United States v. Williams, 117

• Decision Date: 20 February 1952
• Docket Number: Docket 22182.,No. 117,117
• Citation: 194 F.2d 642
• Parties: UNITED STATES ex rel. KUSTAS v. WILLIAMS et al. THE STEEL SEAFARER.
• Court: U.S. Court of Appeals — Second Circuit

194 F.2d 642 (1952)

UNITED STATES ex rel. KUSTAS v. WILLIAMS et al. THE STEEL SEAFARER.

No. 117, Docket 22182.

United States Court of Appeals Second Circuit.

Argued December 6, 1951.

Decided February 20, 1952.

Kirlin, Campbell & Keating, New York City, Delbert M. Tibbetts, New York City, of counsel, for appellants.

Frank J. Parker, U. S. Atty., Brooklyn, N. Y., George Taylor, Asst. U. S. Atty., Brooklyn, N. Y., Louis Steinberg, Dist. Counsel, and Oswald I. Kramer, Attorney, Immigration and Naturalization Service, New York City, of counsel, for appellee.

Before SWAN, Chief Judge, and L. HAND and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Chief Judge.

This appeal presents the question whether, upon the return from a foreign voyage of a bona fide alien seaman who signed on at a United States port as a member of the crew of an American vessel, the examining immigration inspector has authority on the basis of confidential information to order the seaman detained on board at all United States ports, thereby in effect ordering that he be excluded and deported, without the inspector's decision being reviewed by the Commissioner of Immigration or being subject to judicial review by writ of habeas corpus.

The facts are not in dispute. The relator is a native and national of Greece. He has never been admitted to the United States except as a seaman in pursuit of his calling. Since September 1943 he has been sailing as a member of the crew of American vessels. He has married an American citizen, and when on shore he resides with his wife and their two children in New York City. In January 1951, having been passed by the Coast Guard for such service, he signed on in New York as a member of the crew of the S. S. Steel Seafarer, owned by the Isthmian Steamship Company, for a foreign voyage and return. When the vessel returned to Boston on May 7, 1951 the relator applied for admission as a seaman under 8 U.S.C.A. § 203(5). The return to the writ alleges that upon the basis of information of a confidential nature the immigrant inspector who examined the relator ordered him detained on board as an alien who was excludable under section 1 of the Act of October 16, 1918 as amended by section 22 of the Subversive Activities Control Act of 1950, 8 U.S.C.A. § 137. The vessel proceeded coastwise to New York where a further order was served upon the Master to detain the relator on board at all United States ports. At the habeas corpus hearing the relator testified that he had not been told by any representative of the Immigration Service why he was being detained. His testimony was not contradicted. The return to the writ recites that "The information upon the basis of which the immigrant inspector ordered the relator detained on board has been classified as confidential by the Commissioner of Immigration and Naturalization and may not be revealed." It was not revealed at the hearing.

In the District Court the Master of the vessel was represented by the attorneys for the shipowner whose interest in the litigation is obvious, since the expense of detention and of deportation, if the validity of the inspector's order is sustained, will fall upon the owner of the vessel. See 8 Code Fed.Regs. § 120.36; 8 U.S.C.A. § 168. From the order dismissing the writ both the shipowner and the relator have appealed, but only the shipowner has filed a brief in this court, the relator, as we are told, being financially, unable to do so. The District Director of Immigration and Naturalization is the appellee.

The appellee contends that the detention orders attacked by the relator's writ were issued pursuant to valid regulations adopted November 28, 1950 to implement the provisions of the Act of October 16, 1918 as amended by section 22 of the Subversive Activities Control Act of September 23, 1950, 8 U.S.C.A. §§ 137 to 137-8. The regulations relied upon are sections 120.19, 174.2 and 174.4 of Title 8, Code of Federal Regulations. The appellants reply that these regulations, insofar as they purport to permit an immigrant inspector, on confidential information, summarily to exclude a bona fide seaman without the inspector's decision being reviewed by the Attorney General are invalid because in conflict with the procedure laid down in sections 4 and 5 of the 1950 Act, 8 U.S.C.A. §§ 137-3, 137-4. This precise point appears to be one of first impression.

