Del Guercio v. Delgadillo, 11225.

• Decision Date: 22 January 1947
• Docket Number: No. 11225.,11225.
• Citation: 159 F.2d 130
• Parties: DEL GUERCIO, District Director, Immigration & Naturalization Service, U. S. Department of Justice No. 16, v. DELGADILLO.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F.2d 130 (1947)

DEL GUERCIO, District Director, Immigration & Naturalization Service, U. S. Department of Justice No. 16, v. DELGADILLO.

No. 11225.

Circuit Court of Appeals, Ninth Circuit.

January 22, 1947.

James M. Carter, U. S. Atty., Ronald Walker, Attilio di Girolamo and Clark Stephens, Asst. U. S. Attys., and William Strong, Sp. Asst. U. S. Atty., all of Los Angeles, Cal. (Bruce G. Barber, Chief, Adjudications Div., Immigration and Naturalization Service, of Los Angeles, Cal., on the brief), for appellant.

Albert Lax, of San Pedro, Cal., for appellee.

Before GARRECHT, MATHEWS, and ORR, Circuit Judges.

ORR, Circuit Judge.

Appellee, being in the custody of appellant for the purpose of being deported to Mexico, the country of his birth, petitioned the trial court for a writ of habeas corpus. The writ was granted and after hearing appellee was ordered discharged. From the order of discharge, appellant, to whom we shall hereafter refer as the Immigration Director, appeals.

It appears that appellee, a citizen of Mexico, was admitted to the United States for permanent residence in 1923. He continued to reside here until June 1942. During that month he shipped as a member of the crew of the American ship "Andrew Jackson", then under the operational control of the United States Government, through the War Shipping Administration.

On July 12, 1942, the "Andrew Jackson" was torpedoed off the coast of Cuba. Appellee was rescued and taken to Cuba, where he remained one week. He was then flown to Miami, Florida, and admitted to the United States in transit by immigration officers for a period of not more than 30 days for the purpose of reshipping foreign from San Pedro, California.

On March 27, 1944, in the Superior Court of Los Angeles County, California, appellee was convicted of second degree robbery. He was thereafter sentenced to imprisonment from one year to life.

On June 23, 1944 a warrant for the arrest of appellee was issued charging him with being in the United States in violation of the Immigration Act of February 5, 1917.¹ Such violation consisted of being sentenced to imprisonment for one year or more upon conviction of a crime involving moral turpitude, said crime being committed within five years after entry into the United States.

Hearings on the deportation proceedings for the purpose of permitting appellee to show cause why he should not be deported were held at San Quentin Penitentiary where appellee was confined under the sentence imposed pursuant to the felony conviction of March 27, 1944. Said hearings were conducted by the Presiding Inspector of the Immigration Service. He found appellee's return to the United States at Miami in July 1942 constituted an "entry" within § 19(a), supra, and recommended that appellee be deported. The Board of Immigration Appeals adopted this recommendation and twice denied appellee's motions to reopen the administrative hearing.

Appellee was surrendered into the custody of the Immigration Director on August 25, 1945.

The question for determination is: Was the arrival of appellee at Miami, Florida, in July 1942, after landing in Cuba, an "entry" within § 19(a) of the Immigration Act, supra? We find that it was. The Supreme Court of the United States, in the case of United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, held that the word entry as used in § 19(a) of the statute "includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one." 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298.

In an earlier case involving the same statute, the Supreme Court said: "The word `entry' by its own force implies a coming from outside. The context shows that in order that there be an entry within the meaning of the Act there must be an arrival from some foreign port or place." United States ex rel. Claussen v. Day, 279 U.S. 398, 401, 49 S.Ct. 354, 355, 73 L.Ed. 758.²

Whether or not the alien intended to land on the foreign soil or intended to return to the United States is immaterial in considering whether his return to this country constitutes an "entry" within the Immigration Act. In Taguchi v. Carr, 9 Cir., 62 F.2d 307, we held that a fishermanalien, shipwrecked and ordered by his captain to land on an island of Mexico, upon subsequently returning to the United States made an entry within § 19(a), supra. And in Blumen v. Haff, 9 Cir., 78 F.2d 833, certiorari denied 296 U.S. 644, 56 S.Ct. 248, 80 L.Ed. 458, we held that aliens brought to this country by extradition from England had "entered" within the meaning of that section.

Appellee argues these cases are distinguishable because the aliens involved were not hazarding their lives in time of war on vessels under the control of the United States. We cannot agree that such a situation has any controlling effect.

If "any coming of an alien from a foreign country into the United States" is an "entry" (United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed. 1298) the circumstance that appellee was brought to the United States under the general supervision of the Government after landing on Cuban soil as a result of his wartime service cannot alter the fact that his return to Miami in July 1942 is within the definition of an "entry" as laid down by the Supreme Court. Appellee argues that it is difficult to reconcile one's conscience to the proposition that the Government will order a seaman into submarine infested waters knowing landings on foreign soil may be required and then brand the seaman's return as an "entry". This argument does not take into account the fact that...