Ex parte Delaney

• Citation: 72 F. Supp. 312
• Decision Date: 21 February 1947
• Docket Number: No. 4591.,4591.
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte DELANEY.

72 F. Supp. 312

Ex parte DELANEY.

No. 4591.

District Court, S. D. California, C. D.

February 21, 1947.

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

James M. Carter, U. S. Atty., Robert Wright, Asst. U. S. Atty., and Bruce G. Barber, Chief, Adjudications Div., U. S. Immigration and Naturalization Service, all of Los Angeles, Cal., for respondent.

J. F. T. O'CONNOR, District Judge.

John Delaney, also known as John Joseph Delaney, through his counsel, David Marcus, Esq., filed in this court on July 3rd, 1945, his petition for a writ of habeas corpus alleging:

(1) That he was detained, confined and restrained of his liberty, illegally, by the Department of Justice, Immigration and Naturalization Service, at Terminal Island, Los Angeles, California, District No. 16; and

(2) That he was a native-born American citizen born on or about the 14th day of November, 1898, at Brooklyn, New York. The petition for the writ of habeas corpus was granted, and made returnable in this court on July 9th, 1945.

The United States Department of Justice, Immigration and Naturalization Service, Los Angeles, California, District No. 16, respondent herein, through Albert Del Guercio, District Director, filed its return thereto, on July 7th, 1945, denying these allegations, to which there was a traverse, filed by petitioner on December 28th, 1946, to said return, and a supplemental return filed by respondent on December 20th, 1946. There was a hearing in court thereon, and thereupon the matter was taken under submission on briefs to be filed, which briefs have been filed and duly considered by the court.

Two Issues in Case:

This is an exclusion proceeding, as distinguished from a deportation proceeding;¹ and there are just two issues involved herein; namely

(1) When the petitioner, John Delaney, arrived at the Port of San Pedro, California, on May 20th, 1945, from a foreign country, namely Australia and other foreign ports, as a member of the crew of the vessel "Schenectady", a vessel in the Maritime Service of the United States serving in the capacity of second assistant engineer² did he, as a matter of law, make an entry (or reentry) into the United States as that word is defined in Sec. 19(a) of the Immigration Act of February 5, 1917,³ assuming that he was an alien at that time; and

(2) Was John Delaney at that time an American citizen by jus soli, in fact and in law, or an alien immigrant not in possession of a valid immigration visa, as required by the Immigration Act of May 26, 1924, 8 U.S.C.A. §§ 166, 201 et seq., the Alien Registration Act of 1940, 8 U.S.C.A. §§ 155, 451 et seq., and Executive Order No. 8766, June 3, 1941.

There is no dispute about the fact that the SS. "Schenectady" went to Australia, the Persian Gulf, New Zealand, Philippine Islands and the Marshall Islands, and was in Curacao, Dutch West Indies and then went back through the Panama Canal to the Marshall and the Admiralty Islands and Ulithi, Caroline Islands, and returned to San Pedro and arrived therein on May 20th, 1945; and that John Delaney was in battle engagements in the Marshall Islands and in Ulithi. The departure crew list (supra) lists John Delaney as a United States citizen and the purpose of the voyage of the SS. "Schenectady" was to supply oil to the United States Navy.⁴

John Delaney testified at the hearing on his application for the writ of habeas corpus that, prior to this voyage, he took an oath of allegiance to the United States, in 1943, in joining the United States Maritime Service; that, while in the service of the United States Maritime Service, he was paid by the United States government; that his checks came from the United States Treasurer in Washington, D. C., during his entire service with the United States Maritime Service extending about a year and six months; that he did not make any voluntary trips from the United States; that the United States Coast Guard assigned him to the SS. "Schenectady" as engineer; that the Coast Guard was a part of the United States Navy; that the orders to go to sea came from the United States Coast Guard; and that the penalty for refusing to obey orders, in time of war, would be court martial.⁵

John Delaney further stated that, when the SS. "Schenectady" departed from the United States on June 10th, 1944, he intended to return to the United States, and that he remained on this vessel from June 10th, 1944, to May 20th, 1945. The court understands him to mean that he was not transferred to another vessel in the interim; and, while there is apparently no evidence in the record that John Delaney disembarked at any of these foreign ports, the court will assume that he did at every opportunity, although whether he did, or did not, would be immaterial for the purpose of this opinion, on the authority of United States ex rel. Roovers v. Kessler, 5 Cir., 90 F.2d 327, 328.⁶

