United States Mensevich v. Tod, 148
| Decision Date | 18 February 1924 |
| Docket Number | No. 148,148 |
| Citation | 264 U.S. 134,68 L.Ed. 591,44 S.Ct. 282 |
| Parties | UNITED STATES ex rel. MENSEVICH v. TOD, Commissioner of Immigration at the Port of New York |
| Court | U.S. Supreme Court |
Messrs. Walter Nelles and Isaac Shorr, both of New York City, for appellant.
Messrs. James M. Beck, Sol. Gen., of Washington, D. C., and George Ross Hull, Sp. Asst. Atty. Gen., for appellee.
In 1911 Mensevich emigrated from Russia to the United States. In 1921 he was arrested in deportation proceedings, as an alien in this country in violation of law. Act Oct. 16, 1918, c. 186, §§ 1 and 2, 40 Stat. 1012, as amended by Act June 5, 1920, c. 251, 41 Stat. 1008. After a hearing, the warrant for deportation issued. Then this petition for a writ of habeas corpus was brought in the federal court. It was dismissed without opinion; the relator was remanded to the custody of the commissioner of immigration for the port of New York; and a stay was granted, pending this appeal. The case is here under section 238 of the Judicial Code; the claim being that Mensevich was denied rights guaranteed by the federal Constitution.
The government moved under rule 6 of this court to dismiss, insisting that the appeal does not present a substantial question. Consideration of the motion was postponed until the hearing on the merits. The grounds on which the detention was challenged in the petition are the same as those which were held to be unsound in United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 44 Sup. Ct. 54, 68 L. Ed. ——. That decision was not rendered until after this appeal was taken. The motion to dismiss is therefore denied. Sugarman v. United States, 249 U. S. 182, 183, 39 Sup. Ct. 191, 63 L. Ed. 550. In the traverse to the return the legality of the detention is challenged on a further ground. That ground would not have entitled the relator to bring the case here by appeal. For the only substantial question thus presented is one of the construction of a statute. But, since the case is properly here, this objection must be considered. Compare Zucht v. King, 260 U. S. 174, 176, 177, 43 Sup. Ct. 24, 67 L. Ed. 194.
Immigration Act Feb. 5, 1917, c. 29, § 20, 39 Stat. 874, 890 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289 1/4 k), provides that the deportation of aliens 'shall, at the option of the Secretary of Labor, be to the country whence they came or to the foreign port at which such aliens embarked for the United States.' Mensevich was ordered deported 'to Poland, the country whence he came.' He insists that the warrant for deportation is illegal, because prior to his emigration to the United States he had been a resident of Tychny, in the province of Grodno, then a part of Russia;...
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LANDON V. PLASENCIA
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