Moraitis v. Delany

• Citation: 46 F. Supp. 425
• Decision Date: 28 August 1942
• Docket Number: No. 1693.,1693.
• Parties: MORAITIS v. DELANY, Acting Director of Immigration.
• Court: U.S. District Court — District of Maryland

46 F. Supp. 425

MORAITIS v. DELANY, Acting Director of Immigration.

No. 1693.

District Court, D. Maryland.

August 28, 1942.

Wilfred T. McQuaid, Joel J. Hochman, and Max L. Berman, all of Baltimore, Md., for plaintiff.

Bernard J. Flynn, U. S. Atty., and K. Thomas Everngam, Asst. U. S. Atty., both of Baltimore, Md., for director.

CHESNUT, District Judge.

This habeas corpus case presents a question of novelty arising in the administration of the Federal Alien Deportation Statute. The particular point is this. On June 24, 1942 the petitioner was arrested in Baltimore on a warrant charging that he was an alien subject to deportation. In accordance with due procedure he was given a hearing with the result that on August 8, 1942 a warrant was issued for his deportation to Greece. Because Greece has now been overrun and occupied by Germany, the petitioner contends that it is impossible to execute the warrant, and will continue to be impossible for an indefinite duration, and therefore he is entitled to be released from custody either absolutely, or at least upon giving bond for his appearance at such time in the future that the warrant can be executed. The respondent contends, however, that although the warrant cannot immediately be directly and exactly executed it can nevertheless be substantially executed by presently deporting the petitioner to England where the Greek Government is now functioning in exile, as recognized by the State Department of the United States; and in any event in view of the present difficulties in transportation resulting from the world-wide war, the petitioner is not now entitled to be released from custody either absolutely or on bail.

From the testimony taken at the hearing I make the following findings of fact.

The petitioner is a man 45 years of age of the Greek race who was born in Turkey, but moved with his family in 1914 to the Island of Chios in the Aegean Sea, under the government of Greece. He lived there continuously with his family until August 15, 1939 when he left to come to this country. He is married and has three minor children who remained in Chios until Greece was overrun and occupied by Germany, when they went as refugees to the Island of Cyprus, a British possession, and are there now.

The petitioner, Moraitis, signed on as a member of the crew of the Greek steamship "Aghios Nicholaos"; at the port of Huelva, Spain, on October 14, 1939. The ship arrived in Baltimore November 6, 1939. The official manifest filed here by the master of the ship (see 8 U.S.C.A. § 171) gave the following data with regard to the petitioner as a member of the crew. His name was given as Stamatios Hadjistamatis, 12 years service at sea, position in crew trimmer, engaged at Huelva, October 14, 1939, not to be paid off or discharged at port of arrival, able to read, age 42, male, race Greek, nationality Greek, height 5 feet 6 inches, weight 158 pounds. The official statement of the master of the vessel regarding change in the crew prior to departure filed at the port of Baltimore on June 27, 1940, from the port of Rosario, Argentine, stated that Stamatios Hadjistamatis was discharged (presumably at Baltimore). The petitioner testified that Hadjistamatis was his mother's maiden name and that the entries on the ship's manifest with regard to him were correct with the exception that he had not had 12 years service at sea but only three months, and that he was not engaged as a trimmer but as an ordinary seaman.

