United States v. Day

• Decision Date: 06 June 1927
• Docket Number: No. 386.,386.
• Citation: 20 F.2d 302
• Parties: UNITED STATES ex rel. D'ISTRIA v. DAY, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

20 F.2d 302 (1927)

UNITED STATES ex rel. D'ISTRIA v. DAY, Commissioner of Immigration.

No. 386.

Circuit Court of Appeals, Second Circuit.

June 6, 1927.

Gaspare M. Cusumano, of New York City, for appellant.

Albert D. Smith, of Brooklyn, N. Y., for appellee.

Before MANTON and L. HAND, Circuit Judges, and CAMPBELL, District Judge.

L. HAND, Circuit Judge (after stating the facts as above).

No point is raised that this writ was directed to the Commissioner of Immigration, and not to the master of the vessel. We do not, therefore, consider its propriety in this regard, or whether detention by the master at the Commissioner's order was detention by the Commissioner himself.

The cause comes up upon the petition, the return and the evidence taken before the District Court. This was irregular. As there was no traverse under Revised Statutes, ß 760 (Comp. St. ß 1288), and as the return did not show that the relator had not had a fair hearing, there was, strictly speaking, no issue, and nothing for the court to try, since the return is conclusive unless traversed. Crowley v. Christensen, 137 U. S. 86, 94, 11 S. Ct. 13, 34 L. Ed. 620; Stretton v. Rudy, 176 F. 727 (C. C. A. 5). However, since the parties treated the return as though it had been impeached by a traverse, and the court took evidence on that understanding, we ignore this formal error.

Section 33 of the act of 1917 (Comp. St. ß 4289ºrr) makes it unlawful to discharge a seaman in the United States, unless he intends to reship on another vessel bound to a foreign port, and then only in conformity with such regulations as the Secretary of Labor may promulgate. This section survives and is consistent with the Quota Act of 1924, section 3 (5), being Comp. St. ß 4289æaa, which exempts from the quota seamen seeking to enter temporarily in pursuit of their calling. Section 19 of the Quota Act (Comp. St. ß 4289æii) forbids any seaman "excluded from admission" to land except as allowed by the regulations. We read it as meaning that an alien seaman discharged in the United States is "excluded from admission" by section 33 of the act of 1917, unless he intends to reship and satisfies the regulations passed to ascertain that intention. Possibly section 19 is redundant, but like section 3 (5) it is consistent with section 33 of the act of 1917. The only relevant regulation is rule 6, subdivision E, paragraph 4, which requires a seaman to establish to the satisfaction of the immigration inspector that he seeks to enter solely in pursuance of his calling and that he does not intend to abandon it. This is a valid regulation and lawfully imposes the burden upon the seaman.

However, while we agree that the procedure may be summary, and indeed was intended so to be, we think that the inspector must accord the seaman a fair hearing, and give him the chance to show that he is landing as the statute requires. The record shows that in the case at bar the inspector did not do this. Relying upon the suspicious evidence of the manifest, his questions to the master, and the letter to the department, he merely passed the suspected seamen before him in line, and thereupon ordered their detention. Thus he deprived them of any opportunity to disabuse him of his suspicions and to prove their intent.

The detention was therefore unlawful, and the writ should have been allowed. However, this does not involve the release of the relator. The proper procedure is to remit him to the custody of...