United States v. Murff

• Decision Date: 03 March 1959
• Docket Number: No. 138,Docket 25304.,138
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

264 F.2d 926 (1959)

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.

No. 138, Docket 25304.

United States Court of Appeals Second Circuit.

Argued January 20, 1959.

Decided March 3, 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," (§ 243(h)). The relator had a hearing upon that issue and the Attorney General was so satisfied; but Judge Dimock refused to review the finding because the Act did not permit deportation to China even though the relator would not be subject to "physical persecution." His reason was that the Attorney General had not "inquired" of the Communist Government of China whether it was willing to "accept" the relator.

Section 243(a) provides that, if the "country" selected by the alien, will not "accept" him, he shall be deported to "any country of which such alien is a subject national, or citizen if such country is willing to accept him into its territory." As the relator was born in China, he is "a subject national" or a "citizen" of either the Nationalist Government of China, or the de facto Communistic Government, but, since the Attorney General has made no inquiry of the latter, it is as yet undecided whether that government will "accept" him when he is produced at its border. The appellant, however, argues that it will be enough if the Communist Government does "accept" him at that time, and that to rule otherwise will be to...