171 F.2d 431 | 2d Cir. | 1948
Each of the appellants is a person of German origin who is in the custody of the appellee by virtue of an order by the Attorney General that he be removed from the United States as an alien enemy pursuant to 50 U.S.C.A. § 21 and Presidential Proclamation No. 2655, 59 Stat. Part 2, 870. Their appeal presents four contentions: (1) The Presidential Proclamations do not authorize internment or removal under § 21 of title 50; (2) due process of law requires hearings of a judicial nature, which were not had; (3) the Alien Enemy Act and the Proclamations thereunder should not be enforced after the termination of hostilities; (4) an alien must be given a reasonable time within which to depart voluntarily without interference by the Government through communications with foreign nations.
Despite numerous decisions
Points (2) and (3) of the appellants’ contentions have been authoritatively decided adversely to them and need no further discussion. Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429.
Point (4) is based upon the appellee’s admission that the State Department has transmitted to various nations “blacklists” containing the relators’ names and informing these nations that they were deemed dangerous alien enemies and might therefore be persona non grata to the nations to which the lists were delivered. An alien must be afforded the privilege of voluntary departure before the Attorney General can lawfully remove him against his will. United States ex rel. Von Heymann v. Watkins, 2 Cir., 159 F.2d 650. The appellants argue that circulation of the “blacfdists” is an interference with the alien’s privilege of voluntary departure, and that such interference must be ended before the power of compulsory removal can be exercised by the Attorney General. The district court rightly held the contrary. The privilege of voluntary departure does not imply that the alien must be able to go to the country of his choice. So long as there is any foreign country to which he could have gone, his failure to go there is a “neglect” or “refusal” to depart voluntarily. Hence a communication by the State Department to a foreign country, which that country may or may not heed, cannot be regarded as an unlawful restraint on the alien’s voluntary departure. The relators have had ample time to arrange to leave the United States and have made no showing that it was impossible for them to do so.
Finding no error in dismissal of the writ, we affirm the order, but without prejudice to the rights of the three appellants whose certificates of naturalization were cancelled by judgments rendered on default, to apply for a new writ in the event that the Supreme Court shall rule that default judgments of denaturalization are invalid. That issue is now pending in the case of Klapprott v. United States, 3 Cir., 166 F.2d 273, certiorari granted 334 U.S. 818, 68 S.Ct. 1086.