United States v. Curran

• Decision Date: 10 January 1927
• Docket Number: No. 140.,140.
• Citation: 16 F.2d 958
• Parties: UNITED STATES ex rel. KARAMIAN v. CURRAN, as Commissioner, etc.
• Court: U.S. Court of Appeals — Second Circuit

16 F.2d 958 (1927)

UNITED STATES ex rel. KARAMIAN v. CURRAN, as Commissioner, etc.

No. 140.

Circuit Court of Appeals, Second Circuit.

January 10, 1927.

Emory R. Buckner, U. S. Atty., of New York City (Nathan R. Margold, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Vahan H. Kalenderian, of New York City, for appellee.

Before HOUGH, MANTON, and MACK, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The matter at bar is singular, because a writ of habeas corpus primarily inquires into the legality of a relator's detention or imprisonment, and we here start with an admission that Karamian's present deprivation of liberty is entirely lawful. This results from his own story, as above summarized; and counsel admits that he must be deported — i. e., sent out of the United States somewhere. The only purpose of the writ is to ascertain where he must or may go, and how he shall get there.

The direction below was that he "be permitted voluntarily to return to Marseilles, France," which, taken literally, is a discharge on condition that he removes himself to France as soon as may be reasonable, or perhaps convenient.

This state of facts is apparently unique and presents several questions:

(1) Can habeas corpus be used, not to test the legality of an imprisonment, but that of the action which will be taken when respondent's custody of relator ceases?

(2) If the writ suffices for its attempted purpose, was the order appealed from proper?

(3) If the writ was well issued, but the order wrong in form or substance, what must be done with Karamian?

The action challenged by the first question has undoubtedly been taken by this court, on several occasions, though never, we think, where it was not preceded by inquiry into the right to deport. United States ex rel. Moore v. Sisson (C. C. A.) 206 F. 450, which in effect overruled the Ueberall Case (United States v. Williams) 187 F. 470, in District Court for S. D. of N. Y. See, also, United States v. Ruiz (C. C. A.) 203 F. 441, and Wallis v. United States (C. C. A.) 230 F. 71, in Fifth Circuit.

But after the Supreme Court had deliberately left the question open in Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967, the matter came up squarely in United States ex rel. Hen Lee v. Sisson, 232 F. 599, and this court again asserted and exercised the power to ascertain the lawful port or place to which the alien should be deported, and do so in habeas corpus proceedings. We also therein directed the appropriate amendment of the order or warrant of deportation.

We fully recognize the technical difficulties inherent in such procedure. We act by statute, and sections 751, 752, R. S. (Comp. St. §§ 1279, 1280) authorize the judges to grant habeas corpus only for the "purpose of an inquiry into the cause of restraint of liberty," and it is certainly true in this case that the cause of Karamian's restraint is an admitted liability to deportation. It is also true that a remedy is afforded for an intent on the part of the Secretary of Labor to send an alien to an unlawful destination, by proceedings against him in the courts of the District of Columbia, and it is just as true that by the course of practice, of which we take notice, an alien who is to be deported over seas (and nearly all of them must so leave this country) is placed, when the Commissioner's custody ends, in the custody of a ship captain, who is to leave for foreign parts in probably a few hours, and it cannot be doubted that, if that captain detained the alien in order to take him to an unlawful destination, habeas corpus would lie to relieve against such custody.

It is hard to say whether, for the average unlawful entrant in this country, suit in Washington, D. C., or a last hour writ against a shipmaster, is the more illusory remedy. If such litigants are to have any real chance for a hearing, it can only be under a writ cheaply obtainable and directed to an official easily reached and officially residing in one known place. If habeas corpus, as used in this circuit, cannot reach this wrong, it is practically remediless, and to widen the scope of the writ, to embrace a possible future wrong that grows out of the exercise of the present right of detention, is, we think, allowable. It is certainly not different in kind or extent from the frank use of the writs of prohibition and/or mandamus by the Supreme Court promptly to rectify matters in the trial courts, instead of relegating litigants to future appeals or writs of error. For these reasons (frankly ab inconvenienti) we adhere to our previous rulings and answer our first inquiry in the affirmative.

As to the second question, we think the order wrong, in that it does not direct deportation at all. It substantially tells the Department of Labor to let Karamian go to Marseilles when and as he pleases. Deportation means compulsory action; this order does not.

So we reach the third query, as to what the order should have required. This depends on the scope and meaning of section 20 of the Immigration Act of 1917, which is set forth in a note below,¹ as punctuated in the Statutes at Large (39 Stat. 890 Comp. St. § 4289¼k).

The single ill-drawn sentence of this section falls into three subdivisions:

(1) The general provision that aliens deportable under the statute shall go to their foreign port of embarkation or "the country whence they came" at the Secretary's option.

(2) A special provision for such of the class of deportable aliens as embarked originally for "foreign contiguous territory," and we think it clear that the Secretary has the same option as to this "contiguous territory" class that he has...