Garcia v. Landon, District Director of Immigration and Naturalization, 207 F.2d 693 (9th Cir. 1953)

Appellant, Carlos Alvarez Garcia, also known as Carlos Garcia-Alvarez, a Mexican alien, was lawfully admitted to the United States for permanent residence on June 15, 1922. Appellant has resided in the United States continuously since June 15, 1922, except for visits to Mexico between June 15, 1922, and May 15, 1949. After each such visit, appellant returned to and entered the United States. He last entered the United States on May 15, 1949.

On August 12, 1952, a warrant for appellant's arrest was issued by appellee, H. R. Landon, a district director of Immigration and Naturalization. That warrant stated, in substance, that, from evidence submitted to appellee, it appeared that appellant was deportable under the Act of October 16, 1918, as amended,¹  because, prior to May 15, 1949, he was a member of the Communist Party of the United States.²  Under that warrant, appellant was arrested at Los Angeles, California, on August 13, 1952. A hearing was had at Los Angeles on August 18, 1952.³  On August 20, 1952, the hearing officer (Wade H. Westmoreland) rendered a decision to the effect that appellant was deportable under the Act of October 16, 1918, as amended, because prior to May 15, 1949, he was a member of the Communist Party of the United States.⁴  Appellant appealed from that decision, but the Board of Immigration Appeals dismissed that appeal on October 23, 1952. Accordingly, on October 29, 1952, the Attorney General, by Albert Del Guercio, an acting district director of Immigration and Naturalization, issued a warrant commanding the district enforcement officer at Los Angeles or any officer or employee of the Immigration and Naturalization Service to deport appellant to Mexico. Under that warrant, appellant has been detained in custody of an officer or officers of the Immigration and Naturalization Service at Los Angeles since October 29, 1952.

On December 1, 1952, appellant petitioned the United States District Court for the Southern District of California for a writ of habeas corpus. Thereupon, on December 1, 1952, the District Court issued an order requiring appellee to show cause why a writ of habeas corpus should not be granted. Appellee filed a return,⁵  appellant filed a traverse, and the District Court entered a judgment discharging the order and denying the petition. This appeal is from that judgment.

Appellant contends that the Act of October 16, 1918, as amended, was unconstitutional; that the evidence received at the hearing on August 18, 1952, was "insufficient to sustain the deportation charge;" that appellant "was not given a fair and impartial hearing;" that the hearing on August 18, 1952, "was not legally conducted;" that "the procedure required by law was not followed;" and that evidence not disclosed to appellant or his counsel was considered by the hearing officer in arriving at his decision, "thus rendering the hearing unfair."

There is no merit in any of these contentions. The Act of October 16, 1918, as amended, was constitutional.⁶  The return and exhibits attached thereto⁷  showed that the hearing officer's decision was amply supported by evidence, including appellant's own testimony;⁸  that appellant had a fair and impartial hearing on August 18, 1952; that that hearing was legally conducted; that the procedure required by law was followed; and that the hearing officer's decision was based on evidence received in the presence of, and fully disclosed to, appellant and his counsel. Nothing to the contrary was alleged in the petition or in the traverse.

The petition stated that appellant's detention was unlawful, but that was a mere statement of a legal conclusion. Neither the petition nor the traverse stated any fact or facts warranting that conclusion or entitling appellant to a writ of habeas corpus.

Judgment affirmed.