Glikas v. Tomlinson, Civil Action No. 21585.

• Decision Date: 01 February 1943
• Docket Number: Civil Action No. 21585.
• Citation: 49 F. Supp. 104
• Parties: GLIKAS v. TOMLINSON.
• Court: U.S. District Court — Northern District of Ohio

49 F. Supp. 104

GLIKAS v. TOMLINSON.

Civil Action No. 21585.

District Court, N. D. Ohio, E. D.

February 1, 1943.

Henry C. Lavine, of Cleveland, Ohio, for petitioner.

Roy C. Scott, Asst. U. S. Atty., of Cleveland, Ohio, for respondent.

FREED, District Judge.

The relator, an alien seaman, by application for a writ of habeas corpus, seeks to be released from the custody of the respondent who is detaining him on an order for deportation to Cardiff, Wales.

The record discloses the relator entered the United States illegally in 1938 when he deserted his ship which was flying the Greek flag. He was arrested in 1939 and ordered deported to Greece, the country of which he is a citizen and subject. In the order he was given the privilege of leaving the United States voluntarily for any country of his own choice other than contiguous territory. He reported to the immigration authorities that he had made arrangements with the master of the Kalypso Vergotti, a Greek vessel, to leave the United States for Greece. His voluntary departure was approved.

After he had boarded the Kalypso Vergotti, the master of the vessel, instead of heading for Greece, put in at Savannah, Ga., where he took on a load of scrap metal, and then shipped for Yokohama, Japan.

The relator protested aboard ship but remained on the vessel. The Kalypso Vergotti cleared Yokohama, put in at British Columbia, where she loaded lumber, then shipped for Cardiff, Wales.

At Cardiff, the relator was taken into custody by the British immigration authorities and detained for two weeks. He was given the option of going to Greece on another vessel, or returning to the Kalypso Vergotti. He adopted the latter course, signed the ship's articles, and returned to the United Staes aboard the Kalypso Vergotti, landing at Tampa, Fla., on August 17, 1940, less than a year after his 1939 departure.

In 1942 the relator was taken into custody for deportation and the order was issued which he here contends constitutes such gross abuse of discretion on the part of the Attorney General as to render it illegal and raise a question of law.

It is argued that because the Kalypso Vergotti did not take him to Greece as was required under the arrangement made with the master of the vessel, the deportation order of 1939 was not carried out and that his re-entry into the United States in 1940 was not a new and illegal entry. He contends, therefore, that he should be deported to Greece under the 1939 order.

The relator maintains further should the court find that he did enter the United States illegally in 1940, the order that he be deported to Cardiff, Wales, the foreign port at which the relator embarked for the United States, is contrary to law because he would not be permitted an unconditional entry to Wales.

There is no doubt of the fact that the relator is an alien illegally in the United States and that he is subject to deportation.

As a general rule the only question for determination by the court in a hearing upon a writ of habeas corpus challenging a deportation order is whether the alien has been accorded a fair hearing by the immigration authorities. The relator herein raises no question as to the fairness of the hearing accorded him.

There is ample authority, however, for the right of the court in such a proceeding to inquire whether the order for deportation to a specific place is contrary to the statutory requirement so as to make it necessary for the Attorney General to amend his order to comply with the law, but not to effect the petitioner's release from custody. See: Gorcevich v. Zurbrick, 6 Cir., 48 F.2d 1054; Darabi v. Northrup, 6 Cir., 54 F.2d 70, and Wenglinsky v. Zurbrick, 282 U.S. 798, 51 S.Ct. 35, 75 L.Ed. 719.

Mr. Justice Brandeis, in Bilokumsky v. Tod, 263 U.S. 149, at page 158, 44 S.Ct. 54, at page 57, 68 L.Ed. 221, quoting from earlier decisions, laid down the rule: "A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment."

An examination of the facts in the record leads the court to the finding that the relator re-entered the United States contrary to law in 1940. Unfortunate as it was for the relator, when he left the United States voluntarily, that the master of the Kalypso Vergotti deceived him in not carrying out their agreement to take him to Greece where he wanted to go, he cannot claim any right to return here because of the master's deception in taking him to Yokohama and other foreign ports. United States ex rel. Claussen v. Day, 279 U.S. 398, at 401, 49 S.Ct. 354, 73 L.Ed. 758. There is no provision in the law which insures the return of an alien to his native land or arrival in the country of his choice once he departs voluntarily.

The question for decision remains: Is the deportation order illegal as the relator contends, because Great Britain has imposed a condition upon his re-entry into Cardiff, Wales, the foreign port of embarkation, so as to require an amendment to the order?

The relator rests his contention upon the testimony of the witness, Edward J. Shaughnessy, Special Assistant to the Attorney General.

Mr. Shaughnessy testified that a serious problem had developed in the war effort of the United Nations as the result of wholesale desertions by seamen of vessels flying Greek flags both in United States and British ports. In spite of the great need for all available vessels for shipments of food and war materials, there are not enough Greek seamen to man the vessels.

In an effort to relieve this situation, the duly accredited representatives of the provisional government of Greece, resident in England, the representatives of the British government and the United States entered into an understanding to the effect that Greek seamen may be deported to England from the United States where they would be subject to the jurisdiction of a Greek maritime court.

Mr. Shaughnessy continued further that it was within the power of the Greek maritime court to order such seamen to serve on vessels of any of the United Nations, including Greece, or it could require the individual to report for duty along the coast, or, finally, it could order the seaman interned if the facts so warranted. He stated that to the best of his knowledge the relator, if deported pursuant to the order in question, upon his arrival at Cardiff, Wales, would be turned over...