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United States v. Carusl

decided.: April 2, 1951.


Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is an appeal from the dismissal of a writ of habeas corpus by the court below.

Appellant is a German national. He came to this country as a quota immigrant in 1925. With the exception of a visit to Germany in 1933 he seems to have been here ever since. On December 9, 1941, he was taken into custody as an enemy alien. Following a hearing before an Alien Enemy Hearing Board at Philadelphia, and on the Board's recommendation to the Attorney General, appellant was interned for the duration of the war emergency.

In October 1945, at his request, he was given a hearing before a Repatriation Hearing Board. That Board recommended his removal from the United States because "he was determined to be dangerous to the public peace and safety of the United States." On May 3, 1946 appellant was notified by the Attorney General of a direction for his removal. On April 2, 1947 he was advised by the Immigration and Naturalization Service of the Department of Justice that under the terms of his removal order he could proceed to any country of his choice "* * * if arrangements can be made." On April 15, 1947 he was given a thirty day parole to afford him an opportunity to make such arrangements. He was further advised that if he was unsuccessful in departing from the United States immediate steps would be taken to proceed with removal arrangements and that no extension of the thirty day parole could be granted because of failure to secure permission to enter some other country.

On May 15, 1947 his petition for a writ of habeas corpus was filed. The writ was allowed on June 16, 1947. Thereafter there was a motion to dismiss which was denied. D.C., 72 F.Supp. 805. A motion for reargument was also denied. Following that, considerable time necessarily elapsed in connection with awaiting the progress to, and decision by, the Supreme Court of a case which in some respects resembled the one at bar.*fn1 Finally, on October 9, 1950, the writ of habeas corpus was dismissed.

Appellant in his first point complains of the hearings accorded him on the ground that they did not conform to judicial procedure.

The President's power to act, as he here acted, stems out of the Alien Enemy Act of 1798 which, with some inconsequential amendments, is the law today. That statute reads:

"Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety." Act of July 6, 1798, 1 Stat. 577, R.S.Sec. 4067, as amended, 40 Stat. 531, 50 U.S.C.A. ยง 21.

Proceeding under this Act, in 1945, the President issued his Proclamation 2655, 10 Fed.Reg. 8947, 59 Stat. 870. This directed the removal from the United States of all alien enemies "who shall be deemed by the Attorney General to be dangerous to the public peace and safety of the United States". It was under that proclamation that appellant's removal was ordered.

From the beginning, the Act of 1798 has been uniformly recognized as not subject to judicial review. Case of Fries, C.C.D.Pa., 9 Fed.Cas. p. 827, No. 5126; Brown v. United States, 8 Cranch 110, 3 L. Ed. 504; Lockington v. Smith, C.C.D.Pa., 15 Fed.Cas. p. 758, No. 8448.*fn2 And as Mr. Justice Frankfurter said in Ludecke v. Watkins, 335 U.S. 160 at pages 165 and 166, 68 S. Ct. 1429, at page 1431, 92 L. Ed. 881:

"The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were 'deemed by the Attorney General' to be dangerous. But such a finding, at the President's behest, was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon a finding that in fact an alien was 'dangerous.' The President was careful to call for the removal of aliens 'deemed by the Attorney General to be dangerous.' But the short answer is that the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized."

Appellant next urges that his right to voluntary departure has been effectively nullified by the action of the United States in requesting foreign governments not to grant him a visa and in notifying the Alcoa Steamship Company of refusal by friendly governments of visas. He asks for opportunity to prove that visas were refused him because of those acts.

As above outlined, the Attorney General advised appellant that under the terms of the removal order affecting him "* * * you may proceed to any country of your choice, if arrangements can be made". Appellant offered to show below that he unsuccessfully attempted to secure a departure visa to every or any known, what he calls, "friendly country outside of the United States." A letter from the State Department to Alcoa Steamship Company is an exhibit in the case. In that letter the Department notified the steamship company that certain German nationals, including appellant, had been determined to be dangerous to hemispheric or national security; that the United States "* * *is issuing orders directing these individuals to depart from the United States within thirty days and stating that if at the end of that period the alien will not have effected this departure, he will be removed to Germany." The letter suggested that great care be taken to make certain ...

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