Before AUGUSTUS N. HAND, CLARK and MAGRUDER, Circuit Judges.
Frederick Heinrich Weddeke sought, by a petition for a writ of habeas corpus filed on his behalf in the court below, to challenge the legality of his detention under a warrant of deportation. A writ was issued, and respondent made a return thereto, to which a traverse was filed. Argument on the pleadings was had in motion session, after which the District Judge, from the bench, directed the entry of an order dismissing the writ and remanding relator to custody. At the argument before us on appeal, counsel for respondent offered for our inspection the administrative file of the Immigration and Naturalization Service. Appellant objected to our consideration of the contents of this file on the ground that it was not part of the record before the District Judge and did not influence the decision below. The return to the writ recites certain facts as appearing "by the records of the Department of Justice of the United States with respect to the above-named alien, which records are in possession of respondent and are available for inspection of the Court and of the relator". To state in the return that a certain file is available for the inspection of the court is perhaps not equivalent to making the file a part of the return or incorporating it by reference therein. In view of appellant's objection, we shall disregard the contents of the file and dispose of the case as it appears from the pleadings.
Weddeke last entered the United States as a stowaway on December 9, 1926, without being in possession of a valid immigration visa. He has never been lawfully admitted for permanent residence. These facts are not in dispute, and it is also conceded that the alien, having entered this country illegally, is subject to deportation under 8 U.S.C.A. §§ 155(a), 213, and 214. His only chance to avoid deportation was to invoke the discretionary power given to the Attorney General by 8 U.S.C.A. § 155(c), as follows: "In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * (2) suspend deportation of such alien * * * if he finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien. * * *"
Some time in the early part of 1942, Weddeke was arrested on the charge of incest with his twelve-year-old daughter for acts alleged to have been committed in December, 1941, January, 1942, and May, 1942. He pleaded guilty, was convicted by the County Court of Nassau County, N.Y., on June 18, 1942, and sentenced to from five to ten years in the penitentiary.
Upon his release from the penitentiary (apparently on parole) he was arrested, on September 11, 1945, under an immigration warrant charging him with being subject to deportation on the ground of having entered the country illegally.
On December 5, 1946, he was accorded a hearing by an immigrant inspector. The inspector recommended that the alien be deported on the charge contained in the warrant of arrest.
On April 15, 1947, the Commissioner of Immigration and Naturalization ordered the relator to be deported. This order was affirmed on April 18, 1947, by the Board of Immigration Appeals, and on the same day a warrant of deportation was issued, under which warrant respondent is now holding the alien.
At a date not appearing in the record, but evidently after the warrant of deportation had been issued, the alien, according to an allegation in the petition, "requested the Immigration Service to stay deportation so that he can either open the proceedings in the County Court, for Nassau County, New York, in which he was convicted, or make a pardon application to the Governor of the State of New York, which would wipe out his conviction." This application was denied by the Commissioner on October 13, 1947. Shortly thereafter, application was made to the court below for a writ of habeas corpus.
The petition in a somewhat vague sort of way sought to attack the validity of the judgment of conviction in the state court on the ground that Weddeke had been deprived of his constitutional rights under the Fourteenth Amendment in that he had been inveigled by the District Attorney into pleading guilty to a crime of which he was innocent, without benefit of counsel and without expressly waiving his right to counsel. Cf. Rice v. Olson, 1945, 324 U.S. 786, 65 S. Ct. 989, 89 L. Ed. 637. Attached to the petition were affidavits by Weddeke's wife and daughter, executed October 25, 1947, to the effect that the accusation of incest was a frame-up by them and that the criminal charges were entirely untruthful. The wife's affidavit, on its face, does not set Weddeke's moral character in too good a light, for she affirms: "At the time I brought these charges I was in despair and upset because my husband was drinking heavily, and when he was intoxicated he used to be rough and noisy in the house, so that in a fit of despair I was thinking how I could get him out of the house for a period of time."
In reference to the deportation proceedings, the petition alleges: "Suspension of deportation was denied him on the ground that his conviction as aforesaid is proof of his bad moral character." It is charged that the deportation proceedings were unfair, arbitrary, capricious and contrary to law, on various asserted grounds, but first and foremost because "relator never committed the crime of incest with his daughter, of which he had been charged."
We are clearly of the view that the order appealed from must be affirmed.
By regulation, the Attorney General has delegated to the Immigration and Naturalization Service his discretionary authority under 8 U.S.C.A. § 155(c) to suspend deportation. See Code of Federal Regulations, Cum.Supp.1943, Tit. 8, § 150. Hearing by a "presiding inspector" under the warrant of arrest is provided for in § 150.6 of the regulation. The inspector is to take evidence and make proposed findings as to the deportability of the alien upon the charge contained in the warrant of arrest. He is instructed to advise the alien of his right to apply for suspension of deportation under 8 U.S.C.A. § 155(c). If the alien makes application for this discretionary suspension, the inspector is to take evidence bearing on the alien's eligibility for such relief. Section 150.7 of the regulation provides that the presiding inspector shall state in numbered paragraphs his proposed findings of fact and conclusions of law as to the alien's eligibility for suspension of deportation. The inspector is also to draft a proposed order recommending deportation, or suspension of deportation, or cancellation of the deportation proceedings, in accordance with his findings on the basis of the evidence adduced at the hearing. Provision is made for further administrative review of the proposed findings and order of the inspector.
Since the regulations of the Attorney General have set up a quasi-judicial procedure for the determination of issues bearing on the propriety of exercising his power to suspend deportation under 8 U.S.C.A. § 155(c), we assume that the alien is entitled to procedural due process in the conduct of such hearing, and we assume further that, if the Immigration Service issues a warrant of deportation without according the alien such procedural due process, the warrant can be challenged on this ground in habeas corpus proceedings. We assume, also, that if the Immigration Service issues a warrant of deportation upon an erroneous ruling of law to the effect that in the circumstances of the particular case the Attorney General has no power to suspend deportation, such warrant of deportation may be challenged on this ground in habeas corpus proceedings. In other words, the Attorney General, in delegating to the Immigration Service the exercise of his discretionary power of suspension, has directed that this discretion be exercised by his delegate before a warrant of deportation is issued. If it be assumed that the power exists under the facts of a particular case, but that ...