STRENCH, District Director, v. PEDARIS, 55 F.2d 597

POLLOCK, District Judge. This is an appeal from an order entered in a habeas corpus proceeding discharging George Pedaris from the custody of W. R. Mansfield, District Director of the United States Immigration Service, and from imprisonment and restraint under a deportation warrant issued on October 26, 1927, by the Assistant Secretary of Labor. The questions presented are:

(1) Was there any substantial evidence before the District Director that Pedaris was an inmate of a house of prostitution; (2) did Pedaris have a fair trial before the District Director before the order of deportation was issued against him. If either of these questions be answered in the negative, the order of deportation should not have been made or be enforced, and the same are questions of law for decision by a court on an application by the alien, as was this ease in the court below. Whitfield v. Hanges (C. C. A.) 222 F. 745, 746.

The charge under which Pedaris was arrested and tried for deportation was this: That he has been found an inmate of a house of prostitution. The evidence established Frances Pedaris, his wife, practiced prostitution in a building owned by Pedaris and in a portion of which said building Pedaris conducted a coffee shop. Further, that Pedaris lived with his wife in this building as man and wife. There is no evidence found in the record that defendant acted as a pimp or in anywise aided his wife in any such practice, or that he in any manner profited from the practice of prostitution by his wife.

The statute under which Pedaris was arrested was the Act of February 20,1907, c. 1134, § 3, 34 Stat. 898, which before amendment read as follows: “Any alien woman or girl who shall be found an inmate of a house of prostitution or practicing prostitution, * * * within three years after she shall have entered the United States, shall be deemed to be unlawfully within the United States and shall be deported as provided by sections twenty and twenty-one of this Act.” .

As amended by Act of March 26, 1910, § 2, 36 Stat. 2;63, the Act reads, as follows: “Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practicing prostitution after such alien shall have entered the United States, * * * shall be deemed to be unlawfully within the United States,” etc.

The question presented to the trial court was whether under this act a man could bo held guilty of being an inmate of a house of prostitution as was the charge made against Pedaris in the warrant issued by the Assistant Secretary of Labor under which Pedaris was attempted to be deported. While it is apparent the act before amendment was limited fey its terms to members of the female sex, yet it is entirely plain it was so amended as to include members of the male sex if they inhabited a house of prostitution and took

part in the immoral practice carried on therein, or participated in the profit derived from the practice. As has been seen, the evidence in this ease fails to so show, and on 'this ground alone the judgment in the habeas corpus case appealed from would have to be affirmed. See Katz v. Commissioner of Immigration (Circuit Court of Appeals, Ninth Circuit) 245 F. 316; Backus v. Owe Sam Goon (C. C. A.) 235 F. 847; Backus, Commissioner of Immigration v. Katz (C. C. A.) 245 F. 326.

However, the further question whether Pedaris had a fair trial before the District Director of the Immigration Service is greatly to be doubted. The record shows before the hearing was entered upon the director who conducted the same, one Mr. Mansfield, informed Pedaris “this order will be the same as it was before,” meaning, as the former order from which Pedaris had been released on habeas corpus had been one of deportation, the same order would enter against him in this hearing about to be had, and it was so entered.

Now, while on that hearing all the forms of law prescribed may have been observed in this matter before the order of deportation was entered from which Pedaris seeks his release in this habeas corpus case, and on which the government has appealed, yet we are of the opinion a part of a fair trial resides in the fact that the trial judge, tribunal, or official charged by the law with the duty of hearing the matter, before granting an order of deportation, or any like order, must not before hearing have ■ prejudged the case, because one who has prejudged the ease cannot be fair and impartial if he so wishes, or grant a fair and impartial trial of the matter.

It follows, the writ was rightly granted and must be affirmed.