United States v. Shaughnessy

• Citation: 105 F. Supp. 22
• Parties: UNITED STATES ex rel. KENG HO CHANG v. SHAUGHNESSY, District Director, New York District Immigration & Naturalization Service.
• Decision Date: 12 May 1952
• Court: U.S. District Court — Southern District of New York

105 F. Supp. 22

UNITED STATES ex rel. KENG HO CHANG v. SHAUGHNESSY, District Director, New York District Immigration & Naturalization Service.

United States District Court S. D. New York.

May 12, 1952.

Arthur S. Schapira, New York City, for relator.

Myles J. Lane, U. S. Atty. for the Southern District of New York, New York City, (William J. Sexton, Asst, U. S. Atty., Lester Friedman, Attorney, Immigration & Naturalization Service, New York City, of counsel), for respondent.

IRVING R. KAUFMAN, District Judge.

The relator seeks to sustain a writ of habeas corpus.

The relator is a 28 year old Chinese citizen who first entered this country at the port of Baltimore, Maryland, on October 12, 1947 as a seaman aboard the S. S. "Negara". He apparently entered and has remained here illegally since then except for three continuous voyages he made between August 28, 1951 and March 3, 1952 aboard the S. S. "Roger Griswold". He shipped on those voyages as a seaman in possession of American seaman's papers.

The relator alleges that "on or about August 1951" he filed an application with the Commissioner of Immigration and Naturalization in Washington, D. C. for adjustment of his immigration status pursuant to the provisions of Section 4 of the Displaced Persons Act, 50 U.S.C.A.Appendix, § 1953. He avers that in his application he claimed displacement from China and fear that his return to that country would result in physical persecution due to his opposition to Communism.

On December 28, 1951 the District Director of the Immigration and Naturalization Service at New York directed him to prepare the necessary documents for submission to establish his eligibility for adjustment of his status, and to await a notice of hearing on the application. It appears that no hearing has as yet been held.

On August 28, 1951, he signed on the S. S. "Roger Griswold" as a seaman and sailed from the port of Norfolk, Virginia. Thereafter he made the three aforementioned voyages.

On March 1st or 3rd, 1952, the relator landed at the port of Baltimore on a return voyage of the S. S. "Roger Griswold" from Spanish Morocco. At that time he applied for admission to the United States as a seaman on shore leave. The government alleges he was examined by an Immigrant Inspector to whom he stated that he had previously come to the United States in 1947 as a seaman. At the time the relator apparently could not document the statement, and, the government claims, he had previously told the ship's purser that he had been to sea for only six months. The government also claims that he was evasive during the examination.

The Inspector did not believe he would reship were he permitted to come ashore, and he was ordered detained on board and deported as a mala fide seaman pursuant to the provisions of 8 U.S.C.A. § 167; 8 C.F. R. 120.2, 120.21(e) and 120.35. On the two immediately previous occasions on which the relator had entered the United States, he had been admitted as a bona fide seaman.

The S. S. "Roger Griswold" was not scheduled to leave the United States and at the expense of the shipping company the relator was removed to Ellis Island on March 18, 1952 pursuant to 8 C.F.R. 120.36.

The relator's prime contention is that his detention, in the absence of a full and fair examination by the Immigrant Inspector and in view of the evidence of his recent previous reshippings, is an abuse of discretion by the Immigrant Inspector. That is the only genuine issue before me.

In his brief, the relator's attorney stresses his client's difficulty with the English language, and he urges that since the Immigrant Inspector examined the relator without an interpreter, "it is inconceivable that the Inspector and the Relator were in a position to understand each other." The attorney says that at the time of the examination the relator had in his possession his previous discharges from the S. S. "Roger Griswold" which, he suggests, is conclusive evidence that the relator had been pursuing his vocation as a seaman since August 28, 1951 and had thereafter reshipped with the vessel to which he was attached.

U. S. ex rel. U. S. Lines on Behalf of Colovis v. Watkins, 2 Cir., 1948, 170 F.2d 998 is very much in point. It held that where a seaman's recent shore leaves show adherence to the time limit set by law, an Immigrant Inspector is acting capriciously and arbitrarily in ordering him detained for deportation as a mala fide seaman. In that case, the Court of Appeals for this circuit had before it the Inspector's original notice to detain on board and his more informal and detailed report made to his superior some three and a half months later. I have no such evidence before me. All that is presented is the fact that the relator was excluded, with no evidence of the reasons for the exclusion save that in the return to the writ, the government states "the relator was unable to present any of his discharge records to verify the continuity of his service. * * * When questioned further the relator was evasive in his responses. The Immigrant Inspector, in the exercise of his judgment, did not believe the relator would reship if permitted to land * * *." Yet, the...