Wong Wey v. Johnson , 23 F.2d 326 ( 1927 )

JOHNSON, Circuit Judge.

The appellant has filed a petition for rehearing in the above case, alleging that the court erred in its statement of facts shown by the record.

The petition alleges “that the District Judge ordered a writ of habeas corpus to issue after a full hearing had been held before him on the question of the unfairness of the proceedings before the immigration authorities.”

The record does not disclose that there was a full hearing before the District Judge upon the presentation of the petition. It does disclose that the petition was allowed upon the same day that it was presented and the writ ordered to issue in accordance with Revised Statutes, § 755 (Comp. St. 1916, § 1283; 28 USCA § 455), which is as follows :

“The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained.”

Upon the presentation of the petition it was the duty of the District Court to determine whether the allegations in the petition were such as to justify the exercise of federal authority. Upon return of the writ the first question to be determined by the court was whether the petitioner had been accorded a fair hearing by the immigration authorities, and until this had been determined there could be no hearing upon the merits.

It is evident from the record that the District Judge decided that the petitioner had had a fair hearing, and that therefore ho could not proceed to hear the ease upon its merits, and committed no error in refusing to hear the testimony offered by the petitioner.

The petition is denied.