ture and cause of the accusation. The rule as to a definite standard of action is not so strict in cases of the delegation of legislative power to executive boards and officers. Cases like the one before us were distinguished from the Cohen Case by Chief Justice White in his opinion in that case when he said (p. 92) "the cases relied upon all rested upon the conclusion that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded." The next objection is that there was no evidence before the immigration inspector and the Secretary upon which a warrant could properly issue. A special objection of this kind is taken in the case of Petro Nigra. It is said that, in the record of the hearing of his case before the inspector, there does not appear any evidence of his conviction under the Espionage and Selective Draft Acts. It is true that the certified copies of the indictment and judgment against all the petitioners do not appear in the hearing of Nigra as shown, but there is a stipulation between the parties in another part of the record herein that such certified copies were used in the hearing of each petitioner. It is clear that the hearing of Nigra was not properly reported and that his case is like the others. But it is said there was no evidence in the hearings of any of them as to their being undesirable residents of the United States. There were their convictions. Those were enough to justify the Secretary in finding that they were undesirable. The statute does not expressly require additional evidence. If it did, there was here the circumstance that, after the examination of the petitioners had proceeded to a certain point of inquiry, the petitioners under the advice of counsel declined to answer further questions, an attitude from which the Secretary might well infer that what would be revealed by answers would not add to their desirability as residents. Of course the question how much additional evidence should be required must vary with the class which makes its members eligible for deportation. Alien enemies interned during war may be very good people, and their having been interned may have little bearing on their being good material for residents or citizens when peace returns; but the aliens in this case were convicted of crimes under such circumstances that the Secretary without more might find them undesirable as residents. But the Secretary made no express finding, so far as the warrant for deportation discloses. It is contended that this renders the warrant invalid. It is answered on behalf of the appellee, that, in habeas corpus proceedings, the prisoner is not to be discharged for defects in the original arrest or commitment, because the object of the proceeding is not like an action to recover damages for an unlawful arrest or commitment, but is to ascertain whether the prisoner can lawfully be detained in custody, citing Nishimura Ekiu v. United States (142 U. S. 651, 662). What that case really decided was that, even if the arrest was unjustified by the warrant or commitment on its face, yet if the evidence on the hearing of the petition for habeas corpus showed either that facts existed at the time of the arrest or had occurred since, which made the detention legal, the court would not release the prisoner but would do what justice required and would dispose of the prisoner accordingly. Iasigi v. Van De Carr (166 U. S. 391); Stallings, v. Splain (253 U. S. 339, 343); Bilokumsky v. Tod (263 U. S. 149, 158); Mensevich v. Tod decided this day, post, 134. In the case before us the defect in the warrants of deportation has not been supplied. The defect is jurisdictional. There is no authority given to the Secretary to deport except upon his finding after a hearing that the petitioners were undesirable residents. There is no evidence that he made such a finding except what is found in the warrant of deportation. The warrants recite that upon the evidence the Secretary has become satisfied that the petitioner aliens have been found in the United States in violation of the Act of May 10, 1920, and that they were finally convicted of the offenses named in the act. They could not have been found in the United States in violation of the Act of 1920 until after the Secretary had found that they were undesirable residents. Appellee's argument is that, therefore, this must be taken to mean that he finds them undesirable citizens. But the words "have been found" naturally refer to a time when the warrant of arrest was served on them, and before he had them before him. They exclude a possible meaning that he was then making their stay in the country illegal by implication of a finding that they were undesirable. This conclusion is borne out by the language of the Secretary in the warrant of arrest which before the hearings he issued against the petitioners and in which he directed their arrests on the ground that they had been found in the United States in violation of the Act of May 10, 1920. It would clearly appear from these two documents, which are naturally to be construed in pari materia, that the Secretary did not deem his finding that the petitioners were undesirable citizens essential to enable him to deport them. Indeed, he seems to have used forms applicable to aliens of a fixed excluded class to be deported on identification with the class, without any further finding by him. The natural