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Kjar v. Doak

October 18, 1932

KJAR
v.
DOAK, SECRETARY OF LABOR, ET AL.



Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles Edgar Woodward, Judge.

Author: Sparks

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

SPARKS, Circuit Judge.

This is an appeal from an order of the District Court denying appellant's petition for a writ of habeas corpus, arising out of an order of deportation.

Appellant was arrested on a warrant issued by the Secretary of the United States Department of Labor, which charged him with being a member of, or affiliated with, an organization, association, society, or group that advises, advocates, or teaches opposition to all organized government, and with being a member of, or affiliated with, an organization, association, society, or group that causes to be written, circulated, distributed, printed, published, or displayed written or printed matter advising, advocating, or teaching the overthrow by force or violence of the government of the United States, in violation of section 137 (c) (d) (e), title 8, U.S.C. (8 USCA § 137 (c, d, e).*fn1

During the hearing which ensued before the immigrant inspector, and as a part of said proceedings, there was a further charge lodged against appellant by the Department of Labor to the effect that appellant was then in the United States in violation of the Immigration Act of 1924, 8 U.S.C. § 213 (a) (1), 8 USCA § 213 (a) (1), in that, at the time of his entry into the United States, subsequent to July 1, 1924, at an unknown port, he was not in possession of an unexpired immigration vise, and that he had been found in the United States in violation of the Immigration Act of February 5, 1917, 8 U.S.C. § 155, in that he entered without inspection.

Upon a hearing before the inspector, the record thereof was submitted to the Secretary of Labor, who found: (1) That appellant, at the time of his entry, was not in possession of an unexpired immigration vise. (2) That he entered without inspection. (3) That he is a member of, and affiliated with, an organization, association, society, or group, that causes to be circulated, distributed, printed, published, and displayed printed matter advising, advocating, and teaching the overthrow by force or violence of the government of the United States, and that he is a member of an organization that believes in and advocates the overthrow by force or violence of the government of the United States.

A warrant containing said findings was accordingly issued, by virtue of which appellant was taken into custody. He obtained a writ of habeas corpus, which writ upon hearing was discharged.

Appellant's first objection is directed to the form of the charge in the original warrant of arrest, in that the charge is made in the alternative; that is to say, the conjunctions used are disjunctive rather than conjunctive. Such use is for the purpose of connecting descriptive words or phrases of synonymous import, and will not be considered as constituting alternative charges. It will be observed that the finding in the warrant of deportation corrects this alleged defect, and, inasmuch as appellant did not raise the objection until after the warrant of deportation was served, he will be considered as having waived the alleged error.

The other alleged errors relied upon arise out of the conduct of the hearing before the immigration inspector, the findings of the Secretary of Labor, and the judgment of the District Court.

In the review of an executive decision, such decision will not be disburbed by the court if the parties concerned were afforded a fair hearing and if such decision is supported by substantial evidence. Low Wah Suey v. Backus, 225 U.S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; Prentis v. Cosmas (C.C.A.) 196 F. 372; Domenici v. Johnson (C.C.A.) 10 F.2d 433.

In a deportation proceeding before an executive officer, he is not bound to observe the strict rules of evidence as enforced by judicial tribunals, and the improper admission or rejection of hearsay evidence is not a ground for reversal of the action of the executive which has not resulted in a denial of justice. Bilokumsky v. Tod, 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed. 221; Tang Tun v. Edsell, 223 U.S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Chin Yow v. United States, 208 U.S. 8, 28 S. Ct. 201, 52 L. Ed. 369.

The evidence before the District Court consisted of the record made at the hearing before the immigrant inspector, at which appellant and his counsel were present. The evidence, in part, was to the effect that appellant is a native of Denmark, and first entered the United States on or about October 1, 1914; that early in 1928 he went to Russia and later to Denmark, and that in the latter part of the following June he entered the United States at an unknown place. Those facts appellant refused to admit or deny; but he admitted he was an alien, and was secretary and organizer for "The Trade Union Unity League," and was a field organizer for that league. He also stated that that organization is affiliated with the Red International Union Labor, which has its headquarters at Moscow, Russia. He further stated that at the time his testimony was given he was a member of the Communist Party of America; that he subscribed to the principles and teachings of the Communist Party as far as he understood them; and that the Communist Party is a world-wide party having a central committee constituted of delegates from all Communist Parties over the entire world, and having its headquarters at Moscow.

There was introduced in evidence a pamphlet published by Workers' Library Publishers, Inc., of New York City, entitled "Programme of the Communist International, Together with the Statutes of the Communist ...


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