Knauff, U. S. ex rel., v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, sustained the power of the Attorney General to exclude an alien without a hearing, on the basis of information of a confidential nature the disclosure of which would be prejudicial to the public interest. Although the appellee argues that the reasoning of the court in the Knauff case applies with equal force to the action of the inspector in the case at bar, the decision is not a controlling authority not only because it was decided before enactment of the 1950 Act but also because the order of exclusion was made by the Attorney General not by an immigrant inspector. A case more closely in point is United States ex rel. Chew v. Colding, 2 Cir., 192 F.2d 1009. There the alien was a returning seaman who had previously been admitted for permanent residence and sought admission for the purpose of resuming his legal residence. On the basis of information of a confidential nature the immigration inspector at the port of San Francisco ordered him detained on board, and upon arrival of the vessel at New York in March 1951 the temporary exclusion of the relator was continued. This court affirmed the dismissal of the relator's writ, but it is to be noted that the alien was not seeking shore leave to pursue his calling and that an amended return to the writ recited that on April 18, 1951 the Acting Attorney General under the authority contained in section 175.57 of Title 8 of the Code of Federal Regulations ordered that the relator's temporary exclusion be made permanent. It was on the basis of the amended return that the district court dismissed the writ. United States ex rel. Kwong Hai Chew v. Colding, 97 F.Supp. 592. In the case at bar the return to the writ contains no allegation that either the Attorney General or the Commissioner of Immigration, if it be assumed that the former may delegate his authority to the latter, has ever considered the relator's case and ordered his temporary exclusion made permanent.

Section 5 of the Subversive Activities Control Act of 1950, 8 U.S.C.A. § 137-4, printed in the margin,¹ provides that "any alien who may appear to the examining immigration officer at the port of arrival to be excludable under section 1 shall be temporarily excluded," and that "after the case is reported to the Attorney General", if he is satisfied that the alien is excludable under section 1 on the basis of confidential information the disclosure of which would be detrimental to the public interest, he may deny any further inquiry by a board of special inquiry and order such alien to be excluded and deported. Literally, the words "any alien" include alien seamen. But the appellee argues that the statute should not be construed to embrace seamen applying for shore leave in pursuit of their calling because they have traditionally been treated summarily and have never been entitled to a hearing before a board of special inquiry or to an appeal from the decision of the examining immigrant inspector. This is true where the issue decided by the inspector has been the bona fides of the seaman's intention to land in pursuit of his calling. All the cases which have come to our attention have involved only this issue, and if the inspector's decision of that issue is arbitrary it may be reversed on habeas corpus.² But if, as now claimed, on the basis of confidential information which may not be revealed, the inspector may exclude and deport the seaman as a subversive alien, the relator is deprived of judicial review however arbitrary the decision may be. Legislation no doubt might accomplish that result. See Knauff, U. S. ex rel., v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317.

Although section 5 of the 1950 Act expressly directs that the determination to deport without revealing the reason shall be made by the Attorney General, we shall assume arguendo that he may by regulations delegate such power to the Commissioner of Immigration. As we read the regulations upon which the appellee relies in the case at bar, they do not purport to do more than that. Section 174.2 of 8 Code Fed. Regs. provides that an alien seaman seeking to enter as a non-immigrant pursuant to 8 U.S.C.A. § 203(5) shall be ordered detained on board, if he appears to the examining immigration officer to be excludable under section 1 of the Act of October 16, 1918 as amended by the 1950 Act. The next section, 8 C.F.R. § 174.3, directs that "The examining immigration officer temporarily excluding the alien shall promptly report such action to the officer in charge of the district having jurisdiction over the port of arrival who shall communicate such report to the Commissioner."

The record before us contains nothing to indicate compliance with this provision. Sec. 174.4(b), 8 Code Fed.Regs., provides that if the Commissioner determines that the alien is inadmissible under section 1 of the Act of October 16, 1918 as amended, and that the inadmissibility is based on information of a confidential nature the disclosure of which would be detrimental to the public interest, "he may deny any hearing or further hearing by a board of special inquiry and order such alien to be excluded and deported." We interpret this section to require the Commissioner to make the necessary determinations with respect to the particular alien who has been temporarily excluded or ordered detained on board by an immigrant inspector. All that the return to the writ says relative to this subject is that the information upon the basis of which the inspector ordered the relator...