United States v. James P. Sanderson

237 F.2d 398 UNITED STATES of America, Appellant, v. James P. SANDERSON, Appellee. No. 15050. United States Court of Appeals Ninth Circuit. October 3, 1956. George C. Doub, Asst. Atty. Gen., Paul A. Sweeney, Richard M. Markus, John G. Laughlin, Sp. Assts. to Atty. Gen., Charles P. Moriarty, U. S. Atty., Richard F. Broz, Asst. U. S. Atty., Seattle, Wash., for appellant. Myron L. Borawick, Wayne R. Parker, Midway, Wash., for appellee. Before HEALY, ORR and FEE, Circuit Judges. ORR, Circuit Judge. 1 One Eng Kam arrived in the United States in 1948. He claimed admission as a son of a veteran of the United States armed forces under provisions of the Immigration Act then in force. 1 He was given a hearing before the local Board of Special Inquiry of the Immigration and Naturalization Service and on October 26, 1948, the said Board found that he had not sustained his burden of proving the alleged relationship, and rejected his application for admission. From the ruling an administrative appeal was taken. 2 Appellee Sanderson, Eng Kam's attorney, secured his release from custody pending the final disposal of the case by giving a proper bond in accordance with Section 20 of the Immigration…

One Eng Kam arrived in the United States in 1948. He claimed admission as a son of a veteran of the United States armed forces under provisions of the Immigration Act then in force. 1 He was given a hearing before the local Board of Special Inquiry of the Immigration and Naturalization Service and on October 26, 1948, the said Board found that he had not sustained his burden of proving the alleged relationship, and rejected his application for admission. From the ruling an administrative appeal was taken.

Appellee Sanderson, Eng Kam’s attorney, secured his release from custody pending the final disposal of the case by giving a proper bond in accordance with Section 20 of the Immigration Act of 1917. 2 Said bond was conditioned in part as follows:

The bond further provided:

Thereafter the appeal of Eng Kam to the Commissioner of Immigration and Naturalization was unsuccessful, as was an appeal made by him to the Board of Immigration Appeals from the decision of the Commissioner. The administrative process having been exhausted, the District Director of Immigration and Naturalization on October 19,1950, made a demand on obligor Sanderson to produce Eng Kam on November 15, 1950,…

(dissenting).

This is not the ordinary case, and the result reached by my brothers in treating it as though it were such serves, not to accomplish justice, but rather to perpetuate an injustice. The government itself admits that the warrant of deportation arose out of an unfair hearing. (As stated by the majority, after a fair hearing was had the Board of Immigration Appeals, reversing both the Board of Special Inquiry and itself, held Eng entitled to remain here.) Yet the government now contends, and my brothers hold, that the bond posted to guarantee Eng’s surrender “in case he is found to be unlawfuly within the United States” was properly forfeited notwithstanding such a finding was unlawfuly made.

The majority opinion states that “The question of liability of the bondsman must be determined by the condition existing at the time of the alleged forfeiture.” What was that condition? The Board of Special Inquiry after a hearing had authority to determine whether Eng might be admitted to the United States, 39 Stat. 874 , 887. Lack of a fair hearing vitiated its order of deportation, Chin Yow v. United States, 208 U.S. 8 ., 28 S.Ct. 201 , 52 L.Ed. 369 , Estep v. United States,…