CLARY, District Judge.
Relator Manuel Castro-Louzan, presently in the custody of Karl I. Zimmerman, District Director of Immigration and Naturalization, on a warrant of deportation, has sued out a writ of habeas corpus challenging the validity of his detention under that warrant. A proper consideration of the case requires a rather extended discussion of the facts.
Manuel Castro-Louzan is a seaman who has followed that calling for many years. He is a native born citizen of Spain. From time to time as his vessel touched American ports he has been admitted to the country as a bona-fide seaman. In the course of one of his voyages, he entered the port of San Pedro, California, on the 24th day of July, 1950. On July 29th, 1950, he was examined at that port by an Examining Officer of the Immigration and Naturalization Service and was admitted, pursuant to Section 3(5) of the Immigration Act of 1924, 8 U.S.C.A. § 203(5), for the period of time the vessel was to remain in the United States and in no event for longer than 29 days. Significantly, the record of his admission indicates that on that very day he was discharged from the vessel. The vessel left the following day for Japan. Relator testified that not only was the fact that he was being discharged made known to the Examining Officer but further that he was informed that his stay in the United States should not exceed 29 days. The record of the Officer in Charge, Immigration and Naturalization Service, at that port, San Pedro, California, fails to reveal that the Relator's period of admission into the United States was extended. There is no doubt in my mind that Relator intended no violation of the Immigration Laws of the United States and that he was of the distinct impression that he was properly and legally in the United States. He immediately left for New York to ship out on another vessel of the same line. A letter in the record indicates that there was and is a position as seaman open to him on one of its ships.
About one year previously, Relator together with one Nemesio Vasquez had purchased a residential property in Philadelphia, each owning one-half of said property. Nemesio Vasquez, up until the present occurrence a friend of the Relator, had transacted business for the Relator. On one occasion Relator had given him $700.00 to deposit in a bank account which Relator maintained in a Philadelphia bank. Mr. and Mrs. Vasquez were the only friends of Relator in Philadelphia. As stated above, Relator was a citizen of Spain, spoke only the Spanish language, and was entirely unfamiliar with the English language. On his way to New York and to his outgoing vessel, he stopped off in Philadelphia to check on his business affairs. Nemesio Vasquez took him to a person whom Relator testified was a "lawyer", but whom counsel for Relator in this proceeding assures the Court was not a lawyer, and a paper was drawn up which Relator testified fraudulently deprived him of his one-half ownership in the residential property without any compensation to him. On that evening, August 4, 1950, a violent quarrel arose in the Vasquez household. The testimony is not entirely clear as to the cause of the quarrel. There was
Word of his detention having come to the Office of the Immigration authorities, a representative of that Service interviewed him at the prison and, with a guard acting as an interpreter, a statement was taken from the Relator in which he set out fully and completely the facts of his arrival and presence in the United States. In that statement which was presented in Court and from which the representative testified, there was no mention made of the Clinton Hotel or any reference to Relator's visit to the Clinton Hotel, its reason or purpose. On August 7, 1950, an Immigration warrant of arrest was issued charging Relator with being in the United States in violation of the Immigration Act of May 26, 1924, 8 U.S.C.A. § 201 et seq., in that he had remained in the United States longer than permitted under said Act or Regulations made thereunder. On August 9, 1950, in Moyamensing Prison and with an interpreter provided by the Immigration Service present, a hearing was held. Asked by the Hearing Examiner whether he desired counsel, Relator said very emphatically that he did desire counsel, and he was given 48 hours to produce his own counsel at his own expense. The only assistance accorded him was permission to use the telephone. In 48 hours the hearing resumed and Relator was still without counsel. This is perfectly understandable in view of the fact that the only people he knew in Philadelphia were Mr. and Mrs. Vasquez, who were the real reason for his incarceration. Friendless and almost penniless and in a strange land, the Relator was asked on August 11th whether he would go on without counsel and he agreed to do so. He was thereupon sworn and the Hearing Officer first read to him the pertinent sections of Title 18 U.S.C.A. § 1621, relating to perjury, and that part of the Immigration Act of March 4, 1929, 8 U.S.C.A. § 180 et seq., relating to the penalties provided for any person deported from the United States who attempts to reenter it. He was then examined by the Examining Officer and the Hearing Officer regarding his presence in the United States and all the facts of his entry and presence in the United States were fully and freely admitted by him. Upon examination by the Examining Officer, he averred the fraudulent taking of his real estate without compensation and admitted the fact of his visit to the Clinton Hotel. No inquiry was made as to the facts surrounding the charge of assault and battery on which he was being held, nor did the Examining Officer develop any facts relating to the bank account. When the Hearing Examiner asked him whether he had any evidence which he would like to have incorporated into the record, his answer was "What can I say?". Advised that he had the right to ask to depart voluntarily at his own expense, he requested that right, since he knew his employer had a position as seaman open to him. This fact is confirmed by a subsequent letter of his employer placed in evidence. The Hearing Examiner then
Early in October, Relator finally secured counsel, who promptly asked for a rehearing, which was denied. He then sued out this writ.
