Carmichael v. Delaney, 11748.

• Citation: 170 F.2d 239
• Decision Date: 18 October 1948
• Docket Number: No. 11748.,11748.
• Parties: CARMICHAEL, District Director, U. S. Department of Justice, Immigration and Naturalization Service, v. DELANEY.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

170 F.2d 239 (1948)

CARMICHAEL, District Director, U. S. Department of Justice, Immigration and Naturalization Service, v. DELANEY.

No. 11748.

United States Court of Appeals Ninth Circuit.

October 18, 1948.

James M. Carter, U. S. Atty., and Ronald Walker and Clyde C. Downing, Asst. U. S. Attys., all of Los Angeles, Cal. (Bruce G. Barber, Dist. Adjudications Officer, Imm. & Nat. Service, of Los Angeles, Cal., on the brief), for appellant.

David C. Marcus, of Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges.

HEALY, Circuit Judge.

Appellee arrived on the Steamer Schenectady in the harbor of San Pedro on May 20, 1945. He was there duly held by the immigration authorities on their claim that he was an alien entering from a foreign port or country without visa or passport as required by certain acts of Congress and regulations thereunder.¹ Exclusion proceedings before a board of special inquiry were instituted on these grounds, and after a hearing which resulted in a finding of alienage appellee's exclusion was ordered. The ruling was subsequently upheld by the Board of Immigration Appeals.

Meanwhile appellee, alleging that he is a native-born citizen of the United States, petitioned the district court for a writ of habeas corpus. Evidence on behalf of the petitioner was received after the termination of the administrative proceeding. The record made before the board of special inquiry, being incorporated in the director's return to the writ, was also before the court for its consideration. The court found that appellee is an American citizen and ordered his discharge from custody. D.C., 72 F.Supp. 312. The director appeals.

The judge, while treating the proceeding before the board of special inquiry as properly an exclusion proceeding, accorded to the petitioner a judicial trial of his claim of American nativity. The director contends that this was error. He says that the administrative finding that appellee is not a citizen is final and that no ground exists for judicial intervention. Ordinarily, in an exclusion proceeding we understand the law to be as the director contends it to be, United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Tang Tun v. Edsell, 223 U.S. 673, 32 S.Ct. 359, 56 L.Ed. 606; Immigration Act of February 5, 1917, § 17, 8 U.S.C.A. § 153;² and if this were all there is to be said of the case we would be obliged to reverse the trial court inasmuch as the administrative finding of alienage was substantially supported by the evidence before the board.

But this is by no means all there is to be said of the matter. From the record on appeal two questions emerge, (1) whether in legal contemplation an entry was involved, and (2), assuming an entry, whether the principle of administrative finality ordinarily thought applicable in exclusion cases governs here. If either question, or both, be answered in the negative the judgment below should be affirmed. These questions will be discussed in the order stated. A summary of the evidence is essential to an understanding of them.

1. Preliminarily, it may be said that except on the point of appellee's place of birth the facts developed below are not seriously in controversy. The board found that he was born in Cork, Ireland, and that he had not been naturalized in this country. The court found that he was born in Brooklyn, New York, on November 14, 1898, the son of John and Margaret Bridget Delaney; also that his mother died a week after his birth, and that his father and stepmother took him as an infant to Ireland where he grew up. When he was in his teens he returned, or at any rate came, to the United States and as of the time of the trial had resided here continuously for thirty years. He never married, and no claim is made that he was ever charged with crime. He followed various occupations, working for the most part in shipyards on the Atlantic and Pacific coasts. Once, in the year 1924, he had shipped as a sailor aboard an American vessel and had returned on November 17 of that year as a seaman on the British ship Ninian. This return marked his last entry prior to the San Pedro entry, if the latter can be termed such. From 1937 on he made his home in Long Beach, California, keeping at his living quarters there his personal belongings and effects.

