The opinion
EDGERTON, Chief Judge
(dissenting).
The question is: If aliens who have long been resident in the United States-choose repatriation to an enemy country in preference to imprisonment in the-United States during a war, and always-intend to return to the United States as soon as the war is over, are they, within the meaning of the Trading with the Enemy Act, “resident” in the enemy country during their sojourn there? I think not.
The District Court made the following undisputed findings, among others. The-requests for repatriation to Germany “were made solely to escape internment and the emotional problems created thereby” and “were clearly limited to-repatriation during the time that intern *640 ment was expected to last, i. e., the duration of the war. * * * Plaintiff and her husband at all times intended to return to the United States after the end of hostilities”. They retained “a fixed determination” to do so. Accordingly, “At no time while they were in Austria or Germany did plaintiff or her husband seek employment or engage in business except for plaintiff’s husband’s employment with the United States Army of Occupation. Plaintiff’s husband was offered opportunities to engage in business in Germany which he did not accept. * * * After plaintiff’s furnishings were stored [here], both she and her husband, while in the United States and in Europe, refused offers to buy their automobile and certain household appliances at premium prices because they planned to use these possessions again upon their return to the United States.”
It is true that Oehmiehen’s place of confinement when he first asked for repatriation was Ellis Island. But he and his wife did not choose to return to Germany in order to avoid Ellis Island. They knew that internment for him was in prospect. The court correctly states that they “chose to return to an enemy country rather than to undergo” internment. Their internment was legal and in accordance with international usage, but it was nonetheless imprisonment. Appellee and her husband never had “any doubt” that they were “in prison”. No one similarly situated would have any doubt. The internment camp was surrounded by a “very high” barbed-wire fence, kept lighted at night. There were watehtowers and armed guards. The shelters had no plumbing. Water had to be carried in pails about a hundred feet. The bathhouses were about .500 feet away from the shelters. The fact that the food was good and there were recreation facilities did not turn the prison into something else.
In explanation of the fact that she and her husband once refused parole, appellee testified: “We felt that parole was like for any ordinary criminal. Mr. Oehmichen would have to report to a parole officer. And Mr. Oehmichen did not want to be in a waiting room with a criminal who might knock him on the shoulder and say: Buddy, how long have you been in? And that was the objection of Mr. Oehmichen to be released on parole. He did not feel he had done anything he needed to be paroled for. * * * He wanted to be released without any ties attached to it. I mean, parole meant that he was paroled of some guilt, which he did not feel he had. There was no guilt. Q Am I correct in saying that he felt by applying for parole, it was acknowledgement of guilt? A That is right. Q And he felt he would be treated as any other criminal? A Any ordinary criminal. Q Now, did you share that feeling, Mrs. Oeh-michen? A At the time, yes.” When they learned that the conditions of parole would be less drastic than they had supposed, appellee requested her husband’s release. Parole was then refused. When they left the United States, the alternative was not parole but continued imprisonment.
I do not reach appellee’s other contention.