Marslin v. Schmucker, 4145.

• Decision Date: 17 April 1937
• Docket Number: No. 4145.,4145.
• Citation: 89 F.2d 765
• Parties: MARSLIN v. SCHMUCKER, United States District Director of Immigration, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

89 F.2d 765 (1937)

MARSLIN v. SCHMUCKER, United States District Director of Immigration, et al.

No. 4145.

Circuit Court of Appeals, Fourth Circuit.

April 17, 1937.

Jacob L. Morewitz, of Newport News, Va. (Morewitz & Morewitz, of Newport News, Va., on the brief) for appellant.

Russell T. Bradford, Asst. U. S. Atty., of Norfolk, Va. (Sterling Hutcheson, U. S. Atty., of Norfolk, Va., on the brief), for appellees.

Before NORTHCOTT and SOPER, Circuit Judges, and WYCHE, District Judge.

WYCHE, District Judge.

This is an appeal from an order of the District Court dismissing appellant's petition for writ of habeas corpus and remanding him to the custody of appellees for the purpose of being deported in accordance with an order of the Assistant Secretary of Labor previously made. The warrant of deportation was issued May 23, 1935, on the ground that the appellant, an alien seaman, had remained in the United States for a longer time than permitted under the act of May 26, 1924, or regulations made thereunder, having last arrived at the port of Jacksonville, Fla., June 27, 1934, on the American schooner Edward L. Swan, and thereafter remained within the United States for more than sixty days.

As was said by this court in Schmucker v. Martinez, 37 F.(2d) 315: "Alien seamen fall within clause 5 of the exceptions to the general provisions of section 3 of the Immigration Act of 1924 defining immigrants (8 U.S.C.A. § 203). Section 15 of the act provides that they shall be admitted for such time and under such conditions as may be by regulations prescribed to insure that at the expiration of such time, or upon failure to maintain the status under which admitted, they shall depart from the United States (8 U.S.C.A. § 215). But, except for temporary medical treatment, or subject to such regulations, alien seamen excluded from admission under the immigration laws are not permitted to enter the United States. Section 19 (8 U.S.C.A. § 166). The power to prescribe these regulations is vested by the act in the Commissioner General of Immigration subject to the approval of the Secretary of Labor (Section 24 8 U.S.C.A. § 222); and pursuant thereto the following regulation has been adopted, which has the effect of law, viz.: `Where a bona fide alien seaman, serving as such on a vessel arriving at a port of the United States, and permitted to enter temporarily the United States as a nonimmigrant pursuant to subdivision (5) of section 3 of the immigration act of 1924 solely in pursuit of his calling as a seaman, engages in any other calling or occupation for hire or profit, or enters into the coastwise trade of the United States, or remains within the United States for more than 60 days after such entry, he shall be deemed to have abandoned his status as a nonimmigrant within the meaning of said subdivison (5) of section 3 of the immigration act of 1924, and shall be taken into custody and deported at any time thereafter in accordance with the provisions of section 14 of said act.' Immigration Rules of March 1, 1927, rule 6, subdivision I, paragraph 2."

There can be no question that, under the provisions of this regulation, the appellant here, having remained within the United States for more than sixty days after his entry in the port of Jacksonville, Fla., on June 27, 1934, must be deemed to have abandoned his status as a nonimmigrant and is subject to deportation under section 19 of the act (8 U.S.C.A. § 166), unless protected by the three-year limitation therein contained. U. S. ex rel. Bardakos v. Mudd (D.C.) 33 F.(2d) 334. He is not so protected for the reason that his last entry into the United States was on June 27, 1934, less than three years before he was taken into custody. U. S. ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758.

Title 8 U.S.C.A. § 155, provides: "In every case where any person is ordered deported from the United States under the provisions of this subchapter, or of any law or treaty, the decision of the Secretary of Labor shall be final."

The findings of fact by the immigration authorities in this case were conclusive on the District Court. The court, in the review of the warrant of deportation and findings of fact by the Labor Department, cannot go beyond a consideration as to whether there was a denial of a fair hearing, whether the finding was supported by evidence, and whether there was an application of an erroneous rule of law by the immigration officials. Tassari v. Schmucker et al. (C.C.A.) 53 F.(2d) 570, and authorities therein cited.

The existence of legal grounds for deportation was found as a fact by the Assistant Secretary of Labor as a result of several full hearings given to appellant at some of which he was represented by counsel. The law was correctly applied by the Labor Department.

The evidence taken before the immigration inspectors fully justified the issuance of the warrant of deportation. Appellant admitted that he was a seaman, a native and citizen of St. Eustatius, Dutch West Indies, that he had never been a citizen of the United States, that he never took out American citizenship papers, that he had a Dutch passport and had gotten it at St. Eustatius, Dutch West Indies, about thirteen years ago, that he lost his passport in Galveston about six years ago and had never gotten another one. He admitted that he entered the United States last time at Jacksonville, Fla., on June 27, 1934, on the American schooner Edward L. Swan from Villa de Cora, Venesuela, and that he had not left the United States since that time; he signed on that ship in Newport News, Va., and made a trip to Venesuela, then to Jacksonville, Fla., where he was paid off; he was never admitted to the United States for permanent residence, that he intended to go off shore, the same as he had always been doing, and that he did not intend to stay in the United States.

The hearings given appellant were fair. At some of them he was represented by counsel. At each of the hearings he was informed of his rights. He was admitted to bail when first arrested upon his own recognizance. He was given every opportunity to answer the charge that he was an alien seaman and had remained longer in the United States than permitted by law.

Under such showing in the District Court the District Judge was bound to dismiss the petition of the appellant and remand him to the custody of appellees for deportation.

But appellant complains that the District Court did not require appellees to file a formal, written answer or return to the writ of habeas corpus.

While it is true that title 28 U.S.C.A. §§ 456, 457, and 458, provide "Any person to whom such writ is directed shall make due return thereof * * * shall certify to the court * * * before whom it is returnable the true cause of the detention of such party * * * and shall at the same time bring the body of the party before the judge who granted the writ," in our opinion there...