Upon the return of the S.S. "Schenectady" at the port of San Pedro, California, on May 20th, 1945, John Delaney, as a member of the crew⁷ had no passport and could not prove his citizenship, American or otherwise, to the satisfaction of the Immigration officers, and he was held for a Board of Special Inquiry to determine his nationality, although John Delaney had certain documentary evidence indicating his American nationality.⁸

Exclusion proceedings:

Although the Government has attached to its Return to Writ of Habeas Corpus exhibit A, which purports to be a copy of a directive to the owner, agent, Master, etc. of the SS. "Schenectady" for the delivery of John Delaney to the Immigration Station at Terminal Island for further examination, receipt of which notice is purported to have been acknowledged by the Master, W. G. Friar, at 10:15 A.M., May 20th, 1945, John Delaney gave the court to understand that when the vessel reached San Pedro, California, and docked there on May 20th, 1945, he left the ship and went to his home in Long Beach, California, the same day, and stayed there all night;⁹ and the next day (May 21st, 1945) when he endeavored to return to the ship, he found it out in the harbor; and that upon calling up the shipping office at San Pedro, where the ship was, he was informed that he was to report to the Immigration Station, that being the following day (May 21st, 1945) after his arrival in the United States at San Pedro, California, giving the court to understand that up to this time he was absolutely unaware of the fact that the Immigration authorities wanted him. On the basis of John Delaney's testimony, he had entered the United States without any interception whatsoever, and, if this be a fact, he certainly must have entered the United States or technically have made a landing. There is no evidence that he tried to avoid his interception, and it would seem to the court that deportation proceedings, rather than exclusion proceedings, would have been the proper proceeding, although the court is not passing on this point in these proceedings. He further stated that he went to the Immigration office while in uniform, and the Immigration official thereupon took him into, and kept him in, custody for six weeks without permitting him to communicate with any one, until he was finally released on his application for a writ of habeas corpus, which his jailor at first refused to honor.

The Government, notwithstanding the fact that petitioner John Delaney was permitted to leave the vessel and remain at his home over night in Long Beach, California, takes the position that this proceeding is rightfully an exclusion proceeding, rather than a deportation proceeding, for the reason, obvious to the court, that in an exclusion proceeding involving the deportation of an alien for an unlawful entry, the burden is upon the alien to prove his citizenship (United States ex rel. Polymeris et al. v. Trudell, 1932, 284 U.S. 279, 52 S.Ct. 143, 76 L.Ed. 291); whereas in a deportation proceeding, where citizenship is claimed, the burden of proof is upon the Government to prove alienage. United States v. Sing Tuck et al., 1904, 194 U.S. 161, 24 S. Ct. 621, 48 L.Ed. 917.

The Government, in support of its contention that exclusion proceedings were proper, cites Sec. 15 of the Act of February 5, 1917, as amended, 39 Stat. 885, 8 U. S.C.A. § 151, providing in part as follows: "Section 15. That upon the arrival at a port of the United States of any vessel bringing aliens it shall be the duty of the proper immigration officials to go or to send competent assistants to the vessel and there inspect all such aliens, or said immigration officials may order a temporary removal of such aliens for examination at a designated time and place, but such temporary removal shall not be considered a landing * * *." (Italics supplied.) citing United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 646, 49 L.Ed. 1040 and Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 339, 35 L.Ed. 1146, but the court, on the basis of John Delaney's statement, does not believe he is subject to this section; but will hold that exclusion proceedings in this case were proper to determine the questions involved.

Basis for holding John Delaney for a Board of Special Inquiry:

The action in holding the applicant, John Delaney, for a Board of Special Inquiry was based upon a communication from Perry M. Oliver, Director of Administrative Services, General Office, dated September 25th, 1944;¹⁰ this communication being in effect an information sheet containing the data given by John Delaney at the time of his registration under the Alien Registration Act of 1940, a copy of which has been made a part of the record of the Board of Special Inquiry, marked Ex. No. 2.

This Board of Special Inquiry denied the application of John Delaney for admission to the United States, and moved that he be excluded, on the grounds that (1) he is an alien immigrant not in possession of an unexpired immigration visa, as required by the Immigration Act of 1924, and the Alien...