Petition of Hersvik
| Decision Date | 13 August 1924 |
| Docket Number | No. 6610.,6610. |
| Citation | 1 F.2d 449 |
| Court | U.S. District Court — Southern District of California |
| Parties | Petition of HERSVIK et al. |
On June 4, 1924, petitioners were alien residents of the United States, and had been such residents for a period of more than three years immediately prior to said date. They were seamen by occupation. On June 4, 1924, they shipped on an American vessel as a part of the crew, engaging for a voyage to the port of Antofagasta, in the republic of Chile, and return. Upon the arrival of the ship on its return voyage, on the 11th day of July, 1924, at the port of San Pedro, Cal., petitioners were detained by the immigration officers as being aliens not entitled to be admitted to the United States.
Petitioners do not come within the class known as immigrants, defined in section 3 of the Immigration Act of 1924 as being aliens "departing from any place outside the United States destined for the United States," for they did not depart from any foreign place, but departed from the United States for a continuous voyage which ended in a United States port. They were not subject to the collection of a head tax by the express rules of the immigration department, which excepts from that tax (rule 1, subdivision e) "aliens who, starting from a port of the United States, return thereto after a continuous sea trip or a cruise without change of vessel." Had they remained in the United States, they could not have been deported, for they had resided here for a period of three years. Section 34, Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼s).
The position of the government is that, having departed beyond the territorial jurisdiction of the United States, the seamen abandoned any right which they had acquired to here remain, and that, upon their return, they should be treated as though they were entering for the first time. If such is the legal situation attendant upon the facts, then petitioners should be remanded to the custody of the immigration authorities, to be by them permitted to reship in foreign commerce, or be dealt with as those officers may otherwise determine under authority of the immigration law.
The endeavor here must be to ascertain the intent of the law, for in none of its particular terms does it exactly cover the case of the petitioners. Here the seamen, in the pursuit of their calling and for the purpose of earning their livelihood, engaged themselves to an American vessel for a...
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