GREENWOOD et al. v. FRICK, Immigrant Inspector, et al., 233 F. 629

DENISON, Circuit Judge (after stating the facts as above). 1. The son has always been properly supported by his parents; but if his mother is deported, there is sufficient uncertainty of continuing support by the father alone to justify the finding that the son was, at •his entry, likely to become a public charge. It follows that his right to remain in this country must depend upon his mother’s similar right; if she is deported, he should be. -2. There is nothing whatever to support finding (a). It is not suggested, in the evidence, that she has ever been convicted of any offense.

The finding that she has admitted committing an offense involving moral turpitude can refer to nothing except to her relations with Greenwood. Instead of admitting an offense, she has constantly insisted that, when she entered into the .common-law marriage with Greenwood, Griffin had disappeared, and had been gone for more than 2 years, and that she believed he was dead. Her belief has now been confirmed by the lapse of 11 years, during which she has not been able to learn of Griffin’s existence.

Tacking proof that the first husband was living at the time of the marriage to the second, it cannot be said that she was guilty of bigamy; nor, in the presence of her belief that Griffin was dead, can it be said that her conduct involved moral turpitude. Support for the deportation must be found elsewhere than in ground (a). ' ' 3. There is nothing to support the finding that she was directly liable to become a public charge. For some time before her departure in April, 1914, she had successfully supported herself in this country. There was no reason to suspect that she could not continue to do so.

After her re-entry, she had no difficulty in finding remunerative work. The conclusion that she was likely to become a public charge is merely arbitrary — unless her entry was for an immoral purpose, thereby making her subject to possible prosecution and imprisonment at public expense or naturally tending to a life not supported by honest work, in either of which events there would be a basis for concluding that she was likely to become a public charge. Tam Fung Yen v. Frick, 233 Fed. 393, - C. C. A. - (C. C. A. 6, June 16, 1916).

It follows that if her entry was of this character, the proofs did tend to support charge (c); otherwise, not; and so charge (

c) merges in charge (b). 4. It was clearly the substantial theory of the deportation proceedings upon charge (

b) that since she was not the lawful wife of Greenwood and since she had been allowed to enter for the purpose of living with him as his wife, her entry was for an immoral purpose. The proofs taken at Detroit were directed (except as hereafter stated) to this issue, and we think this is the substantial ground upon which the Secretary of Labor was intending to act when he ordered deportation. As we have seen that there was no evidence even tending to show that she was not Greenwood’s lawful wife, but that the tendency of all the evidence is to the contrary, charge (

b) is without support and the deportation cannot rest upon it--except upon the one theory now to he considered and which presents, to our minds, the only close question in the case. The May New York proofs probably had enough tendency to indicate an entry for the purpose of immoral relations with Cuthbert to furnish legal support for an order by the Secretary to deport her upon that ground. The proofs at Detroit, considered separately, had no such tendency (re Cuthbert).

The order of admission made in May, although necessarily involving tlie finding that she' was not entering for this purpose, was not such an adjudication as to bar the Secretary’s subsequent inconsistent action (Pearson v. Williams, 202 U. S. 281, 26 Sup. Ct. 608, 50 L. Ed. 1029); and the Secretary had the lawful right to base his deportatiou order of October upon the charges re Cuthbert, as disclosed in the New York testimony of May, provided the New York testimony was properly brought into the deportation proceedings. The decisive questions, therefore, are two, and the answer to each bears upon the oilier:

(1) Did the Secretary really intend this finding (

b) to rest upon the Cuthbert affair?

(2) If so, did the New York testimony so far come into the record in the deportation case as to justify the Secretary in acting thereon? We have already indicated what we think the right answer to the first question. The deportation warrant and order made no reference to the May proceedings; they made no identifiable reference to the Cuthbert matter; of course, charge (

b) and finding (

b) must refer to something, but this reference is sufficiently satisfied by petitioner’s relations to Greenwood; the reasonable inference from the whole record is that the immigration officials had learned that she had not been frank with them regarding her marriage to Greenwood, and that this marriage was not regular and that they proposed to deport her upon that ground and for that reason. They charged this ground directly as the first accusation, charge (a); and charges (

b) and (

c) were incidental thereto. The Secretary of Labor had considered the Cuthbert affair in May; he had thought it not sufficient to justify exclusion; nothing had intervened tending to persuade him to change his mind; and we think it strongly to he presumed that he did not intend, in October, to order Mrs. Greenwood deported for the same reason and upon the same proofs which in May he had held insufficient to exclude her. We could be satisfied to find such an intent by the Secretary only if the record made that intent necessary to support his finding; but, as we have seen, upon his theory of the Greenwood matter his finding (

b) was amply supported otherwise. In addition to this natural inference, we find that the warrant of deportation is expressly declared to rest upon “proofs submitted to me after due hearing * * * held at Detroit.” ■ While this language does not necessarily exclude the existence of other supporting proofs, it seems to do so.

