United States ex rel. Schirrmeister v. Watkins

CLARK, Circuit Judge. Relator, a German citizen born in Germany in 1914, was brought to the United States from Colombia for internment by the Immigration and Naturalization Service pursuant to Presidential warrant as an alien enemy dangerous to the United States in time of war. When proceedings against him as an alien enemy were terminated the Service then sought to deport him, to Colombia if practicable, otherwise to Germany. The district court dismissed the writ of habeas corpus, which he sought to challenge the deportation order, and he has appealed. Relator’s period of residence in Colombia began in March, 1938. He was arrested by Colombian authorities on April 12, 1944, and placed in American custody, arriving in the United States on board an Army Transport on July 2, 1944, after a brief internment in the Canal Zone. He was interned, in the custody of the Immigration and Naturalization Service, at Camp Kennedy, Texas, and Fort Lincoln, North Dakota. Thereafter, on or about February, 1946, he was transferred to Ellis Island, New York, where he was released from custody on March 21, 1946. The warrant for his arrest under the Immigration Act of 1924, as an immigrant not in possession of the proper documents at the time of entry, was issued on April 2 and served on August 20, 1946. After a hearing the presiding inspector found that he was subject to deportation under the Act, 8 U.S.C.A. §§ 213, 214, for lack of a valid immigration visa at the time of entry and that he was ineligible for voluntary departure in lieu of deportation. But these conclusions were modified on review by the Acting Commissioner and the Board of Immigration Appeals to permit him to depart voluntarily and giving him 90 days in which to effect his departure. On June 10, 1947, he was notified “that unless departure is effected in accordance with the foregoing it is proposed to order deportation.” At the expiration of the 90 days, relator had not departed, although he had made unsuccessful attempts to obtain visas for Colombia and Argentina. The Acting Commissioner thereupon ordered his deportation, at Government expense, to Colombia if practicable, otherwise to Germany, and a warrant of deportation was issued November 10, 1947. On April 8, -1948, the Board of Immigration Appeals dismissed relator’s appeal from the deportation order, and he surrendered on May 14, 1948. This court action was then instituted. In a series of recent cases we have held that an alien forcibly brought into the United States, as was the relator here, has not made an “entry” into the country [860] and is not an “immigrant” subj ect to deportation under the immigration laws. But in each of these cases we expressly confined our holding to a situation where the alien had been afforded no opportunity to depart voluntarily. In United States ex rel. Bradley v. Watkins, 2 Cir., 163 F.2d 328, 332, we said: “We do not decide what action is open to remove him if he shall fail to make good this proposal [to ship out as a seaman on a foreign bound vessel].” In United States ex rel. Ludwig v. Watkins, 2 Cir., 164 F.2d 456, 457, we said: “Hence he has the right of voluntary departure, and only after his refusal or neglect to leave may the Government deport him.” The statute there cited is 50 U.S.C.A. § 21, providing for removal of enemy aliens by executive order and construed in United States ex rel. Von Heymann v. Watkins, 2 Cir., 159 F.2d 650. See Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429; United States ex rel. Dorfler v. Watkins, 2 Cir., 171 F.2d 431. In United States ex rel. Paetau v. Watkins, 2 Cir., 164 F.2d 457, 458, we expressed the view that the ordinary proceedings for deportation would eventually become available, saying, “There would seem to be statutory authority for the eventual removal of an alien whose entrance originally involuntary becomes clearly voluntary by his continued unforced stay.” Such indeed is the situation here. While the original deportation proceedings in 1946 were ineffective, since relator had not made a voluntary entry, and could not therefore be treated as an immigrant with respect to his enforced entry, nevertheless his subsequent refusal to depart, after being given ample opportunity, well beyond the 90 days allowed in the order, makes his presence here voluntary. Since he was brought here against his will, he is entitled to depart as and whither he pleases, provided only that he can gain admission at his chosen destination. But he is not entitled t.o depart when he pleases, or to remain here indefinitely, simply because he did not choose to come here in the first place. When he chooses to stay beyond the time he was compelled to remain, then it should be held that he has made the entry and is here in violation of the Act, 8 U.S. C.A. § 214. It is to be noted that the general statute, 8 U.S.C.A. § 155, dealing with the “deportation of undesirable aliens generally,” includes “any alien who shall have entered or who shall be found in the United States in violation of this chapter, or in violation of any other law of the United States.” (Italics supplied.) Such power to deport therefore exists quite apart from the authority to the executive to remove him as an alien enemy under 50 U.S.C.A. § 21. Having neglected his opportunity to depart, he has forfeited his right to remain, and may be deported at an immigrant who has not satisfied the requirements of the immigration laws. Affirmed.