United States Ex Rel. Bradley v. Watkins

AUGUSTUS N. HAND, Circuit Judge

(dissenting).

I think the analysis of 8 U.S.C.A. § 203 in the prevailing opinion gives no assurance that upon the discharge of Bradley by the immigration authorities there will be any way of deporting him. It is most unlikely that a man arrested and brought to this country on a man-of-war of the United States can be ordered sent back on the vessel he came on like an immigrant unlawfully brought to our shores by a passenger vessel. Certainly statutory authority is lacking to fine the United States for thus bringing him here, or to order the United States Navy to carry him back. It is harder for me to believe that an alien — who concededly has no right to stay here — cannot be removed, than to believe that' he can be removed under the immigration statute because he is within the definition of 8 U.S. C.A. § 203 which describes an immigrant as “any alien departing from any place outside the United States destined for the United States.”

Bradley literally “departed” from Greenland when he was transported from that country; likewise he was “destined for the United States” when he left Greenland for America.

The majority opinion treats the definition of “immigrant” given in 8 U.S.C.A. § 203 as presupposing a voluntary departure of an alien from foreign country with the intention of entering, the United States as his terminus ad quem, and cites as authority the decision of the Ninth Circuit in Moffitt v. United States, 128 F. 375 381 , which construed the term “alien immigrant,” used in the Act of March 3, 1891, c. 551, 26 Stat. 1084 , as referring only to aliens who leave a foreign shore “to come to the United States for the purpose of becoming a permanent resident here.” But that decision *333 was made in the absence of any congressional definition of the term “immigrant” and was based on a standard dictionary meaning of the word which it was presumed Congress intended to apply. It is, however, now clear that Congress has since displaced that judicial interpretation of the word “immigrant” by its own definition, which is much broader in language and limited only by specific exceptions set forth. The statutory definition first appeared in the Act of May 26, 1924, c. 190, § 3, 43 Stat. 154 , and has been retained unchanged in subsequent reenactments. 8 U.S.C.A. § 203 . Because of the breadth of the statutory definition, Congress has deemed it necessary specifically to except such persons as bona fide alien seamen serving as such on vessels visiting our seaports. It would have been completely unnecessary to make any such exception to its definition of “immigrant” if that' basic definition were no broader than the one used by the court in Moffitt v. United States, 9 Cir., 128 F. 375 , and other early decisions, there cited. See e. g., United States v. Sandrey, C.C., E.D.La., 1891, 48 F. 550, 552, 553 .

It is now asserted that in United States ex rel. Ling Yee Suey v. Spar, 2 Cir., 149 F.2d 881 , the Chinese crew members had come to the United States of their own volition and hence might be said to have “departed” from China “destined” for the United States, even though their physical landing in custody of the police was not an “entry.” But those Chinese sailors were aboard a British vessel which had arrived at the Port of New York from Singapore and was apparently scheduled to return, with its Chinese crew members, to the latter port. It is difficult for me’ to see how the United States there — any more than in the present case — was the terminus ad quem which the aliens had set for themselves for the purpose of becoming permanent residents here, even though at the outset of their voyage from Singapore they may have known that the vessel was due to put in at New York as a port of call during its voyage. In other words, our decision in United States ex rel. Ling Yee Suey v. Spar, supra, filed in June, 1945, necessarily assumed that the statutory definition of “immigrant” first enacted in 1924 superseded the pre-1924 judicial interpretation of the term made in such decisions as Moffitt v. United States, which the majority opinion here cites with approval. Accordingly, there was no less of a departure, “destined for the United States,” in the case at bar than in that of Ling Yee Suey, and the petitioner here is no more entitled to enter the United States without a quota immigration visa than were the petitioners in that case.

In United States ex rel. Von Kleczkowski v. Watkins, D.C., 71 F.Supp. 429 , April 22, 1947, Judge Rifkind was faced with the contention that two enemy aliens brought into the United States involuntarily by the government were not subject to the immigration law and thought the point so clearly settled against them by the present immigration statute that he disposed of it by citing United States ex rel. Ling Yee Suey v. Spar, 2 Cir., 149 F.2d 881 , and nothing more.

It seems to me that the engrafting of a new implied exception into the immigration statutes is likely to give rise to serious future troubles in the interpretation of a mass of statutes that are already difficult and confusing. It may be argued that the situation here presented is unusual and unlikely to recur, but I cannot foresee how many aliens of the sort we have to deal with here may be at large in this country and have more concern lest the decision of the majority should leave the executive without any power either to intern or deport such persons than I have that the latter may be subjected to a somewhat new application of a statute that is broad enough in its terms to include them. I think the order dismissing the writ of habeas corpus should be affirmed.