construction of his language is that he has become satisfied that they are in the country in violation of the act, solely because they have been convicted as stated. Does this omission invalidate the warrant? The finding is made a condition precedent to deportation by the statute. It is essential that, where an executive is exercising delegated legislative power, he should substantially comply with all the statutory requirements in its exercise and that, if his making a finding is a condition precedent to this act, the fulfillment of that condition should appear in the record of the act. In Wichita R. R. & Light Co. v. Public Utilities Commission (260 U. S. 48), a statute of a State required that a public utility commission should find existing rates to be unreasonable before reducing them, but there was no specific requirement that the order should contain the finding. We held that the order in that case made after a hearing and ordering a reduction was void for lack of the express finding in the order. We put this conclusion not only on the language of the statute but also on general principles of constitutional government. After pointing out the necessity for such delegation of certain legislative power to executive agencies we said (p. 59): "In creating such an administrative agency the legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective. "It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this." If the principle thus stated is to be consistently adhered to, it is difficult in any view to give validity to the warrants of deportation before us. It is said that no exception was taken to the warrant on this account until the filing of the brief of counsel in this Court. There was an averment that the warrant was void without definite reasons in the petition of habeas corpus. There was nothing of the kind in the assignment of error. But we may under our rules notice a plain and serious error though unassigned. Rules 21, Sec. 4, and 35, Sec. 1, 222 U. S., Appendix, pp. 27, 37; Wiborg v. United States (163 U. S. 632, 658); Clyatt v. United States (197 U. S. 207, 221-222); Crawford v. United States (212 U. S. 183, 194); Weems v. United States (217 U. S. 349, 362). The character of the defect is such that we can not relieve ourselves from its consideration. The warrant lacks the finding required by the statute and such a fundamental defect we should notice. It goes to the existence of the power on which the proceeding rests. It is suggested that if the objection had been made earlier it might have 'been quickly remedied. There was no chance for objection afforded the petitioners until, after the warrant issued, in the petition for habeas corpus. The defect may still be remedied on the objection made in this Court. We need not discharge the petitioners at once because of the defective warrant. By Sec. 761 of the Revised Statutes, the duty of the court or judge in habeas corpus proceedings is prescribed as follows: "The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." Under this section, this Court has often delayed the discharge of the petitioner for such reasonable time as may be necessary to have him taken before the court where the judgment was rendered, that defects which render discharge necessary may be corrected (In re Bonner, 151 U. S. 242, 261; Medley, Petitioner, 134 U. S. 160, 174; Coleman v. Tennessee, 97 U. S. 509; United States v. McBratney, 104 U. S. 621, 624; Bryant v. United States, 214 Fed. 51, 53). The same rule should be applied in habeas corpus proceedings to test the legality of confinement under the decision of an administrative tribunal like the Secretary of Labor in deportation cases. No time limitation is imposed upon proceedings under the Act of May 10, 1920. If upon the evidence the Secretary finds that these petitioners are undesirable residents and issues warrants of deportation reciting that finding with the other jurisdictional facts, there will then be no reason, so far as this record discloses, why they should not be deported. Accordingly, the judgment of the District Court is reversed with directions not to discharge the petitioners until the Secretary of Labor shall have reasonable time in which to correct and perfect his finding on the evidence produced at the original hearing, if he finds it adequate, or to initiate another proceeding against them. NO. 7549, UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT. JOHN L. Before HICKS, SIMONS and ALLEN, Circuit Judges. DE SIMONS, Circuit Judge. Once more we are impelled to direct attention to the toll in human anguish which so often follows that literal reading of the Immigration Act by which every departure from the United States, however brief and temporary, and pursuant to no intention to relinquish domicile, constitutes subsequent return a new entry, subjecting the unsuspecting to exclusion or deportation. But the law is clear, and however cruel the result, we have no recourse but protest and recommendation. The present appeal is by the Director of Immigration from an order discharging an alien from custody under a deportation warrant upon her petition for a Writ of Habeas Corpus. The facts of record are undisputed. The petitioner is a young Scottish woman, who with her parents, brothers and sisters, emigrated to the United States and was lawfully admitted on September 22, 1924. She was then