The fundamental question involved in this case is whether this Relator has been deprived of due process of law in violation of the Fifth Amendment to the Constitution of the United States. Due process requires a full and fair hearing even before an administrative tribunal. While it is well settled that the United States has plenary power to provide that aliens shall be deported on terms and conditions of its own choice, deportation without a fair hearing or on charges not supported by any evidence constitutes the denial of due process which may be prevented by habeas corpus. U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; Nicoli v. Briggs, 10 Cir., 83 F.2d 375. Strict adherence to judicial procedure is not required in a hearing in a deportation proceeding but where in a hearing there is some practice which contributes to a denial of justice or any other essential element of due process, then such action may be challenged by habeas corpus. Bufalino v. Irvine, 10 Cir., 103 F.2d 830. It was also stated in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, that where evidence is improperly received and where but for that evidence it is wholly speculative whether the requisite finding would have been made, there is then a deportation without a fair hearing which may be corrected on habeas corpus.
The record of the hearings of the Immigration and Naturalization Service which are incorporated in full in the Government's return to the writ indicate on the surface that the formalities of a fair hearing were observed in that Relator was advised that he had a right to counsel. The substance of a fair and intelligent hearing, intelligent in the sense that the prisoner had knowledge of his rights and that his rights were being protected was entirely lacking. Informing a prisoner with total resources of $30.00, a stranger in a strange land with a complete lack of knowledge of the language of that country, that he had a right to counsel is almost an empty gesture. Under the Rules of the Immigration and Naturalization Service, as testified at the hearing, representatives of that Service are forbidden in anywise to assist prisoners in obtaining counsel. This explanation was given to me as the reason for their total lack of action in that regard. Since, however, there are presently in Philadelphia the Legal Aid Society to assist the indigent and the Reference Agency of the Philadelphia Bar Association to assist those who need the assistance of counsel and do not know any particular lawyer, this explanation does not appeal to me. The end result of Relator's position was that he was virtually incommunicado despite permission granted to use the telephone.
In a matter involving a person's liberty, it is my opinion that we must look to the substance rather than the form. I am not undertaking to hold that a person
Since the finding of the Immigration and Naturalization Service of a failure to establish good moral character for a period of five years was based solely upon an untried charge and at the hearing Relator had stated a full and complete defense (if believed), I feel that there was a duty upon that Service to inquire into the facts attending the bringing of the charge or await the trial of that charge before concluding that good moral character had not been established. Particularly is this so since the charge was subsequently nolle prossed.
I do not mean to indicate by what I have said that I am attempting to usurp or interfere with the exercise of a discretion which lies solely with the Attorney General or those to whom he has delegated that discretion. Under the provisions of 8 U.S.C.A. § 155, the Attorney General is given the sole discretion to permit voluntary departure in lieu of deportation in certain enumerated situations. That problem is not before me. The basis for my holding is that the administrative tribunal has denied the Relator due process of law in violation of the Fifth Amendment to the Constitution of the United States in that he was not accorded a "full and fair hearing". Any action, therefore, based on such a hearing is a nullity.