United States ex rel. Ueberall v. Williams

187 F. 470 | S.D.N.Y. | 1911

HAND, District Judge

(after stating the facts as above). [1] The first question to be determined is whether the relator entered this country within three years of the time of his arrest. Since the decision of the Circuit Court of Appeals of this Circuit, in Re Annie Lapina (Ex parte Hoffman) 179 Fed. 839, 103 C. C. A. 327, this question has been authoritatively settled. I do not see how the duration of the period of absence in a foreign country or its purpose can affect the result. This particular instance is no doubt as extreme as can arise, but it does not effect any change in principle. As soon as the relator entered the Dominion of Canada he left the United States, whether his intention was to remain an hour or a year, and his re-entry was in fact a re-entry as much as that of Lapina in the case cited. Therefore I see no escape from the conclusion that he could legally be deported to the country whence he came by warrant of the Secretary of Commerce and Labor.

[2] Two questions therefore arise: First, whether Austria is the country whence he came; and, second, whether, if this be not so, a writ of habeas corpus can inquire into his proposed destination. 1 do not think that it is necessary to determine the first question, for Í do not see how a writ of habeas corpus can’ review such a mistake, if it be a mistake, on the part of the authorities. That writ inquires simply into' the validity of the relator’s detention, and concededly his detention is legal. Even if it be true that tile Secretary of Commerce and Labor intends to deal illegally with him. and even when that intention appears from the very warrant under which he is detained, the writ on that account could not release him from custody, tmless he has the right to remain in the country, which he has not.

It is suggested that he might he released upon the theory that his detention would become illegal as soon as they did with him what the law does not permit. The difficulty with this argument, however, is that he would none the less he properly in custody and subject to deportation because they were violating the law in sending hint to the wrong place. The detention being legal, at most a court could direct the Secretary of Commerce and Labor to send him to Canada, and not to Austria; but that, of course, no court has jurisdiction to do. It is only after the court lias adjudged that the alien has a right under the statute to remain in the countrv that a writ of habeas corpus can release him. Chin Yow v. U. S., 208 U. S. 8, 12, 28 Sup. Ct. 201, 52 L. Ed. 369.

Whether the relator has airy remedy to control the action of the Secretary of Commerce and Labor, in case he proposes to deal with him contrary to the statute, it is not necessary now to inquire, because it is enough that the scope of this writ is limited to the mere question of his detention, and whether lie is entitled to be free from ..custody. It is, of course, possible to put supposed cases where the action of the Secretary of Commerce and Labor would be of the utmost consequence to the relator, and where, if he were in error, his rights would be much prejudiced by tile decision; but that can in no sense result in releasing him wholly from custody, which is all that he now asks to have.

Writ dismissed, and alien remanded.