twenty-four years of age, and has lived here continuously since that time. So far as the record shows she has been capable of making and has made her own way, having been employed for years as a bookkeeper with the Detroit City Gas Company. She has never been refused admission to the United States, nor been arrested and convicted of crime or misdemeanor. There is no blot upon her character. She became afflicted, however, with active tuberculosis, and on April 12, 1934, was admitted for treatment to the Herman Kiefer Hospital, a public institution. Her own savings and those of her family having been swept away by the long period of depression, neither she nor they were possessed of means to pay the hospital expenses. Within the purview of the law she became a public charge. This coming to the attention of the immigration authorities, and it also coming to their attention that on February 25, 1934, within two months of her admission to the hospital, she had made a temporary visit of a few hours to Windsor, Canada, on a shopping tour with several girl friends, she was taken into technical custody and held for examination. The hearing which followed was fairly conducted. The return from Canada being an entry under the Immigration Act, it was found by the Secretary of Labor that at the time of such entry she belonged to the excluded classes under the provisions of § 3 of the 1917 Act in that she was (c) a person afflicted with tuberculosis, and (i) a person likely to become a public charge. A warrant for deportation issued-challenged by petition for a Writ of Habeas Corpus. The District Judge, understandably moved more by human compassion than strict adherence to controlling precedents, granted the writ and discharged the petitioner. We are compelled, however reluctantly, to reverse. Without regard to the lawfulness of the petitioner's original entry, without regard to the running of the period of limitation during which she might have been deported for violation of law, illness or acceptance of public aid following such entry, her subsequent entry into the United States following temporary departure, made possible her exclusion or her deportation after admission whatever her previous status. United States v. Day, 279 U. S. 398; United States v. Curran, 12 Fed. (2d) 394 (D. C.); Jackson v. Zurbrick, 59 Fed. (2d) 937 (C. C. A. 6). It has been thought, however, that it is within the power of the Secretary of Labor to demit the temporary visit to Canada. United States v. Flynn, 17 Fed. (2d) 524 (D. C., N. Y.); United States v. Davis, 13 Fed. (2d) 630 (C. Č. A. 2); United States v. Smith, 11 Fed. (2d) 981 (D. C., N. Y.); (see also concurring opinion in Jackson v. Zurbrick, supra). We therefore recommend that the execution of the deportation warrant be stayed until the petitioner, or those who may interest themselves in her behalf, shall have had opportunity to apply to the Secretary of Labor for administrative relief. The execution of the warrant in this case would be deplorable. It was thought by the Second Circuit Court of Appeals in United States v. Davis, supra, that even in some cases where crime had been committed deportation was to be regretted since it is exile, and a punishment abandoned by the common consent of all civilized peoples. Here no crime or misdemeanor was committed. The malady with which the petitioner was afflicted was not brought from abroad, but was contracted in the United States. The petitioner became a public charge through causes over which she had no control, during a time when millions of persons, aliens and citizens alike, accepted the aid of a benign government with no loss of human dignity. It is true that the petitioner might have made her American residence secure against any assault by applying for and securing citizenship, but it is probably also true that the hazard of her failure to do so had never been brought home to her. Her home is here. Her parents, brothers and sisters are here. She is now married to an American. Her ties to her native land have been completely severed. The court is without power to disturb the executive decision, but we apprehend that the Secretary of Labor is not so impotent. Reversed and remanded. STATEMENT OF FREDERICK A. BALLARD, REPRESENTING THE AMERICAN CIVIL LIBERTIES UNION Mr. BALLARD. Mr. Chairman, I would like to state briefly the position of the American Civil Liberties Union on the bill, which is that the union favors the bill provided it can be amended as follows: (1) To eliminate the restriction of 4 years as the maximum period within which the Secretary of Labor may exercise the hardship discretion. If the hardship discretion is good policy for 4 years we see no reason why it is not a good permanent policy. (2) To insert the provision which was contained in the KerrCoolidge bill, permitting the readjustment of status of a temporary visitor without the necessity of leaving the country. The necessity of an alien who, after being temporarily admitted, is shown to be entitled to permanent admission, going to the expense and trouble and taking the time to leave the country in order to comply with a mere formality, seems plainly to be without just cause. With these amendments the Civil Liberties Union would support the bill, which it feels to be a rational attempt to improve our deportation laws. I should point out, however, that the union