The opinion
WARD, Circuit Judge
(dissenting). Every alien not within the classes excluded by the act of 1907 has a right to enter this country and also has a right to the writ of habeas corpus to test whether his detention is lawful, hut not whether the finding of the administrative officers is erroneous in point of fact. It is the law of this district that there must be some evidence to support the finding of the board. Rosen v. Williams, 200 Fed. 538 , 118 C. C. A. 632 . 1 think it is also the law of the Supreme Court, because Mr. Justice Pitney said, as to an objection that there was no evidence to support the order made by the Board in Zakonaite v. Wolf, 226 U. S. 272, 274 , 33 Sup. Ct. 31, 32 ( 57 L. Ed. 218 ):
“As to the first point, an examination of the evidence upon which the order of deportation was based convinces us that it was adequate to support the Secretary’s conclusion of fact. That being so, and the appellant having had a fair hearing, the finding is not subject to review by the courts.”
The aliens were all young and healthy, were provided with transportation to Portland, Or., each having at least $25 cash and fellow countrymen at the point of destination. The ground upon which the hoard excluded them was because it was inclined to believe from reports of industrial conditions in Portland that they would not obtain employment at this season. The board does not state whether the reports were oral or written, when they were made, who made them, whether the person or persons making them were qualified to express an opinion, or finally, what the reports were.
Section 25 of the act of 1907 provides, inter alia:
“All hearings before boards shall be separate and apart from the public, but the said boards shall keep a complete, permanent record of their proceedings and of all such testimony as may be produced before them.”
*576 Then it goes on to provide an appeal for the alien to the Secretary of Tabor, which shall stay proceedings—
“until the receipt hy the Commissioner of Immigration at the port of arrival of such decision which shall be rendered solely upon the evidence adduced before the board of special inquiry.”
Unless the alien gets this review from the Secretary, he has not had a fair hearing; but how could the Secretary possibly review this opinion of the board, when he was absolutely without any evidence as to what the opinion depended upon? Of course, the reports in question need not be proved in accordance with legal rules; but they should at least be so stated that the Secretary can review them. The case of Tang Tun v. Edsell, 223 U. S. 673 , 32 Sup. Ct. 359, 56 L. Ed. 606 , shows how merely hearsay evidence was obtained and included in the record.
I think there was no evidence whatever to support the order, and that the aliens should be discharged.