Tod v. Waldman, 266 U.S. 113 (1924)

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 reexamination 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 reexamined. 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 were 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 seventeen months spent in securing a passport to this country came here as a refugee, that, if she is p. 115deported 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 their 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, 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 p. 116unanimously reaffirmed the former order of exclusion. The return concludes:

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 the statute. Without stressing these defects, the court, pointing out that by § 17 of the Immigration Act of February 5, 1917, c. 29, 39 Stat. 874, 887, .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 shall be “of the same nature and be 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 p. 117113 Argument for Petitioner.

Wq think that the complaint of the Government is well founded. The petitioners in the writ of habeas corpus were aliens who had not been legally admitted to the country—that is, neither the immigration authorities nor the court had held that they were entitled to admission. The immigration authorities had ordered their deportation. The Circuit Court of Appeals merely found that in the course of the examination by the immigration authorities the relators had not been given a fair opportunity to appeal to the Secretary of Labor as provided by the statute. This denial of appeal did not give to them a right to admission to the country. In the due and orderly disposition of the Writ of habeas corpus, relators should not have been discharged and their bail released, but the order should have been framed so as to secure the benefit of the appeal to the relators, to which the court by its decision had held them entitled. To discharge them was to take them out of the proper custody of the government authorities pending their admission or exclusion, was to entail upon the Government the affirmative and initial duty of re-arresting them and was improperly discharging the security for their response to any lawful order of the immigration authorities. The mere fact that by re-arrest the Government would not be confronted by any judgment of res judicata did not suffice. The power of the court in such a case is indicated by § 761 of the Revised Statutes in reference to habeas corpus. The section provides that a court or justice or judge shall proceed in a summary manner to determine the facts of the case by hearing the testimony and arguments and thereupon to dispose of the party as law and justice require. The law and justice here required under the decision of the Circuit Court of Appeals was that the p. 119case should be sent to the District Court with instructions to remand the petitioners to the custody of the immigration authorities, to await the result of the appeal from the judgment of deportation to the Secretary of Labor.

We concur with the Circuit Court of Appeals in its criticism of the record in this case in that it does not set out more fully the details of the test applied in the examinations. The record is defective also in not showing the definite rulings of the Commissioner or the Board of Inquiry on the issues made by Mrs. Waldman in her p. 120evidence. This made clear her claim that she and her children were refugees from religious persecution relieving her from an educational test; but no finding appears in the record on this point either by the Board or the Department on appeal. The mere implication that the claim must have been passed on adversely to her because the language test was applied is not enough. If the necessary finding was in fact made, it should be made part of the record. We agree with the Circuit Court of Appeals also that the absence from the record of any finding by the Department on appeal as to the issue whether the lameness of Zenia, one of the children, affected her ability to earn a living or made her likely to become a public charge, is a defect. The inquiry and finding should have been made. If made, the record should disclose it. If not made, the inquiry should be made and the finding recorded.

We see no reason, therefore, why upon the appeal which it is now decided the Secretary of Labor must afford the relators, he should not consider and make a definite finding on the issues made by the petition, to wit, first, whether the relators are not relieved from the test as to language because they are refugees from religious persecution; second, whether, if it be necessary, a proper test as to the reading knowledge of Yiddish only, which Mrs. Waldman had, was sufficient to meet the requirements of the statute, and, if not, to order another; and, third, whether the lameness of Zenia Waldman is likely to affect her ability to earn her living or to make her a public charge. The order of the Circuit Court of Appeals is reversed and modified in accordance with this opinion, with instructions to remand the petitioners to the custody of the immigration authorities to await the hearing on the appeal before the Secretary of Labor. Failing the granting and hearing of the appeal within thirty days after the coming down of the mandate herein, the p. 121relators and their bail are to be discharged. Mahler n . Eby, 264 U. S. 32, 46.

Held, that the duty of the Secretary of the Treasury in paying such certificates is ministerial; and that, where the claimant named in a certificate held as trustee ex mcdeficio for another whose equity the Secretary of State had remitted to the courts, the Supreme p. 122decree of the Supreme Court of the District directing payment of a fund to a receiver and granting an injunction against other disposition of it.

“ The awards are distributed among the original claimants showing themselves entitled thereto, or to the heirs, representatives, devisees, or legal assignees of such claimants. On occasion the Department also makes payments to such other persons in such amounts as the parties above indicated, being determined, shall agree and direct. Except as to such claimants claiming to share in the award as claimants, or their heirs, devisees, representatives, or legal assignees claiming to share in the award by p. 124reason of such relationship to such claimants, all parties who allege claims against the fund itself, as also all creditors of such claimants, or of their heirs, devisees, representatives, or legal assignees, are in accordance with the uniform rule and practice of the Department remitted to the courts for the enforcement of the rights of which they consider themselves possessed, or to private agreement with the parties in interest,—as they may be advised.”

The Orinoco Iron Company then filed this bill in the Supreme Court of the District of Columbia to restrain the Secretary of the Treasury and the Treasurer of the United States from paying the fund still remaining in the Treasury to the Limited Company and its receiver, LeCrone, in accordance with the certificate of the Secretary of State, and asked that a receiver be appointed to receive the fund while the right of the complainant to appropriate the fund to its claim should be litigated. The Limited Company and its receiver were made parties, and the issue between the complainant and the Limited Company, with respect to this fund, was heard and decided in favor of the complainant and present appellee. Both the Supreme Court of the District and the Court of Appeals found that at least $175,000 of the $385,000 of the award was based upon the contributions which the Orinoco Iron Company had made in execution of its contract to work the iron mines of the concession, and that the Limited Company in ignoring and denying all rights of the Orinoco Iron Company to share in the fund had been guilty of fraud in appropriating that which was the equitable interest of the Orinoco Iron Company. Accordingly the injunction was made permanent, a p. 125receiver was appointed, and the Secretary of the Treasury was directed to pay the $56,250 to that receiver, who was authorized to execute a full acquittance of the United States as from the parties to the suit.

In Houston v. Ormes, 252 U. S. 469, Congress had appropriated $1,200 to pay a claim found by the Court of Claims to be due to one Susan Sanders. This was a suit, brought by one who claimed an equitable lien for attorney’s fees upon the amount thus appropriated, to enjoin the Secretary of the Treasury and the Treasurer of the United States from paying the amount due on that lien to the person named in the appropriation, and to require them to pay the sum claimed to a receiver in the p. 126suit pending the hearing and to accept the receipt of the receiver as in full acquittance of the Government from the parties to the suit for the amount paid him. The Court in that case said, p. 473:

It seems to us that the present case can not be distinguished from the one cited. It is conceded by the Government that the duty of the Secretary of the Treasury is ministerial and is to pay the amount ordered distributed by the Secretary of State to the persons named in his certificate. Certainly the action of the Secretary of the Treasury, in obedience to an appropriation by Congress, is neither more nor less of a ministerial duty than the obligation of the Secretary of the Treasury in the case at bar to act in compliance with the direction of p. 127121 Argument for Plaintiff in Error.