In re Milanovic's Petition

• Citation: 162 F. Supp. 890
• Parties: Petition for Writ of Habeas Corpus for Mile MILANOVIC.
• Decision Date: 21 February 1957
• Court: U.S. District Court — Southern District of New York

162 F. Supp. 890

Petition for Writ of Habeas Corpus for Mile MILANOVIC.

United States District Court S. D. New York.

February 21, 1957.

Delson, Levin & Gordon, New York City, for relator. Ernest Fleischman, New York City, of counsel.

Paul W. Williams, U. S. Atty., for the Southern District of New York, New York City, for respondent. Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel.

PALMIERI, District Judge.

Relator, Mile Milanovic, is an alien who has been held excluded from entering the United States and ordered deported to Yugoslavia. Milanovic, claiming that he will be subject to physical persecution in Yugoslavia and that Yugoslavia is not the country "whence he came" to the United States, brought this petition for habeas corpus to test the destination of his deportation.

Mile Milanovic was born in Yugoslavia in September, 1925, and lived there with his parents until the outbreak of World War II. During the war, he served in the Royal Yugoslav Navy and also fought the so-called Titoists in Yugoslavia. His father was killed by the latter; his mother still lives in that country. After the war, he could not return to live under the prevailing régime and instead spent two and one-half years in a displaced persons camp maintained by England in Italy. He was released from the camp when he shipped out as a crewman on an Italian vessel. When the ship arrived in New York harbor, he was not paid for his three-month tour of duty and the ship captain threatened to return Milanovic to the displaced persons camp. Fearing the probability of being deported to Yugoslavia, Milanovic escaped from his confinement aboard ship, swam to a tugboat, and was taken to Ellis Island. He was held to have entered illegally, but avoided deportation by finding employment under a former captain in the Royal Yugoslav Navy who was then piloting a Panamanian vessel. After a number of voyages, the ship was sold and Milanovic left rather than take a drastic pay cut. Since the Belgian Government would not allow him to remain in the port where he was then located, the owners of the vessel transported him to New York where he expected to ship out for better wages. Upon his arrival in January, 1949, the Immigration Service detained him, held a hearing, and ordered Milanovic excluded as an immigrant not in possession of an unexpired immigration visa, and as an alien not in possession of a valid passport or other official travel document. Milanovic lost an appeal to the Board of Immigration Appeals, and then won a parole to give him an opportunity to become admitted by private Congressional bill. He also sought to comply with various other procedures for admission into the United States, but neither avenue brought success. The Immigration and Naturalization Service, unable to obtain consent from the Belgian Government for Milanovic's entry into that country, obtained consent from Yugoslavia, and in August, 1956, Milanovic was ordered deported to Yugoslavia. Subsequently, deportation was delayed to allow both Milanovic and the Service to seek his entry into a different nation, but all such attempts proved unavailing. When the Service again took action to enforce its order, Milanovic brought this petition.

The Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq., which is the law applicable to the matter before me, see United States ex rel. Harisiades v. Shaughnessy, 2 Cir., 1951, 187 F.2d 137, affirmed 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; United States ex rel. Wiczynski v. Shaughnessy, 2 Cir., 1950, 185 F.2d 347; United States ex rel. Pizzuto v. Shaughnessy, 2 Cir., 1950, 184 F.2d 666; cf. Imm. & Nat. Act § 405 (1952), 8 U.S.C.A. § 1101 note, contains two procedures for deportation.¹ An excluded alien is deportable under section 237, 8 U.S.C.A. § 1227(a), which reads as follows:

"§ 1227. Immediate deportation of aliens excluded from admission or entering in violation of law—Maintenance expenses

"(a) Any alien (other than an alien crewman) arriving in the United States who is excluded under this chapter, shall be immediately deported to the country whence he came, in accommodations of the same class in which he arrived, on the vessel or aircraft bringing him, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper. * * *"

An alien in the United States who is to be expelled is deportable² under section 243, 8 U.S.C.A. § 1253, which reads as follows:

"§ 1253. Countries to which aliens shall be deported—Acceptance by designated country; deportation upon nonacceptance by country

"(a) The deportation of an alien in the United States provided for in this chapter, or any other Act or treaty, shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States. * * * If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject national, or citizen if such country is willing to accept him into its territory. If the Government of such country fails finally to advise the Attorney General or the alien within three months following the date of original inquiry, * * *, whether that government will or will not accept such alien into its territory, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either—

"(1) to the country from which such alien last entered the United States;

"(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;

"(3) to the country in which he was born;

* * * * *

"(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.

"Deportation during war

"(b) If the United States is at war and the deportation, in accordance with the provisions of subsection (a) of this section, of any alien who is deportable under any law of the United States shall be found by the Attorney General to be impracticable, inadvisable, inconvenient, or impossible because of enemy occupation of the country from which such alien came or wherein is located the foreign port at which he embarked for the United States * * *, such alien may, in the discretion of the Attorney General, be deported as follows: (emphasis supplied)

* * * * *

"Withholding of deportation

"(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason."

Milanovic, although cognizant of the difference between exclusion and expulsion, asks that § 243(h) and the suspension of deportation provisions of § 244, 8 U.S.C.A. § 1254,³ be held applicable to the deportation pursuant to his exclusion. He relies for his argument on the broad wording of § 243, his seven year residence while paroled in this country, and the case of Ng Lin Chong v. McGrath, 1952, 91 U.S.App.D.C. 131, 202 F.2d 316. Except for the last, which presents an arguable point, these contentions clearly lack merit.

It has been settled that Congress has established, and that the Constitution requires, different procedures for those expelled from the procedures applicable to those excluded. Compare Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, and United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317, with Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576. Even though some provisions of § 243 purport by their terms to be relevant to the entire field of deportation, the broad terms are to be deemed modified by the specific requirements of § 237. Jew Sing v. Barber, 9 Cir., 1954, 215 F.2d 906, certiorari granted 348 U.S. 910, 75 S.Ct. 296, 99 L.Ed. 714, judgment vacated and case dismissed because moot, 1955, 350 U.S. 898, 76 S.Ct. 175, 100 L.Ed. 790; United States ex rel. Lue Chow Yee v. Shaughnessy, D.C.S.D.N.Y.1956, 146 F. Supp. 3; Dong Wing Ott v. Shaughnessy, D.C.S.D.N.Y.1956, 142 F.Supp. 379; United States ex rel. Camezon v. District Dir. of Imm. & Nat., D.C.S.D.N.Y.1952, 105 F.Supp. 32. Furthermore, the alien has to be within the United States to meet the literal requirements of § 243 (h).

It is also clear that an alien paroled into the United States has not "entered" the United States. See Imm. & Nat. Act § 212(d) (5), 8 U.S.C.A. § 1182(d) (5); Kaplan v. Tod, 1925, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585; Shaughnessy v. United States ex rel. Mezei, supra. Hence he is not "within the United States" so as to be able to invoke §§ 243(h) and 244. See last four cases cited in next preceding paragraph; cf., Ex parte Kurth, D.C.S.D.Cal., 28 F. Supp. 258, appeal dismissed on technical grounds, Kurth v. Carr, 9 Cir., 1939, 106 F.2d 1003 (no constitutional right to asylum).

In Ng Lin Chong v. McGrath, 1952, 91 U.S.App.D.C. 131, 202 F.2d 316, two Chinese immigrants were held excludable, but instead of being deported, were tried and convicted of a perjury they had committed during a prior residence in the United States. Subsequently, when the Government moved to deport them to China, they sought to get that destination changed by...