is, of course, definitely opposed to the exclusion of radicals from the exercise of the hardship power (sec. 2-a). The union, of course, opposes any discrimination of any kind against either citizens or aliens on the ground of mere opinion. The union's support of the bill with this provision in it is not, of course, to be taken as an approval of this express continuance of the discrimination against radicals. If the radicals have ever done any criminal act they can and should be deported, but it is surely un-American to deport them because of their mere beliefs or because of their mere membership in some radical group, where they have never done or advocated a specific illegal act. Senator SCHWELLENBACH. I have received a communication from Mr. Ernst W. Puttkammer, chairman of the legislative committee of the Immigrant Protective League, which may be inserted in the record at this point. (The document referred to is here set forth in full, as follows:) IMMIGRANTS' PROTECTIVE LEAGUE, Chicago, August 5, 1937. Senator LEWIS B. SCHWELLENBACH, Committee on Immigration, United States Senate, Washington, D. C. MY DEAR MR. SCHWELLENBACH: We notice that H. R. 6391, dealing with the subject of deportation of aliens is now under consideration in the Senate in a subcommittee of which you are chairman. We find with satisfaction and pleasure, that the principle of discretionary power in certain types of deportation cases has been incorporated into it. While finding much in the bill to approve, we are again writing you, as a member of the United States Senate Committee on Immigration, to recommend certain changes in it which we feel would render it yet more effective and adequate in operation. I am accordingly enclosing another copy of our statement covering various aspects which we wish to commend to your attention. Would you be willing to present and support one or all of these changes in your committee and on the floor of the Senate? With appreciation of your interest and your efforts in behalf of this important legislation, I am, Sincerely yours, ERNST W. PUttkammer, Chairman, Legislative Committee. STATEMENT OF THE IMMIGRANTS' PROTECTIVE LEAGUE, CHICAGO, BY MRS. KENNETH F. RICH, DIRECTOR A. DRASTIC FEATURES OF THE DIES BILL I. FOUR NEW CLASSES OF DEPORTABLES CREATED, WITHOUT STATUTE OF LIMITATION The Dies bill is a measure which would incorporate into the deportation law, a number of drastic new provisions. Section 1: 1. Creates four new deportable classes. 2. Makes their deportation mandatory. 3. Requires their deportation regardless of date of entry, without statute of limitations. In some respects, this measure is therefore one of the most severe ever proposed. II. DISCRETION WITHHELD FROM CERTAIN CLASSES OF DEPORTABLES, REGARDLESS OF FAMILY TIES The Dies bill is drastic also (sec. 2 (a)), in that it withholds any discretion whatsoever, in the case of certain classes of persons now deportable because of their manner of life, or past conduct, or their political opinion. Such habits are subject to change. But deportation makes an old offense indelible. Even these classes of persons moreover, have families of United States citizens in this country, from whom it may be great hardship to be separated. Once separated by deportation, there is little hope of reunion. The break-up of families by banishment and exile harks back to the oppressive measures_practiced in certain other countries, before revolutions threw off their rule. Even in such cases, discretion should be extended to administrative authority. Destruction of intimate human ties should not be made mandatory upon a government by the laws of its country. III. LIMITATION OF DISCRETION AS TO NUMBER TO WHOM APPLICABLE AND AS TO PERIOD OF OPERATION WOULD SOON MAKE ACT INEFFECTIVE Strict limits are placed upon the numbers of persons who may benefit under the discretionary section of the bill (sec. 2 (b)). During the first year of operation, not more than 3,500 may be permitted to remain; during the other 3 years of operation, not more than 1,500 per year, or a possible total of 8,000 who might be covered. There is already an accumulation of approximately 3,000 special hardship cases in which deportation has been stayed, pending legislation. The fact, moreover, that any persons permitted to remain will be charged annually to the appropriate quotas (sec. 8), is additional argument for striking out this paragraph. The adaptability of foreign born already in America could reasonably give them a certain measure of preference over quota immigrants who had never tried out" life in the United States. To permit such persons to remain, would not increase the number of immigrants admitted. The figure, 8,000, is purely arbitrary. If discretionary authority lapses after 4 years, it is not only probable that the present problem will not have been met; but it is certainly evident that the same problem of rigidity and lack of discretion will be urgent again, 4 years from now. Legislation should be flexible enough to avoid the effect of a dead hand on the future. A more adequate measurement of the possible numbers for whom the bill should provide is suggested by reference to the recorded "causes" for deportation. During the years 1934, 1935, and 1936, according to the Secretary of Labor, the numbers deported because "without proper immigration visa" were 3,611, 2,824, and 3,181 |