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.
No. 2459
BRIEF OF GOVERNMENT.
If the Court has not already, either in connection with this case, or the accompanying habeas corpus case of Marie Miler, examined the following statutes and cases, we respectfully ask that he glance through them, where he will find the legal principles governing this case more clearly stated than I could hope to do.
Act of February 20, 1907, as amended by Act of March 26, 1910, Sections 20, 21 and 22; 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; Zakonaite v. Wolf, 226 U. S. Sup. Ct. Rep., 272.
The record in this case under the principles there laid down presents the following questions for determination by the court:
I.
Was there anything "unfair", arbitrary or despotic in the executive proceedings under which the alien has been ordered deported? The only matters in which it is claimed that there was any unfairness are the following:
(a) The warrant of arrest gave prostitution as the ground for deportation, while the findings of the officer gave in addition the commission prior to immigration of an offense involving moral turpitude, and liability at time of entry to become a public charge; and the finding fo the Secretary of Commerce, included in the warrant of deportation, is based upon prostitution and liability at time of entry to become a public charge.
(b) The findings of the local officer to the Secretary, included in the report on which the Secretary acted, stated a material conversation with the alien in which she admitted illicit relations with other men and also his judgment that she was a prostitute, based in part on his observation of the condition of her room.
(c) Errors in translation of the evidence embodied in the return on which the Commissioner of Labor acted.
II.
Was there any evidence on which the findings of the Commissioner could be based, or were they clearly without foundation, arbitrary and despotic?
The vice of petitioner's whole brief is an assumption that the proceedings are a trial on a criminal charge or analagous thereto, and that similar rules will prevail. The requirement of the law is merely this — that the Commissioner shall be "satisfied" that the alien is subject to deportation. No manner in which he shall so satisfy himself is laid down. If, as in this case, by his decision he announces that he is satisfied, that ends the matter unless it clearly appears that his alleged "satisfaction" is an unfair, arbitrary and despotic thing, arrived at without giving the alien any fair opportunity to show the facts.
See statutes and cases cited at beginning of brief.
-2-I. (a)
Applying these principles to the alleged unfair procedure in failing to include in the warrant the commission of crime before entry and liability to become a public charge at that time, we see at once that unless it appears that the alien was unfairly deprived of some opportunity by this fact, no review will lie. This is not a case of indictment where every thing must be pleaded. It is not even like a civil case at law, though there a pleading will in this state be considered as amended to correspond with the facts. It is a summary proceeding and unless essentially unfair methods have been adopted, the writ will not lie. Obviously there is nothing essentially unfair in deporting an alien for matters brought out at the hearing at which she was present, and where she was given an opportunity to have counsel and present any and all matters she might have, even though such matters were not known to the officers when the investigation started and hence were not included in the formal warrant for her arrest. The technical rules of criminal pleading cannot be injected into this procedure.
For a further reason petitioner's objection in this respect must fail. The order of deportation and the warrant of Commissioner on which he expresses his satisfaction recited that the alien is one found practicing prostitution, sufficient in itself to justify deportation, and the very ground stated in the original warrant (page 5 of Record included in return). Therefore, even though the Secretary had no authority to consider anything else, yet the fact that he did so, would be immaterial, since his action within the limits of his admitted authority justifies the holding of the alien and her deportation.
-3-I. (b)
Was it proper for the inspector to include as a part of his return to the Secretary of Labor, his personal observation and conversation with the alien? Most certainly it was. He would have been derelict in his duty had he not done so. And it was proper for the Secretary to consider such matter in reaching his conclusion. The alien had a full opportunity to explain her relations with the men in the house and the circumstances surrounding her residence there. The matters referred to in the inspector's report were fully gone into at the hearing, and she denied that there was anything immoral in relation thereto. Nevertheless it was eminently fair and proper that the inspector state his ideas in which he had gained from personal conversation and observation. Of course in a court of law he would have been sworn to these matters, but these proceedings were not in a court of law, and where the alien has been given a change to show her version of the facts it is obviously not improper or unfair for the inspector to include his own personal observations in the report.
I. (c).
Is the report submitted to the Secretary unfair and distorted in that a material part of the statements were omitted or distorted by the interpreter? It may be admitted that since the decision of the Secretary is the vital matter in these proceedings, any substantial discrepancy in the report, by which the Secretary is misled as to material matter, is a very serious charge, not only as to the fairness of the hearing, but also against the local officers personally, and a charge not to be inferred -4- unless its truth is firmly established. These matters are:
(1) That Tonka is reported as saying that she worked for $2.00 per month, while by her affidavit she says that her statement showed $2.50 and $5.00 per month from each of several men. Your Honor well knows how frequently a witness will fail to express on the stand all that he has on his mind. This is clearly such a case, but even if the witness did say what she now claims she meant to say, we fail to see how she has been injured. Vaska Belen, or Joe Miler, to use his English name, testified to practically the same thing (Record p.22). However the question as to whether she received $2.50 or $10.00 per month in addition to her board is entirely immaterial in determining whether she was a prostitute or liable at time of entry to become a public charge. It would not even be evidence on which to grant a new trial in criminal action — much less will its accidental misinterpretation (if indeed it was misinterpreted) justify habeas corpus in this proceeding.
(2) The alien now says that she did not have an illegitimate child before marriage. She denies this child in her affidavit, but she does not deny having said so at the hearing. But if she means her affidavit in that particular to deny also her statement to the effect at the hearing, then as she herself points out, it was corrected by her husband's subsequent testimony where he says (p. 18) that Tonka's only illegitimate child (the one that died) was born during her marriage. However, the exact number of illegitimate children which she has borne, and particularly whether she had one over twelve years ago is entirely immaterial, and could -5- not have influenced the Secretary in his decision.
