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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. ZURBRICK, DISTRICT DIRECTOR OF IMMIGRATION, APPELLANT, V. ALICE LOVE WOODHEAD, APPELLEE. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION. DECIDED JUNE 28, 1937

Before HICKS, SIMONS and ALLEN, Circuit Judges.

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, bave 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

respectively. During the same years, there were deported in addition, persons who had "remained longer than permitted", numbering 986, 786, and 850, respectively. It is believed that the bill would be greatly strengthened if the discretionary authority were not limited by an arbitrary number and an arbitrary time limit. This end could be accomplished by striking out (b) of section 2.

The stipulation, section 2 (b) "That no alien shall be permitted to remain in the United States under subdivision (a) of this section after the elapse of 4 years from the enactment of this act", is written in ambiguous language. Students of law raise the question as to whether this provision means that the act is not effective "after the elpase of 4 years"; or as to whether permission to remain is not effective "after the elapse of 4 years." The intent is probably the former construction. It would obviate future test cases if the bill were clarified upon this point.

IV. PERSONS WHO ENTERED THE UNITED STATES ON TEMPORARY PERMITS NOT BENEFITED EVEN THOUGH STATUS HAS CHANGED

The fact that section 2 (a) applies to the classes specified, only when "found subject to deportation" creates a hardship for desirable temporary entrants who would not wish to let permits expire in order to become technically deportable, and so qualify for possible discretion under the terms of the bill. Under the pres

ent law such persons must leave the country merely to secure a visa and immediately return to this country. Such futile journeying is not eliminated by the bill. Temporary entrants have already met the selective tests of admissability, and are usually very desirable, often important citizen timber.

Section 2 (c) authorizes the establishment of permanent records of entry only for persons whose deportation warrants may be canceled under section 2 (a). It does not permit a change of status in the records, for temporary entrants whose immigration status has actually changed in fact; nor permit them to remain in the United States upon their changed status. Such changes often occur through the naturalization of husband or wife, through marriage, or through such occupational transitions as that of student to minister or professor. Permitting such temporary entrants to remain on a permanent basis and charged to their country's quota is obviously to the advantage of the United States.

V. LEGISLATION OF ENTRY AMENDMENT INADEQUATE

Section 7 extends the legalization of entry privilege to nondeportable aliens of good character only if their date of entry into the United States is prior to July 1, 1924. The present law limits the date of entry of those eligible, to June 3, 1921. Those permitted so to establish a permanent record of arrival must under the terms of the present law be: "of good moral character"; "not subject to deportation"; have resided in the United States continuously since entry"; and must undergo a searching new examination before United States immigration inspectors. If they pass such tests, there is no reason further to rely upon some fixed date of entry, to make them more or less desirable.

There are certain groups of persons who entered subsequent to July 1, 1924, in good faith, notably commuters from Canada, who settled down in the United States before the 1928 Decision of the United States Supreme Court, which has since made it necessary for such commuters, if they wish to remain, to have qualified back at the time of entry, with permanent visas. It is believed that the numbers in this group alone would considerably exceed the total number, 8,000, who might be "found subject to deportation", and subject to the discretionary features of this bill. It would greatly strengthen this amendment, and distinctly benefit the United States, if this legalization of entry privilege were not limited to arrivals prior to July 1, 1924.

B. AMELIORATIVE FEATURES OF THE DIES BILL

In spite of its disappointing limitations and its drastic new provisions, three important principles are however, embodied in this bill:

I. EXTENSION OF THE LEGALIZATION OF ENTRY PRIVILEGE TO CERTAIN
NONDEPORTABLE ALIENS OF GOOD CHARACTER

The advantages to the United States, as well as to the foreign-born, of such changes in the immigration law are almost self-evident. The way would be opened for the naturalization of considerable numbers of men and women living in the United States who entered this country between June 3, 1921, and July 1, 1924, who 16022-37-pt. 2-9

have been unable to secure citizenship, because the records of their arrival could not be located at the ports.

II. PERMISSION TO CHANGE IMMIGRATION STATUS, TO CERTAIN ALIENS RESIDENT IN THE UNITED STATES, WITHOUT THE NECESSITY OF DEPARTURE AND REENTRY

Section 2 (c) would correct, for the very limited numbers permitted to remain under section 2 (a), the present futile and costly process of going out of the United States and coming back again, in order to change upon the official records, an immigration status which during residence in this country has actually changed in fact. This process is costly to the alien and his family, and very costly to the United States, in its waste of the time of inspectors of the Immigration and Naturalization Service, United States Department of Labor; and the American Consular Service of the United States Department of State.

III. DISCRETIONARY ADMINISTRATIVE POWER IN CERTAIN TYPES OF DEPORTATION CASES

This principle, which appears in section 2, is of primary importance. In certain limited aspects, it extends discretionary authority to deport; in others, authority not to deport. Under the present law, not even the President of the United States has any authority to "pardon" a mandatorily deportable alien, even though he be responsible and of good character; though the members of his family may be citizens of the United States; and though the deportation of the breadwinner may leave his family dependent upon charity in this country.

C. RECOMMENDATIONS

With certain changes, the Dies bill can be made a just and useful measure, which could go far, with great advantage to the United States, to relieve the cruel and unnecessary hardships which now exist. Among those changes, to summarize, are the following:

AMENDMENTS NEEDED IN THE BILL

I. The extension of the power to deport (sec. 1), should be accompanied by discretion not to deport (sec. 2 (a)) in all classes, when deportation would violate human considerations and family relationships.

II. Inasmuch as the bill provides that persons permitted to remain shall be charged to respective quotas, there is every reason to strike out the section which limits the application of the act to 4 years and to 8,000 persons (sec. 2 (b)). III. Section 2 should be revised to include temporary entrants.

IV. Since the legalization of entry privilege is already limited to admissible and desirable aliens, its application should not be limited to arrivals prior to July 1, 1924. Persons thus permitted to remain, should be permitted to proceed to naturalization, upon the basis of their record of entry thus established.

The Immigrants' Protective League is in daily, active contact with the men, women, and children who will be affected by this legislation, and will see its human results at first hand. Each month, it handles 800 or 900 individual cases, representing 50 different races and peoples settled here in the Middle West. The league requests that these amendments be embodied in the bill, and that its passage then be as rapidly as possible secured.

STATEMENT OF WILLIAM B. GRIFFITH, CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE IMMIGRATION RESTRICTION LEAGUE, NEW YORK CITY

Senator SCHWELLENBACH. You may proceed, Mr. Griffith.

Mr. GRIFFITH. My name is William B. Griffith. I am chairman of the executive committee of the Immigration Restriction League, Inc., of New York. That organization has been in existence for 30 years. I was the founder of it. We try to be fair in our analysis of bills that are presented, and we have bimonthly meetings where they are discussed.

Senator SCHWELLENBACH. How large an organization is that?

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