264 F.2d 926 (2nd Cir. 1959), 138, United States ex rel. Tom Man v. Murff
|Docket Nº:||138, 25304.|
|Citation:||264 F.2d 926|
|Party Name:||UNITED STATES of America ex rel. TOM MAN, also known as Tom Gin Sing, Relator-Appellee, v. John L. MURFF, as District Director of the Immigration and Naturalization Service of the United States Department of Justice for the District of New York, or such person, if any, who might have said relator in custody, Respondent-Appellant.|
|Case Date:||March 03, 1959|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Jan. 20, 1959.
Roy Babitt, Arthur H. Christy, U.S. Atty. for the Southern Dist. of New York, New York City, for respondent-appellant.
Max K. Schlem, Spar, Schlem & Burroughs, New York City, for relator-appellee.
Before HAND and WATERMAN, Circuit Judges, and BYERS, District Judge.
HAND, Circuit Judge.
The District Director of Immigration and Naturalization appeals from an order of Judge Dimock, sustaining a writ of habeas corpus and releasing the relator from the Director's custody. The relator was born in China and last entered the United States in 1925 as a seaman upon a British ship; concededly he is subject to deportation for having long overstayed the time permissible to a seaman who leaves his ship. Deportation proceedings were begun against him in 1952, a Board of Special Inquiry found him subject to deportation in 1954, and the District Director issued a warrant for his deportation 'pursuant to law.' § 243(a) of the Immigration and Nationality Act (§ 1253(a), Title 8 U.S.C.A.), provides that the Attorney General shall 'direct' the 'country' to which an alien shall be deported; but that the alien may choose the 'country' to which he shall be sent, if that 'country' is willing to accept him, and if the Attorney General thinks that it will not be 'prejudicial to the interests of the United States, ' to send him there.
The relator specified 'Formosa' as the 'country' to which he wished to be deported, and the Attorney General applied to the National Chinese Government
to 'accept' him. That government, however, refused to do so, whereupon the Attorney General directed him to be sent to 'China, ' which, as both sides agree, meant the 'mainland of China.' This appeal depends upon whether the Act permits this disposition, provided that in addition it is shown that the Attorney General is properly satisfied, that if so deported, he will not be subject to 'physical persecution, ' (§...
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