United States ex rel. Carapa v. Curran

Citation297 F. 946
PartiesUNITED STATES ex rel. CARAPA v. CURRAN, Commissioner of Immigration.
Decision Date03 March 1924
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

[Copyrighted Material Omitted]

Whitestone & Gillin, of New York City, for relator.

William Hayward, U.S. Atty., of New York City (James C. Thomas, Asst U.S. Atty., of New York City, of counsel), for respondent.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

A writ of habeas corpus was obtained in behalf of the relator for the purpose of obtaining the relator's release from the custody of the Commissioner of Immigration of the port of New York and her entry into the United States as an Italian subject. It appears that the relator is a native of the Island of Calymnos and as such applied for admission into the United States. That prior to such application the Lausanne Treaty had been entered into between Italy and Turkey, and that under the terms of that treaty the Island of Calymnos which up to that time belonged to Turkey, was transferred to Italy. The immigration authorities denied the relator the right to enter this country on the theory that she came from 'other Asia' and that the quota was exhausted. The quota from Italy was not exhausted, but as there was no official record in the Departments at Washington showing that the Lausanne Treaty had been ratified by Italy it was thought that she had no right to enter as an Italian. It was contended on her behalf that by virtue of the comity of nations doctrine the United States could take notice of the cession of the Island to Italy and that the alien should be admitted as she came to this country with an Italian passport.

A hearing on a writ of habeas corpus was had in the District Court for the Southern District of New York. It was claimed that the relator had not been given a fair hearing by the immigration officials. The District Court dismissed the writ and remanded her to the custody of the Commissioner of Immigration. An appeal has been taken from the order entered in the District Court and is now pending in this court. The relator by motion has applied to this court for admission to bail pending the determination of the appeal. In applying for admission to bail, it is represented that the relator is ill and is in addition suffering from nervous prostration, and that it may be dangerous to comple her to remain on Ellis Island pending the final disposition of her appeal, and the attention of the court is called to the fact that she has brothers and other relatives within the United States, and that she has been unable to obtain the permission of the Ellis Island authorities allowing an outside physician to make an examination of her.

The Immigration Act provides that any alien who arrives at a port of the United States and is not entitled to land in the opinion of the examining immigrant inspector shall be 'detained' for examination in relation thereto by a board of special inquiry. That board has authority to determine whether the alien thus 'held' shall be allowed to land or shall be deported. From their decision an appeal may be taken to the Secretary of Labor, and his decision, sustaining an order of deportation, is declared by the act to be final. And all aliens illegally arriving are to be immediately sent back after the fact that they have illegally arrived has been determined. Act of February 5, 1917, St. vol. 39, part 1, c. 29 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4a et seq.). Pending the final determination of the alien's right to land and the immigration officials' right to deport he is restrained of his liberty. An alien who is held for deportation by the authorities and who has not had a fair hearing and been given the opportunity to establish his right to enter the country is wrongly imprisoned by officials of the United States. Chin Yow v. United States, 208 U.S. 8, 13, 28 Sup.Ct. 201, 52 L.Ed. 369.

And the statutes of the United States not only give to judges of District Courts the power within their respective jurisdictions to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty (Rev. St. Sec. 752 (Comp. St. Sec. 1280)), but the Immigration Act of 1917 expressly provides, in section 25, that the District Courts are invested with full jurisdiction of all causes arising under any of the provisions of the act. St. vol. 39, part. 1, c. 29, p. 893 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 4289 1/4p). So that whenever the Secretary of Labor exceeds his powers in ordering the deportation of an alien, the latter, being deprived of his liberty and his right of entry under the law, may demand his release upon habeas corpus. Jurisdiction in the executive to order deportation exists only if the person held in detention is an alien who is not entitled to admission under the terms of the Immigration Act. Pending the determination of that question by the Executive the alien may be legally held in detention.

