Ex parte Halkides

• Decision Date: 07 August 1923
• Docket Number: 2387.
• Citation: 291 F. 585
• Parties: Ex parte HALKIDES.
• Court: U.S. District Court — Western District of New York

291 F. 585

Ex parte HALKIDES.

No. 2387.

United States District Court, W.D. New York.

August 7, 1923

Jay T Barnsdall, of Buffalo, N.Y., for petitioner.

William J. Donovan, U.S. Atty., of Buffalo, N.Y. (Samuel J. Dickey Asst. U.S. Atty., of Buffalo, N.Y., of counsel), for the United States.

HAZEL District Judge.

The petitioner is awaiting deportation to Greece, his native country, under order of deportation of the acting Secretary of Labor. He has applied for a writ of habeas corpus contending that he cannot legally be deported to Greece under the Immigration Act, but that his deportation must be to Canada, the country from whence he came.

It appears that in May, 1912, the petitioner admittedly deserted an ocean steamship, upon which he was employed as marine fireman, and landed at New Castle, New Brunswick, Canada that he afterwards resided in Canada most of the time, though in 1915 he entered the United States, returning to Canada in 1917, where he lived until July, 1922, when he illegally entered the United States at Niagara Falls (without a passport and without inspection). While here he sent money to Alice Tompkinson, who then lived in Canada, and induced her to enter the United States. She came, and they lived together as man and wife, as they had previously lived in Canada. He testified that he was not married to her, though his counsel claims there was a common-law marriage and a civil marriage under the laws of this state. The latter marriage was consummated by advice of counsel after the petitioner was taken into custody.

The finding of the Secretary of Labor on the evidence submitted to him was that, being an alien, the petitioner was found here in violation of the Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4a et seq.), that he was a contract laborer at the time of his entry, that he imported, or attempted to import a person for immoral purposes, that he entered without inspection, and also that he was a person likely to become a public charge.

The petitioner has never applied for Dominion citizenship. The government claims that it does not appear affirmatively that he was domiciled in Canada, and accordingly, under section 20 of the Immigration Act of February 5, 1917 (39 Stat. 890), he must be transported to the trans-Atlantic or trans-Pacific port from which he embarked for the United States. This originally read as follows:

'The deportation of aliens * * * within the United States after entry and found to be illegally therein, provided for in this act, shall be to the trans-Atlantic or trans-Pacific ports from which said aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which said aliens embarked for such territory.'

Construing that provision, it was said by this court in Ex parte Jung Sew, 221 F. 500:

'This provision would seem to indicate the legislative intent that aliens unlawfully entering the United States may be returned to the country of their birth, if they embarked from there for the United States or territory bordering thereon.'

In affirming the Jung Sew Case, the Circuit Court of Appeals said that, since the inspector had found that the petitioner had entered surreptitiously without...