child prior to the time of bringing his wife to America. From this it must be assumed either that this child was conceived without fault upon the woman's part, or that the husband fully forgave her and condoned the offense.
-19-Under such circumstances we believe we are safe in stating that no man or woman has ever been punished in any state in the union. It is universally considered a private wrong.
It appears from the evidence and from affidavits attached hereto, that the child was born some two years or more after the husband left Austria; that he returned to Austria after being in this country about three years; that he knew all about the birth of said child; that he remained in Austria about three years and then brought her to this country as his wife. This beyond question would evidently be a full forgiveness of the offense, if it appeared, (as it does not), that she had committed one.
Respectfully Submitted,
Chas H Ennis Fenley Bryan Attorneys for Tonka Bajlo. -20-
