Opinion
No. 445.
June 13, 1932.
Appeal from the District Court of the United States for the Southern District of New York.
Petition by the United States, on the relation of Hugo Koehler, for writ of habeas corpus to be directed to Edward Corsi, Commissioner of Immigration at the Port of New York. From an order dismissing the writ, relator appeals.
Affirmed.
The relator is an alien who arrived at the port of New York on the steamship Stuttgart on November 10, 1929. At a hearing before a Board of Special Inquiry at Ellis Island two days later, he produced a nonquota visa which had been issued to him by the American consul at Bremen, Germany, October 14, 1929, after his wife, who is an American citizen, had filed a petition for a nonquota status for her husband and had obtained favorable action upon it by the Commissioner General of Immigration at Washington. There was evidence that the alien was afflicted with chronic valvular heart disease and moderate varicose veins which might affect his ability to earn a living. Action was deferred to await the production of evidence as to his having previously been deported. On November 15, 1929, a second hearing was had at which it was shown that he had been deported on June 27, 1929, on a warrant dated April 25, 1927. He was excluded because of the above-mentioned disease; because likely to become a public charge; and because he had been previously deported. On appeal to the Secretary of Labor the excluding decision was affirmed, and then this writ was obtained.
At the hearing in the District Court, it appeared that the alien first applied for admission to the United States in 1923 and was excluded on April 9, 1923 as a physical defective. On August 17, 1923, he returned to this country as a seaman on the steamship Hanover and deserted his ship. On August 12, 1926, he was arrested, and, after he had been given a hearing at Ellis Island, a warrant for his deportation was issued on September 3, 1926, on the ground that he had entered by water at a time and place other than as designated. On April 25, 1927, a deportation warrant stating additional grounds was issued to supersede the first warrant. After his arrest upon it, the alien obtained a writ of habeas corpus which was heard by the District Court for the Southern District of New York and dismissed. An appeal was taken and later withdrawn. On June 20, 1929, the alien surrendered himself at Ellis Island for deportation and soon thereafter was deported. His next appearance for admission the following November resulted in the order from which this appeal was taken.
Harold Van Riper, of New York City, for appellant.
George Z. Medalie, U.S. Atty., of New York City (Walter H. Schulman, Asst. U.S. Atty., of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
It has been urged that the deportation of the relator in June, 1929, was unlawful for reasons now sought to be advanced. In answer to that it need only be noticed that he had his day in court and after an adverse decision on his writ of habeas corpus took an appeal which he withdrew. The decision of the District Court then became final, and he was actually deported. Such deportation was therefore one "in pursuance of law" as the expression is used in 8 USCA § 180. What is sometimes called the law of the case became fixed when the decision of the District Court became final, and it is now too late to attack that deportation as one not in pursuance of law.
As an alien previously deported in pursuance of law, the relator was properly excluded under 8 USCA § 180 regardless of his physical condition or his likelihood to become a public charge. We do not base this decision on the latter two grounds, because the first is controlling. The proviso of section 180 relating to permission to reapply has to do only with aliens who were deported before March 4, 1929. This alien was deported after that, and so what is claimed to be implied permission to reapply for admission by virtue of the granting of the wife's petition for a nonquota status for her husband would contravene the statute anyway. Furthermore, no such permission was expressly given and no request for it was made in the petition which did not even disclose the fact of former deportation. It is said that this fact was disclosed in the briefs filed, but what effect, if any, that could have, is left to await a time when it requires decision. As no permission could have been given this alien to reapply, we will not assume that any was. It might be well to point out, however, that the nonquota visa issued to the relator had plainly printed upon it as required by 8 USCA § 202(g) that: "This Immigration Visa will not entitle the person to whom issued to enter the United States if, upon arrival in the United States, he is found to be inadmissible to the United States under the Immigration Laws." Thus the effect of such finding as to his admissibility as had to be made by the Commissioner General as a preliminary to granting him a nonquota status [see 8 USCA § 209(e)] was expressly limited to his admissibility as a nonquota immigrant, provided he was found upon arrival to be otherwise admissible.
Order affirmed.