United States ex rel. Danikas v. Day

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above). The main question discussed in each-of the foregoing eases is whether the warrant of deportation issued too late. Section 34 of the Immigration Act of 1917 provides: “That any alien seamen who shall land in a port of the United States contrary to the provisions of this act shall be deemed to be unlawfully in the United States, and shall, at any time within three years thereafter, upon the warrant of the Secretary of Labor, be — 735 — taken into eustody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation for this act as provided in section twenty of this act.” This section, naturally read, would seem to require the Secretary of Labor to arrest a seaman within three years after unlawfully landing in the country, if he sought to deport him; but the government, in spite of the quite unqualified language, contends that the section only determines the admissibility of a seaman, as sections 12-17 (Comp. St. §§ 4289%g-4289%,ii) do of other classes, and that seamen, as well as all other persons, are subject to deportation under section 19 (Comp. St. § 42891/4jj), which contains a live-year statute of limitation for excludable persons, except in the ease of irregular entry, where the time is three years. Certainly this contention is not sound as to causes such as insufficiency of quota, which is an irregularity connected with entry, even if the provisions of section 19 may bo thought to apply to deportation of seamen for offenses subsequent to their arrival. One of the provisions of section 19 is that “ * * * at any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than'one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon warrant of the Secretary of Labor, be taken into eustody and deported. * * * ” The government in its brief says that: “Section 34 is simply an exception to this provision of section 19. An alien seaman arrested within three years after an unlawful entry may not be deported on that ground. * * • In that respect, and in that respect only, we submit, is the status of an alien seaman in this country different from that of an ordinary alien.” We can, however, see nothing in section 34 which limits its purpose to giving a hearing to seamen as to their admissibility. Indeed, it is not true, as claimed, that persons, other than seamen, are in all cases denied belated hearings on their qualifications for admission. On April 20, 1926, the Bureau of Immigration promulgated upon the subject of “nunc pro tune examinations” a first amendment to General Order No. 37. That amendment provided for such hearings to determine the status of aliens, when entries were before July, 1921, and between July 1, 1921, and July 1, 1924, where the alien might have been admitted for permanfent residence as exempt from quota. It must be remembered that it had been held by the Supreme Court in Taylor v. United States, 207 U. S. 120, 23 S. Ct. 53, 52 L. Ed. 130, that deserting seamen did not come within the immigration laws. The provisions of the act of 1917, including section 34 under discussion, wore enacted to bring them within the law, and that was the only act prior to that of 1924 that' dealt with them in terms. Section 34 provides that seamen who land “contrary to the provisions of this act,” not merely those who land without inspection, can be deported within three years, if they cannot establish their qualifications for admission to the satisfaction of a Board of Special Inquiry. Indeed, section 19 provides for only a three-year limitation in respect to entry of any person without inspection, so that section 34 was not needed to cover mere irregular entry by seamen, if they were deportable under section 19. The view that section 34 alone regulates the deportation of seamen was taken by Judge Learned Hand in United States ex rel. Filippini v. Day, 18 F.(2d) 781, decided in the District Court December 3, 1926. There is strong ground for this, as nothing else dealt with them in terms, and prior to the act of 1917, by reason of the decision in Taylor v. United States, supra, they wore not deport-able. The Circuit Court of Appeals of the Ninth Circuit, in Nagel v. Hansen, 17 F.(2d) 557, seems to have reached the same result. We can in any event see no escape from the conclusion that section 34 regulates the deportation of seamen in all eases relating to improper entry sueh as entry in excess of quota. Moreover, if the strict language of section 19 be considered, it seems unlikely that a seaman can be regarded as a person “who at the time of entry was a member of one or more of the classes excluded by law.” It is his change of status by remaining which makes his presence here unlawful. Two other questions are said to have been decided erroneously by the court below. The first is that, even if the three-year statute1 of limitation be taken to apply to any of these eases, the proceedings in the Danikas, the Di Giacomo, and the Depastas Cases were all commenced within the three-year period. The date which the government insists is the eriti — 736 — cal one is that when the warrant of arrest is issued, and not when the alien is taken into custody. The other point is raised by the relator Danikas, who contends that the appeal in his case was not timely, and that the order sustaining the writ is not brought up for review. The proceedings were in each case taken too late. As was said in United States ex rel. Filippini v. Day, supra, “it is now the arrest which counts,” and not the date of issue of the warrant or the time of the actual deportation. In United States ex rel. David v. Tod (C. C. A.) 289 F. 60, and United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385, the proceedings were under sections 19 and 20 of the Immigration Act (Comp. St. §§ 4289%jj, 4289%k), and did not relate to seamen. In each case the arrest was within the statutory limit of five years from the date of entry. It was held that section 20, providing, as it did, “if deportation proceedings are instituted at any time within five years after the date of entry,” was satisfied where the warrant was issued and served within the five years. Section 34 is much plainer, for it says nothing about the institution of proceedings, but provides that “any alien seaman who shall land in a port of the.United States contrary to the provisions of this act, * * * and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody, * * * shall be deported.” This, by the plainest language, makes the taking “into custody” within three years from landing the critical factor. In the Danikas Case the appeal was seasonable, because the time did not begin to run until the motion for a rehearing was disposed of (Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Northern Pacific R. R. v. Holmes, 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99), but there was no appeal from the order sustaining the writ, inasmuch as the petition on appeal referred only to the order denying the motion for a reargument. It is fortunate that we find no error in the disposition of the writ, for the appeal as taken does not cover the order sustaining it, and the order denying the motion for a reargument, from which alone the appeal has been taken, is not appealable, because it is not a final order. The appeal in the Danikas* Case must accordingly be dismissed. The orders sustaining the writs on behalf of Di Giacomo, Depastas, and Lorusso are affirmed.