FOSTER, District Judge.

In this case Alfred Ruiz, an alien, prays for a writ of habeas corpus to deliver him from the custody of the Commissioner of Immigration at New Orleans and the keeper of the parish prison, where he is incarcerated. It appears that the relator, a- native of Spain, but now a citizen of the republic of Panama, came to the United States from- Panama on the steamship Meltonian, and landed at Mobile on the 23d of December, 1909, bringing with him a prostitute, whose fare he paid, and who posed as his wife. He is now held by the Commissioner of Immigration under a warrant ordering his deportation to Spain.

[1] The immigration laws clearly contemplate the deportation of. aliens to the country whence they came when they illegally entered the United States, regardless of their nativity. The only exception is when an alien, intending to enter the United States, for the convenience of his voyage lands first in foreign territory contiguous to the United States. I do not find that the Secretary of Commerce and Eabor has any discretion whatever in the matter, and any warrant that-attempts to exercise such discretion is necessarily illegal and void.

[2] Strictly speaking, the deportation of an alien is a civil proceeding ; but it is criminal in its nature, or at least by analogy, and the general rule in habeas corpus is that, where a sentence is illegal, the relator is entitled to his liberty. The exception is that, when the lawful portion of the sentence can be separated from the illegal part, the relator will only be granted relief as to the unlawful detainment. But how can a separation be effected in this case. If the relator remains in custody, he will be illegally deported, and it will then be too late to afford him the relief to which he is entitled.

.The writ will be made absolute.