United States v. Nicolls
| Citation | 47 F. Supp. 201 |
| Decision Date | 20 October 1942 |
| Docket Number | No. 6613 Misc. Civil.,6613 Misc. Civil. |
| Parties | UNITED STATES ex rel. JANAVARIS v. NICOLLS. |
| Court | U.S. District Court — District of Massachusetts |
Peter G. Geuras, of Boston, Mass., for petitioner.
Henry Nicolls, District Director of Immigration and Naturalization, and William J. Koen, Asst. U. S. Atty., both of Boston, Mass., for respondents.
Janavaris came to the United States as a cabin boy on a Greek steamer on December 3, 1939. In accordance with the applicable statute and regulations he was permitted to land and to visit this country for a period of sixty days. He over-stayed his permitted leave and remained in this country. Aside from his violation of the restrictions embodied in his license to land (which though wrongful is not criminal), Janavaris has violated no law of the United States and has been a law-abiding citizen. Indeed, when the Selective Training and Service Act, 50 U.S.C.A. Appendix § 301 et seq., was adopted, Janavaris registered for the draft and has been and now is willing to serve in the armed forces of the United States.
On May 12, 1942, a warrant was issued by the Attorney General for the arrest of Janavaris charging him with having remained unlawfully beyond the period of time for which he was admitted. A hearing was held upon that warrant and on July 10, 1942, the Attorney General issued a warrant for the deportation of Janavaris. The warrant specifies, as the place to which the alien shall be deported, Greece, being the country from which the alien came. Section 20 of the Immigration Act of 1917, 8 U.S.C.A. § 156. The warrant, however, gave alternatively a permission to the alien to ship voluntarily upon another vessel of his choice.
Janavaris has petitioned this Court for a writ of habeas corpus, apparently upon the theory that since he cannot be deported to Greece under present conditions, the Department of Justice has no right to keep him in custody and this Court has the power to release him upon his giving surety for his appearance at such time as deportation can be effectuated.
Until the war it was customary for the Department of Justice to release upon bond aliens who had been ordered deported but whose deportation could not promptly be effectuated. Section 20 of the Immigration Act of 1917, 8 U.S.C.A. § 156. But after we became participants in the war the Department refused to release alien seamen who could not be returned to the country of their origin, unless they were willing to accept service upon vessels sailing upon the high seas. Some seamen have chosen to go to sea; others have regarded the alternatives as the equivalent of imprisonment or impressment and have selected the former as the lesser of two evils.
The first question which is presented to this Court is whether under Section 20 of the Immigration Act of 1917 an alien who cannot be deported has a statutory right to be released upon bail fixed by the Attorney General. The United States Circuit Court of Appeals for the Sixth Circuit took the view that there was such a statutory right and that if the Attorney General refused to allow the alien to go on bail, the alien was entitled to be enlarged without bail. Prentis v. Manoogian, 6 Cir., 16 F.2d 422. But this construction of the statute has been repudiated and an opposite result has been reached by the Circuit Court of Appeals for the Second Circuit and by the District Court in the Western District of Pennsylvania. United States ex rel. Zapp v. District Director, 2 Cir., 120 F.2d 762; United States ex rel. Ioannis v. Garfinkel, D.C.W.D.Pa., 44 F.Supp. 518. Without committing myself, I assume for the purposes of this case that the later decisions are correct and that the statute does not require that the Attorney General admit an alien to bail but leaves the matter discretionary with the executive.
A more important question remains: Whether under the statute giving the district courts power to issue writs of habeas corpus R.S. Section 751, Title 28 U.S.C.A. § 451 this Court has the power to release from custody an alien who...
To continue reading
Request your trial
-
Rodriguez-Fernandez v. Wilkinson
...v. Nagle, 28 F.2d 955, 957 (9th Cir.), cert. denied, 277 U.S. 589, 48 S.Ct. 437, 72 L.Ed. 1002 (1928); United States ex rel. Janavaris v. Nicolls, 47 F.Supp. 201 (D.Mass.1942). The linchpin of the government's case is Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 9......
-
Hermanowski v. Farquharson
...ex rel. Kusman v. District Dir. of Immigration & Naturalization, 117 F.Supp. 541, 547-48 (S.D.N.Y.1953); United States ex rel Janavaris v. Nicolls, 47 F.Supp. 201, 203 (D.Mass.1942); In re Hanoff, 39 F.Supp. 169, 171 (N.D.Cal. Several federal district courts have also recently decided that ......
-
Zadvydas v. Caplinger
...F.2d 955 (9th Cir.1928); Wolck v. Weedin, 58 F.2d 928 (9th Cir.1932); In re Hanoff, 39 F.Supp. 169 (D.Cal.1941); U.S. ex rel. Janavaris v. Nicolls, 47 F.Supp. 201 (D.Mass. 1942). The United States District Court for the District of Kansas stated "The rationale underlying these decisions was......
-
Fernandez v. Wilkinson
...28 F.2d 955 (9th Cir. 1928); Wolck v. Weedin, 58 F.2d 928 (9th Cir. 1932); In re Hanoff, 39 F.Supp. 169 (D.Cal. 1941); Janavaris v. Nicolls, 47 F.Supp. 201 (D.Mass.1942). The rationale underlying these decisions was that detention was intended for the sole purpose of effecting deportation. ......