The Supreme Court in Re Burrus, 136 U.S. 586, 10 Sup.Ct. 850, 34 L.Ed. 1500, speaking through Justice Miller, declared that the extent of the authority of the courts of the United States to use the writ of habeas corpus as a means of releasing persons held in unlawful custody has always been clouded with more or less doubt and uncertainty. And it was said in that case, and it is still true, that--

'It is not now the law, therefore, * * * that every person held in unlawful imprisonment has a right to invoke the aid of the courts of the United States for his release by the writ of habeas corpus.'

Before a court of the United States can issue the writ it should be made to appear that the application for the writ is founded upon some matter which justifies the exercise of federal authority. It is, however, well established that in cases involving the deportation of aliens the District Courts of the United States may issue the writ of habeas corpus to determine whether the alien who is held by the immigration officials of the government for deportation, as not being entitled to enter or remain in this country, has had a fair hearing under the immigration acts. Tulsidas v. Insular Collector, 262 U.S. 258, 263, 276, 284, 42 Sup.Ct. 492, 66 L.Ed. 938; Kwock Jan Fat v. White, 253 U.S. 454, 40 Sup.Ct. 566, 64 L.Ed. 1010; Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 260 L.Ed. 114; Chin Yow v. United States, 208 U.S. 8, 28 Sup.Ct. 201, 52 L.Ed. 369; Ex parte Gin Mun On (D.C.) 286 F. 752; Sibray v. United States (C.C.A.) 282 F. 795, 797; United States ex rel. Weinstein v. Uhl (D.C.) 266 F.

929; Colyer v. Skeffington (D.C.) 265 F. 17, 23; White v. Fong Gin Gee (C.C.A.) 265 F. 600; Whitfield v. Hanges, 222 F. 745, 138 (C.C.A. 199; United States v. Petkos, 214 F. 978, 131 C.C.A. 274; United States v. Williams, 200 F. 538, 118 C.C.A. 632; United States v. Tsuji Suekichi, 199 F. 750, 118 C.C.A. 188; United States v. Tsuji Suekichi, 199 F. 750, 118 C.C.A. 188; Ex parte Pouliot (D.C.) 196 F. 437; United States ex rel. Glavas (C.C.) 190 F. 686; In re Nicola, 184 F. 322, 106 C.C.A. 464; Sprung v. Morton (D.C.) 182 F. 330; Ex parte Petterson (D.C.) 166 F. 536; United States v. Chung Shee, 76 F. 951, 22 C.C.A. 639.

Any person is a 'prisoner' who is held in confinement against his will. And one who is in the custody of any official of the United States, who restrains him of his liberty in violation of a law of the United States, is entitled to sue out a writ of habeas corpus to test the legality of his detention. So far the right of the detained alien is clear. Revised Statutes of the United States, Sec. 753 (Comp. St. Sec. 1281).

There is no doubt that an alien who is wrongfully held for deportation by the immigration officials is held in unlawful imprisonment. A person who is not detained by virtue of some lawful, judicial, legislative, or other proceeding is unlawfully confined. As the Supreme Court said in Chin Yow v. United States, 208 U.S. 8, 13, 28 Sup.Ct. 201, 202 (52 L.Ed. 369), of an alien held for deportation, 'De facto he is locked up until (he is) carried out of the country against his will.'

The term 'imprisonment' imports any restraint placed upon one contrary to his wishes and amounting to a physical detention of his person. It is not necessary that he should be restrained behind prison bars. Hebrew v. Pulis, 73 N.J.Law, 621, 64 A. 121, 7 L.R.A. (N.S.) 580, 118 Am.St.Rep. 716; Ex parte Davidge, 72 S.C. 16, 51 S.E. 269; Savannah Guano Co. v. Stubbs, 138 Ga. 409, 75 S.E. 433; Martin v. Houck, 141 N.C. 317, 54 S.E. 291, 7 L.R.A. (N.S.) 576.

It is claimed, however, that this alien is entitled to be admitted to bail under rule 30 of this court relating to the custody of prisoners on habeas corpus, and which provides as follows:

'1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed by bail or otherwise.
'2. Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided.
'3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required.'

The language of the rule shows that it does not give to a prisoner in custody an absolute right in all cases to be released upon recognizance pending an appeal from a final decision discharging the writ, but...

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