United States v. Murff, 207

• Decision Date: 11 April 1958
• Docket Number: No. 207,Docket 24880.,207
• Parties: UNITED STATES of America, ex rel. Mile MILANOVIC, Relator-Appellee, v. John L. MURFF, as District Director of the Immigration and Naturalization Service, United States Department of Justice, for the District of New York, and/or whomsoever may have custody of the body of said relator, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

253 F.2d 941 (1958)

UNITED STATES of America, ex rel. Mile MILANOVIC, Relator-Appellee, v. John L. MURFF, as District Director of the Immigration and Naturalization Service, United States Department of Justice, for the District of New York, and/or whomsoever may have custody of the body of said relator, Respondent-Appellant.

No. 207, Docket 24880.

United States Court of Appeals Second Circuit.

Argued March 5, 1958.

Decided April 11, 1958.

Roy Babitt, Sp. Asst. U. S. Atty., Southern Dist. of New York, New York City (Paul W. Williams, U. S. Atty., Southern Dist. of New York, New York City, on the brief), for respondent-appellant.

Ernest Fleischman, New York City (Delson, Levin & Gordon, New York City, on the brief), for relator-appellee.

Before LUMBARD, WATERMAN and MOORE, Circuit Judges.

PER CURIAM.

The question for decision is whether Yugoslavia is the country whence the relator came. If, as Judge Palmieri found, it was not, then the order of the Immigration and Naturalization Service deporting Milanovic to Yugoslavia is not authorized by statute¹ and the writ was properly issued.

A native of Yugoslavia, where his mother still lives, Milanovic served with the Royal Yugoslav Navy in World War II and also fought Tito's partisan forces in his native country. His father was killed by the partisans during the war. In 1945 Milanovic slipped across the border into Italy and remained there in a displaced persons camp maintained by the British. He claims that he is now stateless. Upon his release in 1948 he shipped out as a crewman on a ship of Italian registry. When the ship arrived at New York on April 19, 1948 Milanovic was informed that he would not be paid for his three-months service and that he would be returned to Italy for possible deportation to Yugoslavia. To avoid returning to Yugoslavia, he jumped into New York harbor and swam to a tugboat. He was turned over to the immigration authorities, who determined that he had entered the country illegally. Milanovic avoided deportation by shipping out on a Panamanian vessel whose master was a former captain in the Royal Yugoslav Navy. Later the ship on which he sailed was sold. Rather than take a drastic cut in wages, Milanovic left the ship at Antwerp, Belgium, where he lived in a seamen's home for about forty days.

Since the Belgian government would not permit him to remain in that country, the owners of the vessel upon which he last sailed transported him to New York from which port he expected to ship out. He was excluded on February 2, 1949 as an immigrant not in possession of an unexpired immigration visa, a determination which was upheld on administrative appeal. The validity of this determination is not now in question. Milanovic was paroled in order to allow him opportunity to be admitted under a private bill, but such bill was not enacted.

After learning that the Belgian government would not accept the relator, the Immigration and Naturalization Service obtained the consent of Yugoslavia to accept him. Milanovic was taken into custody and ordered deported to Yugoslavia in August 1956. The petition for a writ of habeas corpus, attacking the validity of the order returning him to Yugoslavia, was sued out following abortive attempts by the Immigration and Naturalization Service to gain the consent of Italy, Argentina and Brazil to receive him.

We agree with Judge Palmieri that Yugoslavia is not the country "whence he (Milanovic) came" within the meaning of § 237(a), Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1227(a). We think that the...