Delany v. Moraitis

Decision Date27 May 1943
Docket NumberNo. 5056.,5056.
PartiesDELANY, District Director of Immigration, v. MORAITIS.
CourtU.S. Court of Appeals — Fourth Circuit

K. Thomas Everngam, Asst. U. S. Atty., of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., of Baltimore, Md., and Albert E. Reitzel, Acting Gen. Counsel, U. S. Immigration and Naturalization Service, of Washington, D. C., on the brief), for appellant.

Wilfred T. McQuaid, of Baltimore, Md., for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a habeas corpus proceeding brought by an alien seaman held under a warrant of deportation issued under the immigration laws. Petitioner is a citizen of Greece who embarked for this country from a port in Spain. That country not being willing to receive him, the Attorney General exercised the option under the statute, 8 U.S.C.A. § 156, to deport him to Greece, the country from which he came, and a warrant of deportation was issued to that effect. At the hearing before the District Judge, it was stated in behalf of the immigration authorities that, as Greece had been overrun by Germany and it was not possible to deport petitioner to Greece, it had been arranged to deliver him into the custody of the Greek government in exile in England. The District Judge entered an order dismissing the writ on condition that the government should not deport the petitioner to any country other than Greece under the warrant for his deportation. See 46 F.Supp. 425. The acting District Director of Immigration has appealed, complaining of the order in so far as it imposes the condition.

Appellant entered this country as an alien seaman in the year 1939. He overstayed his time and was clearly deportable as an alien whose entry was unauthorized. Section 14 of the Immigration Act of 1924, 8 U.S.C.A. § 214 provides that any alien not entitled to enter the United States or who has remained therein for a longer time than permitted under the act or regulations made thereunder, "shall be taken into custody and deported in the same manner as provided for in sections 19 and 20 of the Immigration Act of 1917". Section 19 of the Immigration Act of 1917, 8 U.S.C.A. § 155, provides that any alien of the deportable classes "shall, upon the warrant of the Attorney General, be taken into custody and deported". And section 20 of that act, 8 U.S.C.A. § 156, provides that: "The deportation of aliens provided for in this chapter shall, at the option of the Attorney General, be to the country whence they came or to the foreign port at which such aliens embarked for the United States".

Appellant cannot be deported to Spain, the country from which he embarked for the United States, as that country will not receive him. He cannot be deported to the territory of Greece, since that territory is under German domination. The question presented by the appeal, therefore, is whether, under the statute, the petitioner must be allowed to remain in this country, where he has no right to remain under our laws, or whether the statute will be complied with if he be returned to the political dominion and control of the country from which he came. We think that the latter is the case, and that the condition in the order appealed from should be stricken from it.

It is true, of course, that the term "country" as used in the statute must be construed, ordinarily, to refer to the territory from which the alien came. Mensevich v. Tod, 264 U.S. 134, 136, 44 S.Ct. 282, 68 L.Ed. 591. But a man's "country" is more than the territory in which its people live. The term is used generally to indicate the state, the organization of social life which exercises sovereign power in behalf of the people. United States v. The Recorder, 27 Fed.Cas. page 718, 721, No. 16,129. Ordinarily the state exercises sovereignty only within the territory occupied by its people; but a different situation is presented when the territory is overrun by its enemies and its government is in exile in the territory of a friendly nation exercising power in international matters in behalf of its nationals. In such case, the government in exile has taken over the only exercise of sovereign power left to the people of the country and is the only agency representing the country with which a foreign government can deal.

It must be remembered in this connection that the deportation of an alien is not a mere matter of taking him beyond the seas and setting him down on foreign soil. Saksagansky v. Weedin, 9 Cir., 53 F.2d 13. It must be carried out through arrangements made with the foreign government. These arrangements are matters arising in the international relationships of the nation; and these international relationships the governments in exile are thoroughly competent to deal with. They are true governments set up and organized to protect the interests of their nationals, and their powers with regard thereto are recognized and respected by the friendly nations in whose territory they function. They exercise sovereign power, moreover, not only with respect to their nationals, but also with respect to the vessels of their countries; and it has long been recognized that a vessel partakes of the character of national territory. It appears in this case that the government of the United States recognizes the Greek government functioning in England as the government of Greece and deals with it as such. In the matter of deporting an alien who has come to this country from Greece, the government must deal with the Greek government in England; and when, under agreement with that goverment, it arranges to return the alien into its power, it is not unreasonable to treat such delivery as a deportation to the "country" whence he came in accordance with the statutory requirement.

The word "country" as used in the statute is not a technical or artificial one, and the sense in which it is used must be determined by reference to the purpose of the particular legislation. Burnet v. Chicago Portrait Co., 285 U.S. 1, 5, 6, 52 S.Ct. 275, 277, 76 L.Ed. 587. In that case, which dealt with a credit for a tax paid to the State of New South Wales under a statute allowing credit for taxes paid to a foreign country, the Supreme Court, speaking through Mr. Chief Justice Hughes, said:

"The word `country', in the expression `foreign country', is ambiguous. It may be taken to mean foreign territory or a foreign government. In the sense of territory, it may embrace all the territory subject to a foreign sovereign power. When referring more particularly to a foreign government, it may describe a foreign state in the international sense, that is, one that has the status of an international person with the rights and responsibilities under international law of a member of the family of nations; or it may mean a foreign government which has authority over a particular area or subject-matter, although not an international person but only a component part or a political subdivision, of the larger international unit. The term `foreign country' is not a technical or artificial one, and the sense in which it is used in a statute must be determined by reference to the purpose of the particular legislation." (Italics supplied.)

The purpose of the deportation statute with which we are dealing is to remove from this country an alien who is here contrary to our laws, and place him under the jurisdiction of the political power to which he owes allegiance. If the word "country" as used in the statute be construed to include the government in exile of a country whose territory has been overrun by the common enemy, the purpose of the statute can be carried out and the alien placed under the jurisdiction of the country to which he owes allegiance and which is charged...

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