(3) That she did not state at the hearing that she wanted to go back to Austria to her children. This also is immaterial. Her wishes could have had nothing to do with the decision of the Secretary, as to whether she was a prostitute. If anything, her wish to go back to her children would indicate that she was not a prostitute. But her deportation could in no manner hinge on her wish, and therefore her statement, even if mistranslated was entirely immaterial.
(4) Was affiant's waiver of counsel misinterpreted in the report? We respectfully contend that it was not. The report (p. 17) shows that she stated that she waived such right. In her affidavit she only says that she did not mean to waive her right to counsel if she could get one. There is nothing in the record to show that any different interpretation was ever put on her answer. Indeed, the fact is that as soon as she obtained counsel he was shown every consideration by the Department. But the officers were under no obligation to themselves employ counsel for her. The answer in the record is obviously just what she stated since it fairly states what she now says she meant to say.
(5) The alleged misinterpretation referred to in the affidavit of Ivan Scarich is obviously only a case where the witness when on the stand did not fully express himself and afterwards thinks that he said everything that he then had in his mind. At any rate the full interpretation of his testimony (p. 20 of the -6- (record) does not leave room for any misconception as to the meaning of the phrases objected to in the affidavit. He now objects to being reported as saying that Tonka was living "with a crowd of men", and "living with a fellow by the name of Paska Belin", on the ground that he did not say she was living with them in any improper relation. His further testimony shows that the language of the report, even if not an absolutely correct translation, could not have prejudiced the alien, for such further testimony was to the effect that the witness did not know of any improper relations between her and the borders. His testimony in the report, taken as a whole, is the same as his affidavit as to what he actually meant to testify.
II.
Was there any evidence to justify the finding on the Secretary that the alien was:
A. One found practicing prostitution after entry:
B. One likely to become a public charge at the time of entry.
On the first point is the evidence and record showed or tended to show that prior to her entry and after her marriage and while her husband was living in America she had an illegitimate child; that after reaching America, she went out with another man under such circumstances as to provoke an assault from her husband; that within a year after landing she deserted her husband in Pittsburg to follow another "gentleman friend" to Seattle; that for the past year she has been living in Seattle in the same house -7- with him and other men under circumstances and with sleeping accomodations difficult to reconcile with any feelings of modesty; that she has received a love letter addressed to her as "wife" from another one of the boarders; that she is now, and for years has been suffering from a disease, the result of gonorreheal infection; that about the time of her arrest she declared to her husband in the presence of a witness that she would practice prostitution if she wished to do so. In addition to this the report shows that she expressly stated to the inspector that she was living with a certain man as his wife and that she had been intimate with numerous other men and that from all the surroundings in her room, etc., he had no doubt but that she was a prostitute. There was also a good deal of hearsay evidence about several other men having told the husband that she was a prostitute. While this last would not be admitted in a court of law in this country, it was proper enough in a summary proceeding of this sort. Indeed it we may credit the newspaper accounts of foreign trials it would have been entirely proper in a criminal trial under the Code Napoleon. It was not unfair or arbitrary to consider it and give it such weight as it may be entitled to.
We do not care and do not need to argue that all these matters tend strongly to show that the alien is a prostitute. Their weight is in no manner for this court. There being evidence on which to base the finding it can not be considered as purely arbitrary and must stand.
On the second point as to the probability of the alien becoming a public charge at time of entry, we find the following additional facts. She had for years been suffering -8- from a venereal disease; her husband and his relatives had abused and mistreated her and her minor children; nevertheless they left them in Europe, presumably because there was no money to bring them along; at the time of her entry with her husband he was just out of an insane asylum where he had been confined for several years and was of such a jealous and brutal nature that it was almost certain that a violent clash would result with her loose sexual nature and that the normally to be expected thing has now happened, to-wit: her elopement with another man, subsequent illness, prostitution and inability to earn enough to pay her bills. If the alien is not now a public charge she is evidently on the verge of becoming one, and everything that has happened was certainly in exact line with the reasonable probabilities attending the circumstances of her entry. There is certainly nothing arbitrary or unfair in such a finding.
We do not discuss the positive proof of adultery before entry showing that the alien had at that time committed an offense involving moral turpitude since the Secretary did not see fit to base his order of deportation thereon. But in view of counsel's argument we cannot forbear the suggestion that if sexual intercourse of a married woman with a man other than her living husband is not considered as both adultery and an offense involving moral turpitude among every people under the canopy of heaven, then we have entirely misread both history and law.
Nor do we consider the affidavits submitted for the first time with the brief tending to show the husband's cruelty, or how promiscous living of men and women under the -9- same roof may be regarded by foreigners. These matters in no manner effect fairness of the hearing before the Department, or the fairness of the ruling of the Secretary, and therefore are not properly before this court for consideration. We will only say that if they are true we hope that the husband also may be deported.
Respectfully submitted,
C. F. RiddellUnited States Attorney. E B Brockway
Assistant United States Attorney.
No. 2459
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON
In the Matter of the Application of Tonka Bajlo for the Writ of Habeas Corpus.
Brief of Government.
FILED IN THE U. S. District Court, Western Dist. of Washington.
May 10, 1913
FRANK L. CROSBY, Clerk, By EML Deputy
