D'AGOSTINO v. Sahli, 15667.

• Citation: 230 F.2d 668
• Decision Date: 14 March 1956
• Docket Number: No. 15667.,15667.
• Parties: Antoine D'AGOSTINO, Appellant, v. Walter A. SAHLI, District Director of the United States Immigration & Naturalization Service, San Antonio, Texas, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

230 F.2d 668 (1956)

Antoine D'AGOSTINO, Appellant, v. Walter A. SAHLI, District Director of the United States Immigration & Naturalization Service, San Antonio, Texas, Appellee.

No. 15667.

United States Court of Appeals Fifth Circuit.

March 14, 1956.

Harold D. Putman, Putman & Putman, William O. Murray, Jr., Joseph J. Reid, Richard G. Strong, San Antonio, Tex., for appellant.

Harman Parrott, Asst. U. S. Atty., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before BORAH, TUTTLE and JONES, Circuit Judges.

BORAH, Circuit Judge.

By his petition for a writ of habeas corpus, the appellant, Antoine D'Agostino, challenged the legality of his detention by certain officials¹ in San Antonio, Texas. Petitioner alleged that he was illegally restrained and confined in violation of the laws of the United States or treaties of the United States with foreign countries; that he was kidnapped from his residence in Mexico City by an Ambassador of the Republic of Mexico and in the custody of a United States Narcotic Agent, flown from Mexico City to San Antonio, Texas; that he was forced to appear before a Special Inquiry Officer for the United States Immigration and Naturalization Service at a hearing and was denied counsel² and an opportunity to subpoena witnesses at said hearing; that he had been informed that he had been charged in New York City with violating the United States narcotics laws, but that he is not the person named in the indictment for the reason that he has never been in New York City; and that unless a writ of habeas corpus was granted he would be carried to the State of New York against his will.

A hearing was had on the petition and from the evidence there adduced it appears that relator was a native-born citizen of France; that he had never applied to any other country for citizenship and that he had resided in the Republic of Mexico for seven and one-half years prior to March, 1955, except for a period between March and December 31, 1949, when he was in Canada. That he was arrested in Mexico by Mexican authorities approximately ten days before his removal to the United States and the fact of his arrest was communicated to one Benjamin S. White, Jr., a representative of the United States Treasury Department in Mexico City. That thereafter White fingerprinted and identified relator as the person named in the bench warrant which had theretofore issued on an indictment returned against him in New York and advised D'Agostino of the pendency of the charge.³ It further appears that White was later informed by the Mexican authorities that D'Agostino was to be deported,⁴ whereupon White notified his superior⁵ in Washington, D. C. of D'Agostino's anticipated arrival at San Antonio and purchased with funds of the United States Government three airplane tickets for the use of himself, D'Agostino and one Orlando Delgado, an investigator in the office of Political and Social Investigations of the Republic of Mexico. On March 15, 1955, White, together with Delgado and D'Agostino who was in the custody of Delgado, boarded the plane in Mexico City and at 4:00 a. m. on the same day they arrived in San Antonio, Texas where they were met by representatives of the United States Immigration Service and a narcotics agent. D'Agostino was immediately determined to be a deportee from Mexico and prima facie excludable, and he was served with a notice to the effect that he was being referred to the officers of the Immigration and Naturalization Service for further hearing.

On March 16, 1955, relator was afforded a hearing before a Special Inquiry Officer, who held that he was excludable from admission to the United States, and he was immediately remanded to the custody of the Immigration Service for deportation proceedings. On the following day relator was served with the above-mentioned warrant of arrest by a Deputy United States Marshal for the Western District of Texas, and was thereafter held in custody in the county jail until his removal to the court below for hearing on his petition for a writ of habeas corpus.

D'Agostino contended at the hearing that irrespective of whether he had been deported he was brought to the United States against his will and was not an applicant for entry, and therefore that the immigration officials, having acquired no jurisdiction over him, were barred from subjecting him to exclusion proceedings under the United States immigration laws. He further contended that the custody of the marshal is likewise unlawful for the reason that the immigration officials had no lawful custody of him at the time the warrant was served.

On the other hand, government counsel argued that there was no induction of D'Agostino, but that he was legally deported under the laws of Mexico, and that anyone appearing on the borders of the United States under the laws of this country is subject to a determination of whether or not he is entitled to enter the United States; and that the proceedings held before the Special Inquiry Officer were in accordance with law.

The trial court denied the petition for a writ of habeas corpus and this appeal followed.

We think it plain and it is not argued to the contrary, that appellant failed to establish any violation of a treaty of the United States. We are also of opinion that appellant failed to carry the burden of showing⁶ that he was forcibly kidnapped and brought into the United States as alleged. To the contrary, the evidence shows that he was regularly deported by the Mexican government, and the most that can be said for appellant's claim is that he was unwilling to be removed from Mexico.

Thus we come to appellant's principal contention which is that the officers in whose custody he is being held have no jurisdiction over his person. We think it clear that appellant was within the jurisdiction of the Immigration and Naturalization Service under 8 U.S.C.A. §§ 1225, 1226, and 1227, which give the immigration officials authority to examine, detain and deport, if excludable, any alien who enters the United States. The word "entry" is defined in 8 U.S.C.A. § 1101(a) (13) as follows: "The term `en...