At the time of the inauguration of the selective service system in 1940 he was beyond draft age. In 1943 (the precise date is not clear) he enlisted in the United States Maritime Service, taking the oath of allegiance to the United States. Jurisdiction and control over all merchant shipping had theretofore been assumed by the government acting through the War Shipping Administration.³ After a period of service aboard a coastwise vessel appellee was directed by the War Shipping Administration to pursue a course in a school for marine engineers conducted by the government at San Francisco. Upon completion of the training the United States Coast Guard (under whose jurisdiction those of his status were) ordered him into service aboard the SS Schenectady, an armed oil tanker. On this vessel he was classified as second assistant engineer with the rank of Lieutenant, his compensation being paid out of the United States Treasury. On June 10, 1944 the Schenectady departed to rendezvous with American task forces upon the high seas, supplying them with oil. Appellee served with the ship on her many wanderings until her return to San Pedro on May 20, 1945, when his troubles with the Immigration Service began.

The Schenectady's duties carried her to Australia, the Persian Gulf, New Zealand, the Marshall Islands, Curacao in the Dutch West Indies, through the Panama Canal again to the Marshall, Caroline and Admiralty Islands and Uluthi, thence home. The ship participated in battle engagements in the Marshall Islands and at Uluthi. For his part in this odyssey appellee was awarded the Atlantic War Zone Bar, the Mediterranean Middle East War Zone Bar, the Pacific War Zone Bar and the Merchant Marine Combat Bar, the last being awarded for "participation in direct enemy action."

At the time of the trial below Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, had not yet beeen decided. Whether, in light of that decision, appellee's San Pedro arrival can properly be regarded as an "entry" may be open to debate. But the Delgadillo case aside, there can be no fair doubt of the morals of the situation confronting the court. We are not able to contemplate with indifference the disquieting fact that when this man came home from his service in the war zones of the world, the nation which had conferred on him a series of decorations in recognition of his services unceremoniously shut the door in his face — not on the claim that he had offended against its institutions or its laws but merely because he lacked paper credentials which, in the circumstances, one could hardly expect him to possess. He was not the traditional sailor pursuing his vocation in a world of peaceful commerce; he was serving the nation in wartime in a task as essential and as perilous as that of a soldier in the zone of battle.

When he was ordered into the service of the Schenectady and later to sea, he did not voluntarily elect a foreign destination. Neither he nor anyone else on board knew at the time of the ship's departure what her destination was to be. That information, because of the necessity of secrecy, was subsequently communicated by wireless. The movements of the ship itself, after leaving its home port, were determined by the Navy, under whose orders the vessel remained throughout its varied wanderings.

Does the return of a resident under these circumstances constitute an entry within the intendment of the immigration laws? We think not. It is true that until very recently, except for an enlightened decision by the Second Circuit, Di Pasquale v. Karnuth, 158 F.2d 878, the federal courts had fallen into the habit of treating every arrival from a foreign port or place as an entry, no matter what the circumstances or however harsh and unanticipated might be the consequences to the individual. The Supreme Court itself, as it has recognized, was not without responsibility for the propagation of this extreme view. But in Delgadillo v. Carmichael, supra, the Court brought a needed measure of restraint into the interpretation of the law on the subject.

The element of volition is lacking in this instance as it was in the Delgadillo case, although the facts are otherwise unlike. To paraphrase the opinion in that case, it was not appellee's voluntary act but the exigencies of a war in which he was a participant that brought him to foreign ports. Of course one may argue, as in effect the government does, that he was under no compulsion to enter the United States Maritime Service in the first place and that he ought to have anticipated his being ordered into the service of a ship destined for foreign waters. But we are not in these circumstances prepared to carry volition to such lengths.

We have remarked that while the Delgadillo case and this one involve the same principle, the facts are in most respects different. There is one striking difference which serves to accentuate the extreme to which the Service has permitted itself to go in this instance. In the Delgadillo matter there was a measure of moral justification for the Attorney General's treatment of the alien's return as an entry. Subsequent to the return he had committed the crime of robbery and was convicted of it; and as this court observed in the decision later reversed by the Supreme Court it was for his crime, not for his having been the fortuitous victim of the perils of the sea, that his expulsion was ordered. His shipwreck was merely a condition, not the cause, of his attempted banishment. It is impossible to find in the activities of the Service in the present case any comparable justification. In truth, appelle...