United States v. Esperdy

• Decision Date: 26 October 1960
• Citation: 188 F. Supp. 491
• Parties: UNITED STATES of America ex rel. Julius SZLAJMER, Relator, v. P. A. ESPERDY, District Director of Immigration, Port of New York, and Captain Loroch, Captain of THE M. S. OLESNICA, Respondents.
• Court: U.S. District Court — Southern District of New York

188 F. Supp. 491

UNITED STATES of America ex rel. Julius SZLAJMER, Relator, v. P. A. ESPERDY, District Director of Immigration, Port of New York, and Captain Loroch, Captain of THE M. S. OLESNICA, Respondents.

United States District Court S. D. New York.

October 26, 1960.

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S. Hazard Gillespie, Jr., U. S. Atty., New York City, for respondent Esperdy (Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel).

Wolf, Popper, Ross, Wolf & Jones, New York City, for Captain Loroch of the S. S. Olesnica (Paul L. Ross, New York City, of counsel).

Bella V. Dodd, New York City, for petitioner. American Civil Liberties Union, amicus curiae (Edith Lowenstein, New York City, of counsel).

MacMAHON, District Judge.

This is a petition for a writ of habeas corpus by an alien crewman challenging his detention by the Master of a Polish ship under an order of the Immigration and Naturalization Service. The order summarily revoked relator's landing permit and remanded him to the Master for deportation without a hearing despite his plea for political asylum. The case raises questions of first impression regarding the rights of alien crewmen under § 243 (h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h). That statute provides that "The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason." The statute has been implemented by regulations setting forth hearing procedures available to aliens requesting a stay of deportation predicated upon a claim by the alien that he would be subject to physical persecution if deported to the country designated by the Immigration Service (8 C.F.R. § 243.3(b)).

Claiming to be an alien "within the United States" by reason of his presence in this country under a crewman's landing permit, relator asserts that he is eligible to receive the benefits of § 243 (h). Asserting that relator is either a mala fide crewman or a deserter from a ship still in port, the Immigration Service contends that the statute is not applicable to relator. The argument is that as a mala fide crewman, relator, in legal effect, is an excluded alien and, therefore, not within the United States, or as a deserter from a ship still in port, he is subject to summary deportation under § 252 (b) of the Immigration and Nationality Act (8 U.S.C.A. § 1282(b)) and its implemental regulations (8 C.F.R. § 252.2).

The question, therefore, is whether an alien crewman, who is ashore in the United States under a crewman's landing permit which has not expired, is entitled to a hearing under § 243(h) and 8 C.F.R. § 243.3(b) on his claim that he will be subject to physical persecution if deported to his country on the ship which brought him. After argument and study of the case, I held that relator is entitled to a hearing. Accordingly, I sustained the writ, with opinion to follow, and released relator in his own recognizance pending the determination of a hearing.

The facts are not in dispute. Relator, a citizen and national of Poland, arrived at the Port of New York on June 11, 1960 as a member of the crew of the Polish motor vessel Olesnica, one of three Polish ships plying western ports. He applied for shore leave and after a routine examination by an Immigration Inspector, which revealed no disqualifications, received a conditional (D-1) landing permit admitting him to the United States as a bona fide crewman temporarily here with the intention of departing within twenty-nine days on the same vessel. 8 U.S.C.A. §§ 1101(a) (15) (D) and 1282(a) (1); 8 C.F.R. § 252.1(d) (1). Such conditions are set forth on the face of relator's application¹ and on the permit itself.²

Relator went ashore and on the night of June 14, 1960, when his ship sailed coastwise for Philadelphia, he did not report on board but appeared at the New York office of the Federal Bureau of Investigation seeking political asylum and groping for help. The Bureau referred him to the Immigration and Naturalization Service, and the next morning advised the Immigration Service of his visit and request for asylum. During the day, the Master reported his desertion and early that evening relator's attorney arranged a conference with the Immigration Service for the next afternoon regarding an application for asylum under § 243(h).

Relator and his attorney appeared at the office of an Immigration Inspector at the appointed time on June 17. The Immigration Service concedes that relator was not accorded a hearing. Instead, he was promptly warned that his statements could be used against him, put under oath, and interrogated extensively through an interpreter respecting his intentions as a bona fide crewman and his good faith in seeking asylum.

