Opinion
October 11, 1927.
Jay T. Barnsdall, Jr., of Buffalo, N.Y., for petitioner.
Richard H. Templeton, U.S. Atty., of Buffalo, N.Y. (Roy P. Ohlin, Asst. U.S. Atty., of Buffalo, N.Y., of counsel), for respondent.
Deportation. Petition of Josep Ban for writ of certiorari to review determination of the Secretary of Labor, issuing warrant for deportation of petitioner. Denied.
This is an application for a writ of certiorari for the purpose of reviewing the determination of the Secretary of Labor, who, on January 29, 1927, issued a warrant for the deportation of the petitioner to Jugo-Slavia. The petitioner entered the United States from Canada illegally, and was apprehended at Niagara Falls on December 22, 1926. He is a native of Jugo-Slavia and in or about July, 1924, entered Canada at the port of Halifax, and remained in Canada until he attempted illegal entry into the United States. Thereafter he was released upon $1,000 bail by the United States immigrant inspector in charge at Buffalo, N.Y. On or about March 25, 1927, he re-entered the Dominion of Canada, where he now is.
This writ is sought for the purpose of determining the validity and legality of the warrant deporting Ban to Jugo-Slavia instead of to Canada.
The first question is, Can the proceedings of the Department of Labor and the warrant of deportation be reviewed by a writ of certiorari?
The questions raised by the petition, and the review of the determination of the Secretary of Labor, can be determined by suing out a writ of habeas corpus. Cegiow v. Uhl, 239 U.S. 3, 36 S. Ct. 2, 60 L. Ed. 114; United States v. Tod (C.C.A.) 1 F.2d 246.
The writ of certiorari, which is a discretionary writ at common law, will not issue where the petitioner has a plain and adequate remedy by habeas corpus, or otherwise. In this conclusion I follow the reasoning of Judge Hough in United States v. Rauch (D.C.) 253 F. 814.
It being determined that certiorari cannot properly be invoked in this case, the questions raised by the petition are not considered.
The petition for the writ is denied.