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Feil v. Smith

January 9, 1931


Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Author: Alschuler

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

ALSCHULER, Circuit Judge.

These appeals, having some questions in common, were heard together, and will be disposed of in one opinion. They were taken from orders of the District Court made in habeas corpus proceedings brought after orders for deportation had been made against appellants, and the deportation warrants had issued.

The main question raised and discussed in the cases is whether the applicable statutory limitation upon their deportation is three years. The statute under which the deportation proceedings were instituted is:

"At any time within five years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law; any alien who shall have entered or who shall be found in the United States in violation of this subchapter, or in violation of any other law of the United States; * * * 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 the warrant of the Secretary of Labor, be taken into custody and deported." U.S. Code, tit. 8, § 155, 8 USCA § 155, section 19, Immigration Act of 1917, 39 Stat. 889.

It appears that each of the appellants had been in this country more than three years prior to the institution of the deportation proceedings. In Feil's case it is contended that his entry occurred more than five years before proceedings were begun, and that his deportation is barred, even though that limitation were applicable; but this we need not determine in view of the conclusion we reach.

The nature of the charge wherefore deportation is sought appears in the transcripts only from copy of the warrants of arrest and the warrants of deportation, attached as exhibits to the petitions for habeas corpus. In Costea's case it is stated to be that he is "subject to deportation under the provisions of a law of the United States, to wit: the Passport law (Act of May 22, 1918) and the President's Proclamation thereunder in that he was not at the time of his entry in possession of a properly visaed passport; and the Act approved May 19, 1921, as amended by Public Resolution 56, approved May 11, 1922, in that he entered the United States without being admitted and charged to the quota allotted to the country of which he is a native for the fiscal year ended June 30, 1924."

The warrants in Feil's case make no reference to the passport law, but otherwise are as in Costea's case.

Nothing is charged with reference to the place, time, or manner of entry, nor the inspection of the aliens; but in each petition for habeas corpus the alien sets up that he entered the United States without inspection, and not through a regular port of entry. The object of setting up a ground for deportation with which the aliens were not charged is not apparent, unless it was on the theory that as to such a ground the statutory limitation of three years was applicable, and that this limitation would attach to any other alleged ground of deportation. But it is too plain for argument, and this court has held, that any ground of deportation whereon the limitation is five years will not be affected by a coexistent ground of deportation as to which the limitation is only three years. United States ex rel. Candreva v. Smith (C.C.A.) 27 F.2d 642.

In Judge Woodward's opinion in Costea's Case (D.C.) 36 F.2d 503, the charge that the alien entered without having a passport visaed by an American consul, in violation of the Passport Act of May 22, 1918 (22 USCA §§ 223-226), and the President's proclamation thereunder, is rejected as ground for deportation. The court concluded that the act and proclamation were intended for the guidance of immigration officials, and do not authorize deportation. We think the reasoning in that respect is sound, and the government makes here no contention in conflict therewith.

The opinion in respect to the other ground alleged is evidently predicated upon the assumption that the immigration quota of the nation whence Costea came was full at the time he entered. Upon this assumption it was concluded that under the quota law Costea thus became one of an excluded class, and therefore deportable within five years after entry. On this proposition there is sharp disagreement among the federal courts as to which of the two statutory limitations is applicable. In Kanaszczyc v. Mathews, 30 F.2d 573 (6 C.C.A.), it was held that the three-year limitation applied, while in Hurst v. Nagle, 30 F.2d 346 (9 C.C.A.), the five-year limitation was held applicable. McCandless v. United States ex rel. Swystun, 33 F.2d 882 (3 C.C.A.), follows the first-cited case, and Judge Woodward agreed with Hurst v. Nagle.

Section 2(d) of the Quota Act of May 19, 1921 (42 Stat. 6), prescribes:

"When the maximum number of aliens of any nationality who may be admitted in any fiscal year under this Act shall have been admitted all other aliens of such nationality, except as otherwise provided in this Act, who may apply ...

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