Ex parte Van Laeken, 28339.

• Decision Date: 05 November 1948
• Docket Number: No. 28339.,28339.
• Citation: 81 F. Supp. 79
• Parties: Ex parte VAN LAEKEN.
• Court: U.S. District Court — Northern District of California

81 F. Supp. 79

Ex parte VAN LAEKEN.

No. 28339.

United States District Court N. D. California, S. D.

November 5, 1948.

Gladstein, Andersen, Resner & Sawyer and Lloyd E. McMurray, all of San Francisco, Cal., for petitioner.

Frank J. Hennessy, U. S. Atty. and Edgar R. Bonsall, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.

GOODMAN, District Judge.

On June 16, 1932, petitioner, a native of Belgium, was admitted to the United States at Honolulu, T. H., as a quota immigrant. Since that time he has followed his calling as a seaman, leaving and returning to this country on many foreign voyages. Upon his petition for naturalization, he was denied citizenship by this court on October 2, 1938. In re Van Laeken, 22 F.Supp. 145. Refusal of citizenship was on the ground that petitioner was attached to the principles of Communism and was not attached to the principles of the Constitution. Upon the same grounds he was again denied citizenship in the Superior Court of the State of California on June 4, 1947.

Upon his return to the United States from a foreign voyage on the SS "Augustine Daly" on July 22, 1948, he was denied admission under the authority of Presidential Proclamation No. 2523 of November 14, 1941, 8 C.F.R. 175.57, and is now detained by the Immigration Authorities. The Attorney General has directed that petitioner be granted a hearing before a Board of Special Inquiry for the purpose of determining whether he should be allowed entry to the United States.

Prior to hearing before the Board of Special Inquiry, petitioner sought, by this petition for the writ of habeas corpus, his release from his present detention. The ground of his petition is that he is a lawful resident of the United States and may not be denied entry. He claims that, although he may hereafter be proceeded against for deportation, he may not lawfully be denied entry.

Upon filing of the petition, the court ordered the District Director of the United States Immigration and Naturalization Service to show cause why the petition should not be granted. The return to the order to show cause is that petitioner is detained pursuant to 8 C.F.R. 175.57 by the Attorney General for a Board of Special Inquiry.

It is not claimed that an alien may not be refused admission, if "such entry would be prejudicial to the interests of the United States."^* But the petitioner claims he is a lawful resident and may not be denied entry as if he were an alien seeking admission. His lawful residence was not lost, he asserts, because of his voyage as a seaman to foreign shores.

The authorities, however, fully sustain the right of the Immigration Authorities to treat his return on a vessel from abroad, to these shores, as an entry. United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298; United States ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758. True, in Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, the Supreme Court held this doctrine inapplicable to a seaman, where the foreign journey was involuntary. But here the journey abroad was voluntary. The exception to the rule, declared by the Supreme Court, did not vitiate the rule itself.

A further exception to the rule is recognized in our Circuit in Carmichael v. Delaney, 170 A.2d 239 and in Lee Fong Fook v. Wixon, 170 F.2d 245, in cases where the excluded applicant based his claim to admission upon the ground that he was a citizen of the United States. These exceptions, however, do not apply in petitioner's case.

The reason for the rule, that each return by an alien to the United States...