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Tassari v. Schmucker

November 7, 1931

TASSARI
v.
SCHMUCKER, DISTRICT DIRECTOR OF IMMIGRATION, ET AL.



Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner and Luther B. Way, Judges.

Author: Chesnut

Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.

CHESNUT, District Judge.

The appellant, who is admittedly an alien, is in custody under a warrant for deportation issued by the Acting Secretary of Labor. He petitioned the District Court for a writ of habeas corpus for his release. The hearing resulted in a dismissal of the petition and a remand of the appellant to the custody of the District Director of Immigration for deportation. This appeal has been taken from the order of dismissal and remand, which also stayed actual deportation pending appeal.

The warrant for deportation states that the cause for deportation is that the alien (who entered this country in 1906) "has been sentenced, subsequent to May 1, 1917, to imprisonment, more than once for a term of one year or more for the commission subsequent to his entry of a crime involving moral turpitude, to wit, entering with intent to steal." The authority for deportation of aliens for the stated cause is found in title 8, ยง 155, of the United States Code Annotated, which also provides as follws: "In every case where any person is ordered deported from the United States under the provisions of this subchapter, or of any law or treaty, the decision of the Secretary of Labor shall be final." The existence of the cause for deportation was found as a fact by the Department of Labor as a result of a hearing given to the alien at which he was represented by counsel.

The only questions for our consideration are whether the record shows the alien did have a fair hearing; whether the determination of fact by the Department is supported by substantial evidence; and whether the law was correctly applied by the Department of Labor. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S. Ct. 302, 71 L. Ed. 560; Zakonaite v. Wolf, 226 U.S. 272, 285, 33 S. Ct. 31, 57 L. Ed. 218; Lewis v. Frick, 233 U.S. 291, 300, 34 S. Ct. 488, 58 L. Ed. 967; United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed. 221; Mason v. Tillinghast, 27 F.2d 580 (C.C.A. 1st). The contention urged by counsel for the appellant is that the hearing was not fair because the evidence before the Inspector of Immigration acting for the Department of Labor was legally insufficient to establish the fact that the appellant had been twice sentenced.

To the petition for the writ of habeas corpus the respondent the Director of Immigration filed an answer justifying the warrant for deportation, and as exhibits therewith, a complete record of the deportation proceedings including a stenographic report of the testimony taken at the hearing given the appellant, and as a part thereof, certificates (under seal of the court) of the clerk of the court of oyer and terminer, general jail delivery and quarter sessions of the peace, of the city and county of Philadelphia, showing that on November 16, 1917, Francesco Tassari (on Bill No. 241) had been convicted of "entering with intent to steal" and sentenced to the State Penitentiary for a period of not less than two years and six months, and not more than three years; and that on January 18, 1918, one Frank Ticcro had been convicted of ...


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