J. D. B. News Letter

Judge Charles C. Simons of the Sixth United States Circuit Court of Appeals has added a brief supplement to an alien deportation case which provided an important human touch to an immigration matter, suggesting a “quality of mercy” which may eventually permit a foreigner convicted for deportation to remain here.

The case is that of Harold Stott Jackson vs. John L. Zurbrick, district director of immigration at Detroit, and the decision was handed down in Cincinnati by Judge Charles H. Moorman of Louisville, Ky., with Judge Simons concurring. Jackson legally entered the United States from England in 1923. In 1928 he visited in Canada for a few hours, returning the same day. On Dec. 16, 1929, he was convicted of the crime of embezzlement committed in the previous January, and was sentenced to a term in the state prison. Upon the completion of his sentence in prison he was arrested by immigration authorities and ordered deported. His plea for a habeas corpus in the District Court was denied, and the affirmation of this judgment by the Circuit Court of Appeals was on an appeal from the order of denial.

The supplement to Judge Moorman’s decision written by Judge Simons suggests delay in the execution of the warrant of deportation because Jackson has already “paid the penalty imposed by law.” The supplement, containing a fine human touch and expressing a desire to aid the alien under conviction, reads:

“I see no escape from the decision of the court upon consideration of the authorities cited in its opinion. Some additional comment, however, seems not inappropriate. Ever since it was first held that a departure, however brief and temporary, and without regard to intention to relinquish domicile, makes subsequent return a new entry, courts in border districts have found it difficult to remain silent when the result in human misery of a literal reading of the act has been realized. To what has already been said, long experience as a District Judge compels the added observation that the opportunity for trickery and extortion afforded by the rule here applied is not the least of the misfortunes which attend its application.

“The Congress relaxed the rigors of the deportation provisions of the Act by providing that it shall not apply to one pardoned, nor if the court at the time of sentence, or within 30 days thereafter, recommends against deportation. Recommendation of this character was in the instant case made by the sentencing judge, but it is of no avail to the petitioner because not made within the time fixed by the Act, as indeed it seldom is in a-busy criminal court, whether State or Federal.

“The petitioner is a native and citizen of England who entered the United States legally on Aug. 1,1923, and has resided here continuously with his family, consisting of his father, mother, two brothers and two sisters. It is true that he has violated the law, but it is also true that he has paid the penalty imposed by law. While the record is silent on the subject, it may safely be inferred that the sentencing judge had not before him such facts as would warrant the conclusion that in addition to the statutory penalty the petitioner would be subject to the far more onerous burden of deportation. It seems to me, therefore, not inappropriate to recommend that before the warrant of deportation is executed opportunity be given the petitioner either to apply to the Secretary of Labor for an order demitting his temporary visit to Canada, or to apply to the Governor of the State for pardon.”