Moraitis had a brother and some cousins in Baltimore and received employment here by or through them in a restaurant and was so occupied from about the time of his arrival in November 1939 until he was arrested on June 24, 1942 on the warrant charging that he was subject to deportation for the reason that he was in the United States in violation of the Immigration Act of 1924, 8 U.S.C.A. § 201 et seq., in that he had remained in the United States for a longer time than permitted under said Act or the regulations made thereunder. The warrant contained the following notation: "The alien may be permitted to re-ship foreign without expense to the United States, such departure to be verified." Moraitis was given a hearing with opportunity to show cause why he should not be deported. The presiding Inspector who conducted the hearing found that the petitioner is an alien native of Turkey and subject of Greece who last entered the United States at Baltimore on November 6, 1939 on the Greek Steamship Aghios Nicholaos from Huelva, Spain, as a seaman, and was admitted for a period of 60 days and that he had overstayed that permissible period of time. His conclusion of law was that the alien was subject to deportation under sections 14 and 15 of the Immigration Act of 1924, 8 U.S.C.A. §§ 214, 215, and was deportable to Greece. He also found from the testimony that the alien had property in the United States consisting of $540 in a savings account and $300 in Defense Bonds; and that he was apparently of good moral character, and had registered under the alien and selective service registration acts. He proposed an order that the alien be deported to Greece at government expense, on the charge stated in the warrant of arrest. He further recommended that the alien be permitted to depart from the United States or re-ship foreign without expense to the government of any country of his choice immediately under safeguards, such departure to be verified and considered as satisfactory compliance with the terms of the warrant. The respondent in this case, J. F. Delany, acting as District Director of the Baltimore District, concurred in the presiding Inspector's proposed findings, conclusions and order. The file in the case was duly transmitted to Philadelphia and after reviewing it Herman R. Landon, Acting Chief Warrant and Deportation Branch (of the Department of Justice) approved the findings and conclusions, and under date of August 8, 1942, the warrant was issued for the deportation of the alien to Greece.

Both at the Departmental hearing and at the hearing in court here, Moraitis testified that he had had only three months service as a seaman, and that he found he was not able to follow the sea as he was seasick or otherwise incapacitated by that service, and for that reason was unwilling to re-ship foreign. That he had not been a seaman for any long period was corroborated by two relatives residing in Baltimore on the basis of general family information. One witness had visited Moraitis in Chios in 1930 and found that he was then conducting a store. The weight of the testimony in this respect is that he is not in fact an experienced seaman, and a fair inference from the testimony as a whole is that he came to this country as a member of the crew of the steamship for the purpose of entering the country and staying here if possible, although he testified that he did not form the intention of staying here until he had "walked off the ship" and remained here some time, and that nobody told him he could remain only 60 days. He states that he was an infantry lieutenant in the Greek Army in 1914 and that he is willing to enter the military service of the United States (and thereby under recent legislation become a naturalized citizen). He appears to be in ordinary good health. The evidence justifies the view that the alien's unwillingness to re-ship foreign and his resistance to deportation is primarily motivated by his desire to stay in this country and accumulate money for the partial support of his relatives in Cyprus.

The petition for habeas corpus was filed in this court on August 12, 1942, before the receipt in Baltimore of the formal warrant of deportation and without knowledge on the part of the petitioner that it had been previously issued. The petitioner, therefore, only asked that he should be discharged from further custody upon his furnishing bond in accordance with the provision of section 20 of the Immigration Act of 1917, 8 U.S.C.A. § 156. The respondent's answer filed August 14, 1942, recited the issuance of the warrant of deportation, denied that the petitioner was entitled to be released either generally or on bail, and neither admitted nor denied "German occupation of relator's home Island of Kipros (Cyprus) because of lack of information and knowledge. It is averred, however, that deportation is about to be accomplished and that such deportation seems to be possible in care of the Free Government of Greece presently in exile in England." It was, however, stipulated here in court at the hearing that it is not practicable or reasonably possible at this time to deport the alien directly to Greece and that if the petition for habeas corpus is dismissed, the government will transfer the alien to Ellis Island to await the first practicable opportunity to deport him to England. There was offered in evidence the official certificate of the Secretary of State "that the Government of the United States recognizes the Greek Government now functioning in England as the Government of Greece." Now that the warrant has been issued the petitioner contends that he should be discharged because the warrant cannot be executed.

In the past there has been lax enforcement of the immigration laws regarding foreign seamen who enter and remain in this country more than the permissible 60 days. On account of present war conditions this has caused many foreign seamen to desert their ships, as they desire to remain in this country permanently if possible, or at least until they can re-ship on American or Panamanian ships at higher wages and better conditions. The result has been to seriously diminish the number of seamen available to man foreign ships and thus to cause delays in their sailing, to the serious prejudice of the whole war effort of the Allied Nations. But in the last few months the stricter enforcement of our immigration laws by arrests, confinement and deportation of deserting foreign seamen,...