Backus

(dissenting). I dissent on two grounds.

First. The provisions of the statute were substantially complied with. The application for the warrant of arrest was made on April 2, 1913. Nine lays later it was granted, but by the Secretary’s order, which accompanied it, it was not to be executed “unless your investigation develops facts justifying such action.” This instruction was obeyed, and the appellant was not arrested until October 17, 1913, and after evidence was furnished in the sworn statements of four witnesses which fully justified the arrest. “Irregularities in the order of arrest do not affect the status of an alien held upon a warrant of deportation after a fair hearing.” United States v. Uhl, 211 Fed. 628 , 128 C. C. A. 560 ; United States v. Williams, 200 Fed. 538 , 118 C. C. A. 632 . In Healy v. Backus, 221 Fed. 358 , 137 C. C. A. 166 , answering the’contention that there was a fatal variance between the application and the warrant of arrest, this court said:

And in Ex parte Hamaguchi (C. C.) 161 Fed. 185 , Judge Wolverton said:

So in Siniscalchi v. Thomas, 195 Fed. 701 , 115 C. C. A. 501 , it was held that the fact that a warrant of deportation of an alien was based…

This is an appeal from an order discharging a writ of habeas corpus in behalf of the female appellant, Mrs. Low Kwai, alias Ho Shee, and remanding her to custody for deportation.

It appears from the record that she was admitted into this country as tiie wife of the appellant Low Kwai, who, it appears, was a native of this country. Subsequently she was arrested by an immigration officer on the ground that she was practicing prostitution, and *482 after various proceedings set forth in the record, resulting in the finding that' she was such prostitute and never was the wife of Low Kwai, was ordered’deported.

If the immigration officer was legally authorized to proceéd against the woman, we would not have'the slightest difficulty in affirming the order; but was he so authorized ? is tire real, and the very important, question in the case. We say important, because if, after due examination, an alien is admitted into this country, an immigration officer can, without legal warrant and of his own motion, arrest such alien upon the gfound that he or she is engaged in a business denounced by the law, and thus initiate proceedings that may result in an order 'for the deportation of such…