Regarding his intentions as a bona fide crewman, relator admitted that he had wanted to leave Poland for a long time but maintained that he did not form an intention to defect until after he came to the United States and saw New York. After he arrived here, he decided to stay for he "hoped to be able to get some political rights here like so many other Polish seamen who deserted and finally got the right to remain permanently in the United States." Respecting his claim that he would be subject to physical persecution if returned to Poland, he admitted that he had been a member of the Communist Party, said that he had become disillusioned, and claimed that it would amount to a "rub out" if he were sent back to Poland.

After this all-day conference, the Immigration Service, acting on relator's avowed hope to remain here under asylum and his failure to report on board his ship, found that relator did not intend to depart on the ship which brought him, revoked his landing permit, remanded him to the Master of the Olesnica, and summarily ordered his deportation. A writ of habeas corpus was obtained and the Master, in obedience to its command, produced relator on the return day, and he was held in the custody of the Immigration and Naturalization Service under a stipulation maintaining the status quo pending the court's decision.

There is nothing in the text, history or purpose of § 243(h) which excludes alien crewmen from its benefactions. The statute explicitly applies to "any alien within the United States". The term "alien" means any person not a citizen or national of the United States. 8 U.S.C.A. § 1101(a) (3). Obviously, therefore, "any alien" includes a foreign crewman. Philippides v. Day, 1930, 283 U.S. 48, 50, 51 S.Ct. 358, 359, 75 L. Ed. 833. Nor is there any mystery in the phrase "within the United States". Relator urges that his mere physical presence within our borders entitles him to the shelter of the statute. Mere physical presence, however, is not enough to satisfy the requirement that an alien be "within the United States". The statute is applicable only to aliens who have entered the United States in contemplation of law. Aliens who have been excluded from entry, therefore, are not eligible for the relief it affords. Leng May Ma v. Barber, 1958, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246; Rogers v. Quan, 1958, 357 U.S. 193, 78 S.Ct. 1076, 2 L.Ed.2d 1252.

Consequently, relator has no standing to apply for asylum under § 243 (h) unless he has entered the United States. "The term `entry' means any coming of an alien into the United States, from a foreign port or place * * * whether voluntarily or otherwise * *" (8 U.S.C.A. § 1101(a) (13)). Thus, a seaman permitted to land upon arrival from a foreign port makes an entry. United States ex rel. Claussen v. Day, 1929, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; United States ex rel. Stapf v. Corsi, 1932, 287 U.S. 129, 53 S.Ct. 457, 76 L.Ed. 929.

This is not a case, therefore, of mere physical presence. We are dealing here not with an alien excluded from entry or held on the threshold in parole pending determination of his right to enter, as in Leng May Ma v. Barber, supra, and Rogers v. Quan, supra, but with an alien crewman "permitted to land temporarily in the United States (8 U.S.C.A. § 1282 (a) (1))³ after applying for a permit "to facilitate his entry into the United States as a crewman" (Immigration and Naturalization Service Form 1-174, supra). In this connection, it is worth noting that the challenged deportation order expels relator "from the United States".

Thus, there can be no question that relator fits the letter of the statute. Implicitly conceding as much, the Immigration Service argues that it is of no moment that relator was given a permit to land in the United States six days before its revocation. According to the Immigration Service, relator's open request for asylum and avowed hope to stay in the United States makes him a mala fide crewman who, in effect, was detained on board his ship. Thus, it is urged, relator is an excluded alien ab initio and ineligible for the benefactions of § 243(h) under the rule of Leng May Ma v. Barber, supra. The contention rests on a fiction not supported by the facts nor justified by the plain purpose of § 243(h).

It is, of course, true that when an alien crewman obtains a temporary landing permit by concealing a ripened intention to remain here permanently without lawful permission, he perpetrates a fraud upon the Immigration authorities which vitiates his landing permit. United States ex rel. Tsevdos v. Reimer, 2 Cir., 1940, 108 F.2d 860. Cf., Sleddens v. Shaughnessy, 2 Cir., 1949, 177 F.2d 363. 8 U.S.C.A. § 1282(b).

The undisputed facts show, however, that at the time he obtained his permit, relator's intentions with respect to remaining in the United States were neither formed nor fraudulent. There is nothing in the transcript of his sworn statement before the Immigration authorities to show that on the voyage in question he intended to come to this country for permanent...