United States v. Watkins, No. 145
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | AUGUSTUS N. HAND, CLARK and MAGRUDER, Circuit |
| Citation | 166 F.2d 369 |
| Parties | UNITED STATES ex rel. WEDDEKE v. WATKINS. |
| Docket Number | No. 145,Docket 20869. |
| Decision Date | 19 April 1948 |
166 F.2d 369 (1948)
UNITED STATES ex rel. WEDDEKE
v.
WATKINS.
No. 145, Docket 20869.
Circuit Court of Appeals, Second Circuit.
February 4, 1948.
Writ of Certiorari Denied April 19, 1948.
Gunther Jacobson, of New York City, for appellant.
John F. X. McGohey, U. S. Atty., of New York City (William J. Sexton, Asst. U. S. Atty., of New York City, of counsel), for respondent-appellee.
Before AUGUSTUS N. HAND, CLARK and MAGRUDER, Circuit Judges.
Writ of Certiorari Denied April 19, 1948. See 68 S.Ct. 904.
MAGRUDER, Circuit Judge.
Frederick Heinrich Weddeke sought, by a petition for a writ of habeas corpus filed on his behalf in the court below, to challenge the legality of his detention under a warrant of deportation. A writ was issued, and respondent made a return thereto, to which a traverse was filed. Argument on the pleadings was had in motion session, after which the District judge, from the bench, directed the entry of an order dismissing the writ and remanding relator to custody. At the argument before us on appeal, counsel for respondent offered for our inspection the administrative file of the Immigration and Naturalization Service. Appellant objected to our consideration of the contents of this file on the ground that it was not part of the record before the District Judge and did not influence the decision below. The return to the writ recites certain facts as appearing "by the records of the Department of Justice of the United States with respect to the above-named alien, which records are in possession of respondent and are available for inspection of the Court and of the relator". To state in the return that a certain file is available for the inspection of the court is perhaps not equivalent to making the file a part of the return or incorporating it by reference therein. In view of appellant's objection, we shall disregard the contents of the file and dispose of the case as it appears from the pleadings.
Weddeke last entered the United States as a stowaway on December 9, 1926, without being in possession of a valid immigration visa. He has never been lawfully admitted for permanent residence. These facts are not in dispute, and it is also conceded that the alien, having entered this country illegally, is subject to deportation under 8 U.S.C.A. §§ 155(a), 213, and 214. His only chance to avoid deportation was to invoke the discretionary power given to the Attorney General by 8 U.S.C.A. § 155(c), as follows: "In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * (2) suspend deportation of such alien * * * if he finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien. * * *"
Some time in the early part of 1942, Weddeke was arrested on the charge of incest with his twelve-year-old daughter for acts alleged to have been committed in December, 1941, January, 1942, and May, 1942. He pleaded guilty, was convicted by the County Court of Nassau County, N. Y., on June 18, 1942, and sentenced to from five to ten years in the penitentiary.
Upon his release from the penitentiary (apparently on parole) he was arrested, on September 11, 1945, under an immigration warrant charging him with being subject to deportation on the ground of having entered the country illegally.
On December 5, 1946, he was accorded a hearing by an immigrant inspector. The inspector recommended that the alien be deported on the charge contained in the warrant of arrest.
On April 15, 1947, the Commissioner of Immigration and Naturalization ordered the relator to be deported. This order was affirmed on April 18, 1947, by the Board of Immigration Appeals, and on the same day a warrant of deportation was issued, under which warrant respondent is now holding the alien.
At a date not appearing in the record, but evidently after the warrant of deportation had been issued, the alien, according to an allegation in the petition, "requested the Immigration Service to stay deportation
The petition in a somewhat vague sort of way sought to attack the validity of the judgment of conviction in the state court on the ground that Weddeke had been deprived of his constitutional rights under the Fourteenth Amendment in that he had been inveigled by the District Attorney into pleading guilty to a crime of which he was innocent, without benefit of counsel and without expressly waiving his right to counsel. Cf. Rice v. Olson, 1945, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 637. Attached to the petition were affidavits by Weddeke's wife and daughter,...
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United States v. Shaughnessy, No. 287
...of eligibility for suspension of deportation. 206 F.2d 901 We may assume arguendo, as we did in United States ex rel. Weddeke v. Watkins, 166 F.2d 369, 371, certiorari denied 333 U.S. 876, 68 S.Ct. 904, 92 L.Ed. 1152, that since the Attorney General has provided by regulations the procedure......
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Rizzi v. Murff
...exercise of discretionary power "if available at all, is narrowly restricted in scope". United States ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369, 373, certiorari denied 333 U. S. 876, 68 S.Ct. 904, 92 L.Ed. 1152. It is well-settled that such a decision is final and unreviewable except......
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Alexiou v. McGrath, Civ. A. No. 222-50.
...Immigration Act of February 5, 1917, as amended, Section 19(c), 8 U.S.C.A. § 155 (c); U. S. ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369; U. S. ex rel. Von Kleczkowski v. Watkins, D.C., 71 F.Supp. 429. But it is quite another thing to assert that after regulations have been adopted prov......
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United States v. Mackey, Civ. 86-57.
...unfair. United States ex rel. Accardi v. Shaughnessy, 2 115 F. Supp. 49 Cir., supra; United States ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369, certiorari denied 333 U.S. 876, 68 S.Ct. 904, 92 L.Ed. 1152; United States ex rel. Salvetti v. Reimer, 2 Cir., 103 F.2d 777. See also United S......
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United States v. Shaughnessy, No. 287
...of eligibility for suspension of deportation. 206 F.2d 901 We may assume arguendo, as we did in United States ex rel. Weddeke v. Watkins, 166 F.2d 369, 371, certiorari denied 333 U.S. 876, 68 S.Ct. 904, 92 L.Ed. 1152, that since the Attorney General has provided by regulations the procedure......
-
Rizzi v. Murff
...exercise of discretionary power "if available at all, is narrowly restricted in scope". United States ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369, 373, certiorari denied 333 U. S. 876, 68 S.Ct. 904, 92 L.Ed. 1152. It is well-settled that such a decision is final and unreviewable except......
-
Alexiou v. McGrath, Civ. A. No. 222-50.
...Immigration Act of February 5, 1917, as amended, Section 19(c), 8 U.S.C.A. § 155 (c); U. S. ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369; U. S. ex rel. Von Kleczkowski v. Watkins, D.C., 71 F.Supp. 429. But it is quite another thing to assert that after regulations have been adopted prov......
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United States v. Mackey, Civ. 86-57.
...unfair. United States ex rel. Accardi v. Shaughnessy, 2 115 F. Supp. 49 Cir., supra; United States ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369, certiorari denied 333 U.S. 876, 68 S.Ct. 904, 92 L.Ed. 1152; United States ex rel. Salvetti v. Reimer, 2 Cir., 103 F.2d 777. See also United S......