Tod v. Waldman

This is a certiorari to a judgment of the Circuit Court of Appeals for the Second Circuit, discharging Mrs. Szejwa Waldman and her three minor children as relators in a writ of habeas corpus. The writ was issued by the District Court for the Southern District of New York, to Robert E. Tod, Commissioner of Immigration at Ellis Island. That court dismissed the petition and remanded the relators. Mrs. Waldman and her children, reaching New York from Europe, were, after examination, detained at Ellis Island on August 28, 1922, for deportation, on the ground that they were liable to become public charges if admitted to the United States, and also because the mother was an illiterate person. She appealed to the Department of Labor, which directed the case to be reopened before a Board of Special Inquiry for the purpose of according her a re-examination regarding her ability to read Yiddish and Hebrew, with direction, if she did not pass it, to deport her and her family, without further reference to the department. She was re-examined. She alleged in her petition that although she was able to read in Yiddish, she was declared illiterate and she and her family were ordered deported on the next sailing and was refused appeal from this decision. She further alleged that she and her family were seeking admission to the United States to avoid religious persecution in their home in Proskurow (once in Russia and now in the Ukraine), that she escaped from there in 1919, and after 17 months spent in securing a passport to this country came here as a refugee; that, if she is deported from the United States, she must be returned to Proskurow, and that she and her children would be in danger of death; that she and they, as refugees from religious persecution, are exempt by the immigration statute from the operation of the literacy test, but that this claim as such refugees had not been considered by the Commissioner of Immigration or the Secretary of Labor pursuant to the rules of the Immigration Bureau, although the facts were fully shown in her sworn evidence before the Commissioner. Her petition further alleged that relatives of hers, who are responsible citizens and residents of the United States, are willing to furnish a satisfactory bond that the Waldman family will not become public charges; indeed, that they are themselves willing and able to agree to support the family.

The return asked that the writ be quashed because it did not appear that there was no evidence before the department upon which the warrant could be based, or that the issues sought by the petition now to be litigated in the court had not already been determined by the Department of Labor adversely to the aliens. The return exhibits the records of the department and the evidence taken, and a medical certificate showing that one of the daughters, Zenia Waldman, is afflicted with a dislocation of the left hip, causing shortening of the left leg and lameness, which may affect her ability to earn a living, and that for this, and for failure of the mother to pass the language test, all the aliens were properly ordered excluded; that on appeal, after a careful consideration, the Second Assistant Secretary directed that the case be reopened before a Board of Special Inquiry; that another hearing was given by a different Board of Special Inquiry and the minutes of the prior hearing being made a part of the evidence taken and other evidence introduced, a copy of which is annexed. And that the board duly and unanimously reaffirmed the former order of exclusion. The return concludes:

'The proofs and record of the proceeding before mentioned having been duly transmitted to him, the Secretary of Labor, after carefully considering the evidence presented in the record, duly affirmed the excluding decision of the board and directed the deportation of the aliens herein; and for the cause of the detention of the said aliens complained of in the petition herein, deponent says that the said aliens are and since the receipt of said writ of habeas corpus have been held under and in obedience to said writ.'

The prayer was that the writ of habeas corpus be dismissed and the aliens remanded to the custody of the commissioner, to be dealt with in accordance with the order of exclusion.

The Circuit Court of Appeals ruled that the failure of the return to set out the details of the test as to the knowledge of Mrs. Waldman in Yiddish and Hebrew, at the first and second hearing, was improper; that the test directed in both Hebrew and Yiddish, which the statute recognized as different languages, was a double one, for which there was no warrant in he statute. Without stressing these defects, the court, pointing out that by section 17 of the Immigration Act of February 5, 1917 (chapter 29, 39 Stat. 874, 887 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289 1/4 ii]), and regulations duly issued thereunder, when a case is referred back to a board by the bureau or department, in order that additional evidence may be taken, and a new decision is rendered by the board, the reopened hearing is to be 'of the same nature and subject to the same conditions, limitations and privileges as an original hearing,' held that the departmental order reopening the case was illegal in that it took away the right of appeal after the second examination, and that the warrant of deportation was void. The Circuit Court of Appeals further held that the record so left the case of the child Zenia that it must be assumed that the decision to exclude her was not affirmed by the Department of Labor, and that the department may well have disagreed with the local board as to whether or not the physical defect would interfere with the ability of Zenia to earn a living. The order of the District Court was reversed, with directions to enter an order discharging the relators and releasing their bail.

An application for a rehearing was made to the Circuit Court of Appeals to modify its order, so as not to discharge the relators and their bail, but to direct that the trial court might itself proceed to hear the issues and determine the admissibility of the appellants. The Circuit Court of Appeals declined to make this modification, but said that as the judgment was not res adjudicata, the executive authorities might rearrest the relator and institute further proceedings to test the legality of her being in the country. It is the discharge of the relators and their bail by the Circuit Court of Appeals of which the government complains.

Mr. Assistant Attorney General Donovan, for petitioner.

Mr. Max J. Kohler, of New York City, for respondent.

Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.