UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
January 29, 1940
UNITED STATES EX REL. BORACA
SCHLOTFELDT (TWO CASES).
On Petition for Rehearing.
We believe that petitioner's inferences as to the effect of our decision are grossly ungrounded.
We neither concluded that the Poland of today was "non-existent" nor did we base our decision thereon. We noticed as a matter within the common knowledge of all, that existing conditions in Poland were serious.
We reversed and remanded this case for further appropriate proceedings.We reversed because the deportation statute authorizes deportation to the "country whence they came," and that country is not Poland. The undisputed facts in the instant case show that the aliens in question had acquired a domicile in Canada, and under the authorities in such circumstances the "country whence they came" is Canada. Gorcevich v. Zurbrick, 6 Cir., 48 F.2d 1054, 1055.
Ordinarily, where the record indicates but does not definitely show that the aliens have changed the domicil of origin, and where the immigration authorities have failed to inquire therein, the case will be remanded for a further hearing on the question of domicil. United States ex rel. Di Paola v. Reimer, 2 Cir., 102 F.2d 40, 41. But where the record definitely shows, as in the instant case, that the aliens have acquired a domicil in Canada, there is no occasion for remanding on the question of domicil, and in such a case it follows that an order deporting to Poland is unauthorized. United States ex rel. Mazur v. Commissioner of Immigration, 2 Cir., 101 F.2d 707.
In addition, we remanded this case for further appropriate proceedings. It stands undisputed that the aliens in question are subject to deportation, and the Secretary of Labor may amend the warrant, directing deportation to Canada. Canada, the "country whence they came," may refuse to receive them, but the immigration statute provides for such a contingency. The Secretary may then deport them "to the country of which such aliens are subjects or citizens", and here such a country would probably be Poland. Gorcevich case, supra.
In conclusion, we say that this court neither has power nor seeks to exercise power to control the administrative discretion vested in the Secretary of Labor. However, this court has power to condemn action of the Secretary which does not fall within the confines of the authorizing statute. The petition for rehearing is denied.
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