Caranica v. Nagle
| Decision Date | 05 November 1928 |
| Docket Number | No. 5569.,5569. |
| Parties | CARANICA v. NAGLE, Commissioner of Immigration. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Clifford A. Russell and Donald McKisick, both of Sacramento, Cal., for appellant.
Geo. J. Hatfield, U. S. Atty., and Geo. M. Naus, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
This is an appeal from an order denying a petition for a writ of habeas corpus in an immigration case. It was the second application of the kind addressed to the court below. In the former case the court denied the petition for the writ, the order was affirmed by this court on appeal, and certiorari was denied by the Supreme Court. Caranica v. Nagle (C. C. A.) 23 F.(2d) 545; Id., 48 S. Ct. 437, 72 L. Ed. ___. Immediately upon denial of the writ of certiorari by the Supreme Court and the going down of the mandate from this court, the appellant surrendered himself into the custody of immigration officers and applied for a second writ. His petition avers that the warrant of deportation finds that he is a native and citizen of Greece, and directs that he be deported to that country; that in truth and in fact he is not a native or citizen of Greece, all of which conclusively and indisputably appears from the evidence taken in the proceedings before the immigration officers and the Department of Labor, on which the warrant was based; that the evidence taken in said proceedings conclusively shows that the petitioner is a native of Macedonia, which was a Turkish province at the time of his birth, and that it is a matter of historical knowledge, of which the court should take judicial notice, that, since the year 1919, Macedonia has been partitioned and divided up among several countries. It is then averred on information and belief that the government of the republic of Greece has refused to issue any passport for the removal of the petitioner to Greece, and will refuse to allow him to enter that country, for the reason that he is not a native or citizen thereof.
In Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967, the court left open the question whether that part of a deportation order which determines the destination of the alien is open to inquiry on habeas corpus; but, assuming for the present that the question is open to inquiry, and assuming, further, that the appellant can raise the question at this time, having failed to urge or suggest it before the Secretary of Labor, or in the...
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