United States v. Watkins

Decision Date13 September 1946
Citation69 F. Supp. 889
PartiesUNITED STATES ex rel. GREGOIRE v. WATKINS, District Director of Immigration and Naturalization.
CourtU.S. District Court — Southern District of New York

Gunther Jacobson, of New York City, for relator.

John F. X. McGohey, U. S. Atty., of New York City (Laurence H. Axman, Asst. U. S. Atty., of New York City, of counsel), for respondent.

KNOX, District Judge.

In this proceeding Armand Gregoire, who is now detained by respondent as an alien enemy under the provisions of Title 50 U.S.C.A. § 21, and the Proclamation of the President No. 2526, dated December 8, 1941, seeks to be released from custody.

Relator was born at Metz, in the province of Lorraine, on October 9, 1894, at which time that territory was a part of Germany. His father was born there in 1865 which, of course, was prior to the disaster that overtook France in the Franco-Prussian war. He therefore, if alive and in the United States, could not possibly be regarded as an alien enemy. The son, nevertheless, by reason of the status of Lorraine at the date of his birth and notwithstanding that he is now a citizen of France, has been declared to be an alien enemy, and has been ordered to depart this country, or be removed to Germany. The theory is that he is a "native" of a country with which the United States is at war.

Relator has made three previous applications for relief similar to that now sought. The first two were in the form of orders to show cause why a writ of habeas corpus on his behalf should not be issued. They came before the United States District Court for Northern California, and on each occasion the writ was refused. See Ex parte Gregoire, 61 F.Supp. 92.

Thereafter, and when Gregoire had been brought within this jurisdiction, he asked for and obtained a writ. When brought into court, he is said to have been denied leave to prepare, serve and file a traverse to respondent's return to his petition. I am told that he was also denied the right to have a stenographer take minutes of the proceedings. His request to submit evidence in support of his petition was also denied. The writ was thereupon dismissed. The basis of this action was (1) that such application was predicated on facts that were before the court in the California proceedings; (2) that the writ was premature in that it had issued prior to the service on relator of the order for his removal from the United States; (3) that there had been no substantial change in the circumstances surrounding his detention which would justify a hearing on the merits of his petition; and (4) that he had not appealed from the decision made against him in the District Court for Northern California.

From the order dismissing that writ, relator took an appeal to the Court of Appeals for this Circuit, and the same is pending there at the present time.1 Notwithstanding all this, relator presented me with a petition for a writ. The grounds on which he claimed to be entitled thereto were (1) that, subsequent to his former petition, he was served with an order for his removal from the country, and that the same is illegal in that he is a native and citizen of France, and not of Germany; (2) that the government had failed to comply with Sections 22 and 23 of Title 50 U.S.C.A., in that relator was not actually allowed time within which to leave the country, and that no court determination of the validity of the removal order had been had, and (3) that the Attorney General had exceeded the powers delegated to him by the President in finding that relator had adhered, as charged against him, to an enemy government, or to the principles thereof. Relator contended that since no court has passed on that issue, he had been denied due process of law.

When relator's petition first came before me, I viewed the same with askance. My thought was that he had had his day in court, and that his case should not have further consideration here. When, however, my attention was called to the fact that one reason for the dismissal of relator's former writ was that it was premature (which it is not now), and was apprised in addition that relator had at no time been permitted to be personally heard, I felt that a new writ should issue. Indeed, in the light of the latter circumstance, it seemed that, under the decision in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 578, 85 L.Ed. 830, the issuance of a writ was little short of mandatory. In the decision of that case, Mr. Justice Roberts said:

"The District Court proceeded to adjudicate the petitioner's right to the writ upon the allegations of his petition and traverse and those of the return and accompanying affidavits. Thus the case was disposed of on ex parte affidavits and without the taking of testimony. The practice thus to dispose of applications for habeas corpus on matters of fact as well as of law has been followed in the Ninth and Tenth Circuits.

"In the other circuits, if an issue of fact is presented, the practice appears to have been to issue the writ, have the petitioner produced, and hold a hearing at which evidence is received. This is, we think, the only admissible procedure. Nothing less will satisfy the command of the statute that the judge shall proceed `to determine the facts of the case by hearing the testimony and arguments.'"

Respondent's return to the writ thus authorized is to the effect that relator, having been born in Metz, Germany, on October 9, 1894, is a native, citizen, denizen or subject of Germany, and hence an alien enemy, who is subject to Section 21 of Title 50 of the United States Code Annotated, and to Presidential Proclamation No. 2526. The return, after setting forth the proceedings that had heretofore been had, denies that relator is entitled to be released from custody. It admits, nevertheless, that relator "legally entered the United States on his French passport and on a French quota immigration visa, in March, 1941, and is a legal resident of the United States."

At the time the writ came on to be heard Mr. Axman, Assistant United States Attorney, on behalf of respondent, arose and said:

"May it please your Honor; if I may, the relator is the moving party here, but the object of the government today will be to try to present to your Honor its position by way of argument, that this matter should not be turned into a hearing, which your Honor has said he was disposed to do. And if your Honor will hear me briefly on that point, that will be the government's entire position today; and I do not intend, should your Honor overrule me, to participate in any hearing in the nature of cross-examination or evidence. * * * I should like to make my argument because that is our entire position, that this hearing should not proceed."

Mr. Axman proceeded to say that I was without authority to review the determination of the Attorney General to the effect that Gregoire is an "Alien enemy who is dangerous to the public peace and safety of the United States because he has adhered to a government with which the United States is at war, or the principles thereof."

At the conclusion of the argument, I directed the hearing to proceed, and heard the testimony offered by relator. A detailed summary of its content need not be stated. It is sufficient to say that in his early youth, relator attended elementary schools in Metz and in Alsace. His higher education was received at Oxford and Heidelberg. Thereafter, he studied law at the French University of Strasbourg. In 1914, at the age of 20 years, he was conscripted into the German Army. In November of that year, he was taken prisoner by the Russians, and remained their captive in Siberia until 1917. He was then exchanged as an invalid and spent considerable time in Finland. At the time of the Armistice of 1918 he was back in Lorraine. He subsequently returned to the University of Strasbourg, where he completed his law course, and was later admitted to the practice of his profession at Metz. Thereafter, he went to Paris and there practiced law until his departure for the United States in 1941.

Relator has twice been married, the first time in 1921. This union was dissolved in 1936. In 1937, he married an American girl whose home was in California. In May of 1940, his wife being pregnant, desired her child to be born in the United...

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3 cases
  • Gregoire v. Biddle, 36
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 24, 1949
    ...177 F.2d 579 (1949). GREGOIRE. v. BIDDLE et al. No. 36, Docket 21401. United States Court of Appeals, Second Circuit. Argued October 3, 1949. Decided October 24, ...Gregoire v. Watkins, supra,1 not because we should not be free to consider them if need were;3 but, because 177 F.2d ......
  • THE NORTE
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 10, 1947
    ...... the acid for failure to meet the specifications prescribed in the Pharmacopoeia of the United States, 11th revision. .         The claimant-respondent's analyst found sulphates and ......
  • USA, ex rel Grégoire v Watkins
    • United States
    • United States District Courts
    • September 13, 1946
    ...Sovereignty — Natives Alsace — Meaning of the term “Native”— The Law of the United States.In United States ex rel. Gregoire v. Watkins, 69 F. Supp. 889, a District Court in New York held, on September 13, 1946, following the principle laid down in United States ex rel. d'Esquiva v. Uhl (Ann......

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