United States v. Commissioner of Immigration

• Decision Date: 06 February 1939
• Docket Number: No. 201.,201.
• Parties: UNITED STATES ex rel. MAZUR v. COMMISSIONER OF IMMIGRATION et al.
• Court: U.S. Court of Appeals — Second Circuit

101 F.2d 707 (1939)

UNITED STATES ex rel. MAZUR v. COMMISSIONER OF IMMIGRATION et al.

No. 201.

Circuit Court of Appeals, Second Circuit.

February 6, 1939.

Abraham I. Horn, of New York City (Frank L. Silverman, of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (Samuel Brodsky, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

This is an appeal from an order dismissing a writ of habeas corpus. The writ was taken out to test the validity of the detention of the relatrix under a warrant issued by the Secretary of Labor ordering her deportation to Poland. She is of the Ukrainian race, was born in Poland in 1904, and left that country for Havana, Cuba, in 1923. There she resided for eleven years, and there she was married in 1927 to a Pole by whom she has three children. In 1929 her husband deserted her and returned with the children to Poland, where he subsequently deserted the children. His present whereabouts are unknown to the relatrix. The children are living with her brother in Poland. Her mother and three sisters also live there. In September, 1934, she came from Havana as a stowaway on an unnamed vessel and surreptitiously entered this country at the port of New York. She was taken into custody in 1937 under a departmental warrant of arrest and was given a hearing by an immigrant inspector on charges of entering illegally as a stowaway and without an immigration visa. These charges were proven by her own admissions, and deportation to Poland at government expense was recommended. The inspector's findings and recommendation were approved by the board of review, with the further recommendation that the relatrix be given permission to depart at her own expense to any country of her choice except contiguous territory or adjacent islands. See 8 U.S.C.A. § 180(b). The warrant of deportation so provided. She sought leave to return at her own expense to Cuba for the purpose of sending for her children and reestablishing her home there; but the board of review refused to modify its decision.

The appellant admits that she is subject to deportation, but contends that it was an abuse of discretion for the Secretary of Labor to deny her application for voluntary departure to Cuba as the country of her choice. It may well be doubted whether there is ever power in the court to control the exercise of discretion by the Secretary in respect to the country to which a deportable alien may be permitted to depart voluntarily. See United States ex rel. Giletti v. Commissioner, 2 Cir., 35 F. 2d 687, 688; Ex parte Panagopoulos, 3 F.Supp. 222, D.C.,S.D.Calif. But even assuming such power to exist in a proper case, no abuse of discretion is apparent on this record. The possibility that the alien might again attempt an illegal entry would seem enough, in the exercise of a sound discretion, to justify the denial of her request to be allowed to depart voluntarily to a country so near our shores as Cuba.

A more serious attack upon the validity of the warrant is based on the argument that the statute under which the alien's deportation has been ordered does not authorize her deportation to Poland. The statute is section 20 of the Immigration Act of 1917, 8 U.S.C.A. § 156, and the relevant part thereof reads as follows: "The deportation of aliens provided for in this subchapter shall, at the option of the Secretary of Labor, be to the country whence they came or to the foreign port at which such aliens embarked for the United States; or, if such embarkation was for foreign contiguous territory, to the foreign port at which they embarked for such territory * * *."

Although counsel for the appellee suggests that when the alien left Poland in 1923 she may have intended to go...