That there had been any other hearing except at Detroit would not be supposed by the reader of this warrant; but, if there is ambiguity in the warrant, there is none in the government’s answer, by Inspector Prick, which again declares that the finding of the Secretary was made “upon the aforesaid evidence” (that taken at Detroit); and the answer of the inspector summarizes and concludes by again stating that the process upon which petitioners are detained “is based upon hearing in said cause.” This must mean the same hearing before referred to, the only one mentioned, and the only hearing there had been “in said cause,” viz., in the deportation proceedings.

As to the second question: The New York testimony was in fact never offered in evidence in the deportation proceeding; Mrs.

Greenwood never was notified that it was to be used against her or that it was to become a part of the deportation record; and, obviously, unless she was chargeable with notice that it was to be used against her, it formed no part of the “hearing.” The atmosphere of the case lends support to the idea that the new proceeding was intended by everybody to be distinct; the old proceeding was ended; it was not charged that she had proctired her entry by fraud, nor was she otherwise notified that it was proposed to review or reverse the former finding upon the old record.

So far as Cuthbert 'was concerned, no new facts had come to light; and there apparently was no reason why the government should wish, or why she should suppose that the government wished, to review or change its conclusion that the Cuthbert affair did not call for her exclusion.

She knew that the case made against her on admission upon this ground had been held insufficient; she knew that the proof for deportation after admission ought to be stronger than the proof for' nonadmission; she knew that there was no direct reason why the government should change its position about the Cuthbert affair; and she knew, after the proofs were closed, that the government had made no claim that its conclusion re Cuthbert had been erroneous.. On the other hand, it had been newly discovered that the existence of any valid marriage to Greenwood was challenged.

This subject-matter was brought new into the warrant, the Detroit testimony was directed mainly to this new subject, and we think she and her counsel were justified in regarding it and its appurtenant (

b) and (

c) as presenting the only issue made by the record. There is a possible inference that the new warrant intended to renew the charge re Cuthbert, from the fact that she is named therein as “alias Cuthbert”; but this inference is remote and is not clear enough to justify disregarding the natural theory of the whole situation. This reference to her is meaningless, unless for an implication wholly unjustified.

If it should be taken as implying a charge that she had assumed Cuthbert’s name — which would amount to having lived openly as Cuthbert’s mistress — it was a charge which could have been suggested only through reckless indifference.

Against the conclusions that the deportation warrant was not intended to rest on the old charge and proofs in re Cuthbert, and that the old proofs were not considered as being in the deportation record, are three things: First, that at the Detroit examination she was asked if her former testimony was true; second, that she put the old testimony into the habeas corpus record; and, third, that in the new testimony she was asked questions concerning Cuthbert. As to the first: Her former testimony related also to her relations with Greenwood— the precise subject of the new charge.

It was therefore natural to ask her if her former testimony was true; but the questions developed nothing; her old testimony neither adds to nor detracts from her new testimony re Greenwood. As to the second: The reason why she did this is not apparent; perhaps counsel thought it might be necessary.

So doing in the habeas corpus proceeding is not inconsistent with the idea that they were trying in the deportation proceeding only the new charge, since the old testimony related to that also; but the more natural thought is that counsel took this course without any deliberate thought or purpose, or out of abundant caution. Their statement in the amended petition that the copies attached constitute “all the testimony * * * upon which the order for deportation is based” should not fairly be held to mean more than they comprised everything upon which it could be claimed that the order was based.

As to the third: The questions asked at Detroit re Cuthbert did not bring out anything even giving a different color to that matter; and so would not naturally lead to a belief that there was any thought of revising the decision re Cuthbert. Upon the whole, we conclude that the New York proofs were neither properly brought into the deportation hearing, nor did the Secretary intend to rely upon them, and that the order cannot stand on the Cuthbert charge. Other objections to the order do not require notice.

The order of the District Court is reversed, without costs, and the case remanded, with instructions that petitioners be discharged from custody. The government asks for no further hearing before the Secretary. Note. — See Vreeland v. Vreeland, 78 N. J. Eq. 256, 79 Atl. 336, reviewing Englisli cases; and see also cases cited in note in 34 L. R. A. (N. S.) 940.

It seems well established that the presumption of the legality of a marriage and the legitimacy of children merges and destroys the presumption that a former spouse had continued alive; and that the second marriage was not ceremonial would not seem to affect the reason of the rule. At any rate, in 1910, a presumption of law had arisen that Griffin was dead. ®=>For other cases see same topic & KEY-NUMBEH in all Key-Numbered Digests & Indexes <§s»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes