Dever v. Visic, 12757.

• Citation: 180 F.2d 924
• Decision Date: 31 March 1950
• Docket Number: No. 12757.,12757.
• Parties: DEVER v. VISIC.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

180 F.2d 924 (1950)

DEVER v. VISIC.

No. 12757.

United States Court of Appeals Fifth Circuit.

March 31, 1950.

Ernest L. Duhaime, Asst. U. S. Atty., Miami, Fla., H. S. Phillips, U. S. Atty., Tampa, Fla., for appellant.

Walter E. Dence, Charles B. Breslow, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and WALLER and RUSSELL, Circuit Judges.

WALLER, Circuit Judge.

The Government brings this appeal from the final order in habeas corpus proceedings in the United States District Court for the Southern District of Florida, Miami Division, by the terms of which the Officer in Charge of the Immigration and Naturalization Service for the said District, respondent in the Court below and appellant here, was ordered to terminate deportation proceedings against John Visic, petitioner below and appellee here.

John Ivan Visic, a Yugoslavian by nativity, a seaman by occupation, entered the United States on several occasions for prolonged stays during the period 1925 through 1948. On one of such occasions (August, 1943) he was arrested by immigration authorities, held in custody at Ellis Island, and charged with being in this country illegally as an alien seaman. Anticipating deportation and pending the proceedings, Visic volunteered for duty as a seaman on a merchant vessel in the service of the United Nations, in which role, with the permission of the immigration authorities, he served until regularly and honorably discharged.

Seeking permanent residence and legal entry into the United States under color of the preferential status provided by law for alien seamen who had served with the allied nations, Visic in September, 1948, applied for and obtained an immigration visa from the American Consul in Havana, Cuba, and by privilege of this credential landed in Miami, September 8, 1948, where he was detained and interrogated by immigration authorities, with the result that he was temporarily excluded from admission pursuant to the provisions of Part 175.57, Title 8, Code of Federal Regulations, as "a person whose entry is deemed prejudicial to the United States." Through the claimed empowerment of the same regulation the Attorney General subsequently made the order of exclusion permanent and ordered Visic's deportation by the first available transportation. At this juncture Visic filed his petition for writ of habeas corpus.

In reply to the rule to show cause issued upon the petition, the immigration authorities simply recited the antecedent facts giving rise to the detention and represented that under authority of the regulation cited hereinabove the detention and pending order of deportation were lawful.

Denouncing the Government's reply as a mere catalogue of legal conclusions that wholly failed to advance sufficient facts to show cause, the petitioner moved for a better statement and for an order to compel the Respondent, Immigration and Naturalization Service, to attach to the respondent's return the documents and records of the proceedings upon which the exclusion of the petitioner was predicated. The motion was granted. Whereupon the United States Attorney applied for a rehearing, vigorously asserting that disclosure of the records and proceedings in Visic's case would...