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United States v. District Director of Immigration and Naturalization

July 17, 1939


Appeal from the District Court of the United States for the Southern District of New York.

Author: Clark

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The relator, a native-born Croat, now a practicing physician of Berlin, Germany, possessing a duly visaed Hungarian passport, sought admission to the United States as a visitor, asserting, as his objective, rest and cure or his health in this country. So far, he has found the pathway to his objective rocky indeed.

Arriving in this country on February 2, he was delivered at Ellis Island on February 3, 1939. He was then examined before a Board of Special Inquiry, and testified through an interpreter in German. The hearing was continued until February 6, 1939, when he again testified, this time through an interpreter in Croatian. These examinations covered the purpose of his trip to this country, his Hungarian passport based upon his application for Hungarian citizenship, and his political activities in his native country, Yugoslavia. At their conclusion he was denied admission by the Board, on the ground that he had not established a non-immigrant status as a visitor and was therefore to be excluded as a quota immigrant not in possession of the required immigration visa. He appealed. On February 17, 1939, the Board of Review recommended that the case be reopened to give "consideration" to a letter from the Department of State of February 11, 1939, and its enclosures, "in so far as they touch upon the right of the alien to enter the United States and with particular reference to the matter of whether the alien admits or affirms an admission said to have been made before the American Consul in Berlin that he - (1) Impersonated another in applying for an immigration visa, or (2) Forged the name of another to an application for an immigration visa." On the next day the Commissioner of Immigration directed the authorities at Ellis Island to reopen the case before a Board of Special Inquiry for the recommended purpose (stated in the same language as was used by the Board of Review), and requested that the rehearing be expedited as much as possible. The rehearing was had on February 20, and again resulted in an order of exclusion.

Though never introduced in evidence against the alien, the letter of Februay 11, 1939, from the Department of State by the Under Secretary to the Secretary of Labor, together with its enclosures, appears of record in the case and seems to have served an important function. The letter referred to discussions of the Jelic case between officials of the two departments on February 9 and stated that there was being transmitted therewith a copy of a note of the same date from the Yugoslav Legation, "together with further evidence of the terroristic activities of Jelic," listing the enclosures, also that the Yogoslav Minister had informed the Department that he was convinced that the sole purpose of Jelic's desire to enter the United States was "to carry on terroristic propaganda and activities against high personalities in Yugoslavia." The enclosed note from the Royal Yugoslav Legation in Washington charged that the relator's entry in the country was for the purpose of "creating unrest among the Americans of Yugoslav origin" and concluded, "The Minister of Yugoslavia will be much grateful to the Secretary of State to take into consideration these facts and deny Jelic the entry into the United States." Other enclosures in the Secretary's letter included a poster, and translation thereof, of a political meeting and the Croatian almanac for 1939, with translation of certain pages, being claimed to have bearing on the political activities of the relator, and also a copy of a lengthy dispatch from the American Consulate General at Berlin, dated April 22, 1938, "concerning the attempt of Jelic to obtain a visa in the name of Andrija Artukovic."

At the close of the rehearing on February 20, 1939, the Board of Special Inquiry again voted to exclude the alien for the same reason as before, thus again denying his status as a visitor for a temporary stay in this country (as a "tourist" or "temporarily for business or pleasure," 8 U.S.C.A. § 203). The relator again appealed. On March 11, 1939, the Board of Review rendered its decision. It held that, so far as concerned the ground of exclusion found to exist by the Board of Special Inquiry, the alien's appeal must be sustained, because it was "quite clear from the facts recited that the claim of a non-immigrant status as a visitor has been fairly established by the affirmative testimony of the alien and his witnesses." It conceded that the Board of Special Inquiry, having had other claims before it, had rejected them in relying solely upon the stated reason for exclusion. Nevertheless, it considered that it must pass upon other claimed reasons for exclusion. As to the alien's political activities, it was held that there was no evidence to support to conclusion that "by reason of the alien's public utterances or writing or actions he has brought himself within the purview of the Act of October 16, 1918, as amended [8 U.S.C.A. § 137], requiring his exclusion under that Act." Since the respondent now makes no claim as to this ground of exclusion, as well as to the one relied on by the board of first instance, and since the evidence is so wholly in accord with the conclusions of the Board of Review, we may dismiss both of these grounds from further consideration.

The other claimed reason, dealing with the relator's actions in attempting in 1938 to secure a visa for his friend Andrija Artukovic and his statements concerning them at the hearing of February 20, 1939, was, however, considered sufficient cause for his exclusion. The order was placed on the ground "that the alien admits the commission of crimes involving moral turpitude, namely, forgery and violation of Section 22(b) of the Immigration Act of 1924 [8 U.S.C.A. § 220(b)], to wit: personation of another." It was after the order of exclusion was thus affirmed that the relator sued out this writ of habeas corpus, which the District Court dismissed, saying that it appeared from the record "that the alien out of his own mouth admitted before the Immigration authorities to having committed offenses involving moral turpitude (forgery and personation)." The court also found that the record did not substantiate the alien's position that he did not receive a fair and impartial hearing. The relator's appeal from the District Court's dismissal of the writ brings these matters before us.

Since, after various vicissitudes, the order of exclusion was eventually rested solely upon the alien's admissions at the hearing of February 20, 1939, his testimony then becomes most important. He was examined, and testified through an interpreter in Croatian. First he was questioned as to whether he could return to Germany (he said he could and that he had left a $15,000 medical practice there in charge of an assistant) and as to his application for Hungarian citizenship, upon which his Hungarian passport was obtained. Then he was asked if he knew who Andrija Artukovic was. He explained that Artukovic was a friend persecuted by the German authorities to such an extent that he had to hide himself in Germany; that he had desired to come to the United States, where he had relatives; that the relator helped him as he could in connection with obtaining the American visa because Artukovic couldn't and didn't dare to appear personally at the American Consulate in Berlin, Germany, as he knew the German authorities would arrest him at once. So the relator intervened in 1938 at the American Consulate in Berlin for his friend, stating, "It was my intention to do something in favor of this man here with the American authorities because he is a victim of German persecution." Then ensued the following:

"Q. Did you go to the American Consul, taking his photographs? A. Yes.

"Q. Did you file an application there for your friend? A. Yes.

"Q. Did you sign his name to the application for the visa? A. I had his documents with me. The application was signed by him before I appeared at the Consulate.

"Q. When you appeared at the American Consulate, at first, did you say that you were Andrija Artukovic? A. Yes, in order to be able to appear before the Consul.

"Q. And how was it discovered that you were not Andrija Artukovic? A. They sent me to the medical officer where I told the doctor who was on duty there that I was not Andrija Artukovic and that ...

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