IN THE MATTER OF THE APPLICATION OF RYONOSUKE SAKABA FOR A WRIT OF HABEAS CORPUS.

October 8, 1913.

Aliens unlawfully in the United States-Habeas Corpus-Remedies before the inspector in charge: An alien under arrest for being unlawfully in the United States may not have the benefit of a writ of habeas corpus until he has exhausted his remedies before the inspector in charge.

Habeas corpus: Motion to dismiss petition and order to show cause.

Andrews & Quarles for petitioner.

C. C. Bitting, Assistant U. S. Attorney, for respondent.

DOLE, J. The applicant for the writ of habeas corpus is under detention as being an alien unlawfully in the country. He has had a private hearing before the immigration officers and was then entitled to a further hearing assisted by counsel; this, through his counsel, he has declined.

I have tried to consider as favorably as possible the petition for the writ. The defect in the petitioner's case is that he did not exhaust his remedies before the inspector in charge. This court has no means of knowing that the proceedings before the inspector were unfair. The counsel has had the advantage of discussing the matter with his client and hearing his client's statement. The court, however, has to take it for granted that the work of the officials of the government is bona fide and honest until the contrary is proved, and on a showing like this cannot presume that the petitioner did not have a fair hearing, that the interpreter was dishonest, and that the statement by the respondent of the examination before him is untrue. Although the petitioner was not told at that time that he had a right

to inspect the warrant and to a copy of all the proceedings that led up to the warrant, yet the proceedings were not finished; they were in mediis rebus, and it was to be expected that before the determination of such proceedings the petitioner and his counsel would have been informed, and would have been given an opportunity to inspect such papers, failing which, there would have been good reason for asking for a writ of habeas corpus on the ground of unfairness.

There is more liberality toward persons arrested in these proceedings, as regards their assistance by counsel, than there is in proceedings for the detention and deportation of persons desiring to land in the United States, where they are not allowed counsel who may take any part in the proceedings, and it is to be expected that with such opportunity, complaints of unfairness and illegality will be few, and based only upon definitely probable grounds.

To make a precedent that would favor a practice of applying for writs of habeas corpus before petitioners have exhausted their remedies before the immigration officers, would be embarrassing to the court, and productive of no benefit to applicants.

The motion to dismiss the petition and the order to show cause is allowed, with costs to the respondent.

IN THE MATTER OF THE APPLICATION OF CHING LUM FOR A WRIT OF HABEAS CORPUS.

IN THE MATTER OF THE APPLICATION OF WONG YUEN FOR A WRIT OF HABEAS CORPUS.

IN THE MATTER OF THE APPLICATION OF SUI JOY FOR A WRIT OF HABEAS CORPUS.

October 25, 1913.

1. Habeas corpus-Delay of writ until remedies below exhausted: On a petition for habeas corpus the court will not usually grant the writ, except under peculiar and urgent circumstances, until the petitioner has exhausted his remedies before the authority detaining him and on appeal therefrom.

2. Immigration acts-Detention of persons charged with violation thereof: Temporary detention of persons charged with offenses under the immigration acts, pending inquiry, is valid.

3. Arrest-Probable cause: Arrest of persons without probable cause, unauthorized.

4. Same-Grounds: Upon arrest of a person, he or his counsel should be informed of the grounds thereof.

Habeas corpus: Demurrer to petition.

Thompson, Wilder, Watson & Lymer for petitioners. C. C. Bitting, Assistant U. S. Attorney, for respondent. DOLE, J. The petitions in these cases claim that the persons in whose behalf the petitions are made are unlawfully restrained of their liberty and prevented from being at large by R. L. Halsey, inspector in charge of immigration; also that the said Halsey had stated that such persons were being held for investigation by the immigration authorities of the United States in and for the Territory of Hawaii; and further allege that such persons are not now and have "not been charged with the commission of any crime or offense against the laws of the United States relating to immigration."

[1] The precedents in habeas corpus cases in the United States courts, particularly in the Supreme Court, emphasize and reiterate the practice that although a Federal court with power to grant a writ of habeas corpus, may grant such writ and discharge the accused in advance of his trial under an indictment, it is not bound to exercise that power immediately upon the application being made for the writ, but may await the result of the trial, and in its discretion as the special circumstances of the case may require, put the petitioner to his writ of error from the highest court of the State. Ex parte Terry, 128 U. S. 289, 302.

In the case of Whitten v. Tomlinson, 160 U. S. 231, 242, and citing many cases in the Supreme Court, the court says:

"But, except in such peculiar and urgent cases previously mentioned the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the State; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court.'

The court has followed this practice and in the recent case of Ryonosuke Sakaba, ante, p. 372, dismissed the petition for a writ on the ground that the applicant had not exhausted the remedies before the immigration officers, and still more recently the court refused to make any order on the petition for the writ, because the usual proceedings before the immigration officers had not taken place. This practice is, I think, a reasonable one both for clients and the court. The exhausting of remedies below will tend to prevent cases from being brought which ought not to be brought, and to put the court in a position to hear petitions on the basis of a clear understanding.

[2] It is "clear that detention, or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the

inquiry into their true character and while arrangements were being made for their deportation."

Accused of what? This expression "those accused," in the above citation from Wong Wing v. United States, 163 U. S. 228, 235, implies that the person held in custody is accused of something. In other words, has been arrested, in the words of the Constitution, "upon probable cause."

For the purposes of this demurrer the allegations that the persons arrested are not now and have not been charged with the commission of any crime or offense against the United States relating to immigration, must be taken as true. It cannot be argued that they might have been arrested for some other offense not relating to immigration, inasmuch as a previous allegation which must also be admitted to be true, refers to the statement of the respondent that such persons were being held for "investigation by the immigration authorities of the United States in and for the Territory of Hawaii," thus limiting the possible grounds of arrest to offenses under the immigration laws.

IN THE MATTER OF THE APPLICATION OF CHING LUM FOR A WRIT OF HABEAS CORPUS. (ALSO, IN THE MATTERS OF WONG YUEN, SUI JOY, AND KIMI YAMAMOTO.

August 2, 1915.

An

1. Immigration-Deportation-Entering the United States: alien who came to the Hawaiian Islands previous to their annexation to the United States, and was living there at the time of such annexation cannot be said to "have entered the United States" within the