Certificate to the Supreme Court of the United States of questions of law upon which the Circuit Court of appeals for the Ninth Circuit desires instruction for the proper decision of a cause

Title, etc.

CERTIFICATE TO THE SUPREME COURT OF THE UNITED STATES OF QUESTIONS OF LAW UPON WHICH

THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT DESIRES INSTRUCTION FOR THE PROPER

DECISION OF A CAUSE.

TO THE HONORABLE THE CHIEF JUSTICE AND THE JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES ;

Mitsuey Endo, an American woman citizen of Japanese descent, of twenty-two years

of age, has appealed from an order of the district court denying her petition for a

writ of habeas corpus and for a hearing upon her claimed right to release from further

restraint by the War Relocation Authority. Because of the importance of the case, the

requirement for its summary disposition which may lead to a certification of the entire

case, and the brevity of the record of the proceedings in the court below, that record

is hereunto annexed and hereby made a part hereof,

This court recognizes that the facts upon which this certificate submits questions

of law are these existing during the pendency of the cause in this appellate court,

though differing from those at the time of the decision below, and that we are required

to ascertain those facts and dispose of appellant's claim of freedom from the custod

of the War Relocation Authority in the same summary manner as in the district court.

The case is before us over twenty months after the regulations and administrative

orders establishing the War Relocation Centers and the confining therein of American

citizens of Japanese descent evacuated from the Military Areas of the Pacific Coast,

The regulations of January 1, 1944, (9 F.R. 154) controlling the continjance of sys

confinement of such American citizens are not of a temporary character,

These regulations may be summarized as providing for such citizens no release from

the control of the War Relocation Authority. They provide only for a revocable ""in-

definite leave" from the confinement in the Relocation Center, conditioned upon the

agreement of the citizen to make report to the Director of any change of residence or

employment. `Such revocable leave is obtainable and is revocable by an administrative

procedure in which none of the elements of due process is present.

Such conditional and revocable leave may be had only after the citizen has procured

the approval of her application for a "leave clearance" by the Director, who instructs

the Project Director, who is restraining the citizen at the Center, of the approval or

disapproval of the citizen's application for such clearance. In the administrative

proceeding for the procuring of the approval for leave clearance from the distant Di-

rector, the Director holds no hearing, The citizen remains imprisoned at the center

while the Director considers the secret reports of the Federal Bureau of Investigation

and determines the granting or denial of the citizengs petition for leave clearance

on such and other reports of which the citizen has knowledge, much less the right to

cross-examine persons stating facts likely to lead to the denial of the clearance,

The granted leave clearance states that its granting does not give the right to

leave the Center. The restrained citizen must then apply for one of three types of

leave, of which the most favorable is the revocable "indefinite leave" from the con-

finement of the Center. This will be granted only after the Director has determined

1. Under the decision of Mensevich v. Tod, 264 U.S, 134, 136, "the validity of a deten-

tion questioned by petition for writ of habeas corpus is to be determined by the condi-

tion existing at the time of the final decision thereon" in the appellate as well as the

district court. The procedure in such determination of the conditions prevailing at the

time of the hearing by the appellate tribunal is of the same summary character as is re-

quired of the trial court. In the appellate court "all the freedom of equity procedure

is thus prescribed and substantial justice, promptly administered, is ever the rule in ha

beas corpus." Storti v. Massachusetts, 183 U.S. 138, 143.

@e Part 5, Chap. 1, Title 32 Code of Federal Regulations, as amended Jamuary 1, 1944,

that the citizen has the means for his self-support or employment for such support

and that the community in which he intends to reside will accept him. Here, as with

the application for "leave clearance", the citizen has provided for him no hearing nor

any of the essential elements of due process.

The parties are agreed that on February 19, 1943, appellant applied to the War Re-

location Authority for a leave clearnace and that over six months later, on August 23,

1943, her application was granted. The Authority's brief here admihs that the leave

clearance so granted was a "determination that her release would not impede the war ef-

fort or be contrary to public peace and safety, which means in effect that she is found

to be not disloyal." It is also agreed that appellant has not availed herself of any

other of the provisions of the regulations.

On behlaf of the War Relocation Authority is the contention that the rights con+

ferred by Part 5, Chaps. 1, Title 32 Code of Federal Regulations, as amended January 1,

1944, upon such citizens confined in such centers, constitute a sufficient provision for

the freedom of such citizens and that such citizens have no right to seek freedom through

habeas corpus proceedings until they have complied with the requirements of the regula=

tions.

On behalf of appellant are the contentions that she is entitled to an unconditional

release from such confinement in the present habeas corpus proceeding (2) because in the

absence of any of the rights of due process in such regulations they afford her no such

remedy as due an American citizen and that she may ignore their requirements, and that

any proceeding commenced thereunder has no relation to the right to release on habeas

corpus; (b) because, if the finding of loyalty to the United States in procesdings under

such regulations be relevant, she may ignore all the further requirements regarding

means of self-support or supporting employment and community acceptance, since they can-

not be imposed upon a loyal American citizen whether or not of Japanese ancestry; (c)

because, assuming such latter requirements may be imposed upon such a loyal American

citizen, no hearing or any of the rights of due process are accorded her for the estabe

lishment of such requirements, and (d) because in no event can she be kept in such con-

finement until she accept such a revocable indefinite leave from such confinement with

the agreement to report to the Authority.

Because of the summary nature of appellant's claim for relief from her alleged

wrongful restraint and of the great public need for the decision of the question of the

right to restrain many thousands of such citizens in Relocation Centers, now almost two

years since their evacuation from the Pacific Coast areas, this court certifies to the

Supreme Court of the United States the following questions of law concerning which in-

struction is desired for the proper decision of the cause pending before us:

(1) Has the War Relocation Authority the power to hold in its custody in a War Re-

location Center an American citizen, now more than twenty months after such citizen has

been evacuated from her residence in California, without any right in such citizen to

seek a release from such custody in a hearing by the Authority with the substantial ele-

ments of due process for the determination of facts warranting her further detention,

because such citizen is of Japanese ancestry?

(2) If under the regulations as amended Jamary 1, 1944, the War Relocation Authori-

ty has determined that an United States citizen of Japanese descent is loyal to the Uni-

ted States, and such determination be relevant, may the Authority continue to confine

such citizen in a Relocation Center untib such citizen establishes to the satisfaction of

the Director that there is no reasonable cause to believe that she will not have employ=

ment or other means of support or that she cannot otherwise successfully maintain resi-

dence at the propesed destination of the citizen when she is released from such confine-

ment?

($) If under the regulations as amended January 1, 1944, the War Relocation Authori-

ty has determined the loyalty to the United States of a citizen confined in a War Reloca-

tion Center and such a determination be relevant, may such Authority continue such con

finement until the Authority determine whether or not there is no reasonable cause to

believe that she will not have employment or other means of support or that she cannot

_ otherwise successfully maintain residence at the proposed destination, without any hear-

ing in which such issues may be tendered by the citizen or at which the citizen may be

present in person, or by counsel, to offer evidence thereon or at which mst be presen-

ted the evidence adverse to her contention or at which she is confronted with the wit-

nesses adverse to her contentions?

(4) If such requirements of self-support and commnity acceptance may be imposed

upon a loyal American citizen, may such a citizen be confined in such a @enter until she

satisfy the Authority, when despite such satisfaction she mst further agree that she

Will report to the Authority as required by such regulations?

United States Circuit Judge