Summary
In United States ex rel. Walther v. District Director of Immigration Naturalization, 2 Cir., 175 F.2d 693, the court considered the identical question with which we are now confronted upon a similar state of facts.
Summary of this case from Petition of KavadiasOpinion
No. 2631, Docket 21350.
Argued June 10, 1949.
Decided June 20, 1949.
Appeal from the United States District Court for the Southern District of New York.
Habeas corpus proceeding by the United States of America on the relation of Kurt Karl Otto Walther against the District Director of Immigration and Naturalization, Ellis Island, New York Harbor. From an order dismissing the writ, the relator appeals.
Order vacated and case remanded with directions.
Appellant, a native of Germany, illegally entered this country in 1939. He has a wife and two infant children, all born in the United States and dependent entirely on him for support. He served in the American Navy during World War II, beginning in September, 1943, and was honorably discharged on October 27, 1945. On January 24, 1946, a warrant of arrest was issued charging him with being illegally in this country. After hearings, he was ordered deported to Germany; but the Board of Immigration Appeals, on December 3, 1946, gave him the right to depart to any country of his own choice within six months. On December 27, 1946, he filed an application for naturalization. At that time, his illegal entry would have prevented his becoming a citizen. On June 1, 1948, there went into effect 8 U.S.C.A. § 724a. On June 10, 1948, the Board ordered him deported, and a warrant of deportation was issued that day. He moved for withdrawal of that warrant, but the Board denied this motion on September 17, 1948. On November 9, 1948, he applied for a stay of deportation pending the outcome of his application for naturalization. The Commissioner, on November 30, 1948, denied this application. On November 30, 1948, his wife filed a petition for habeas corpus. On the return to the writ and argument, the district court dismissed the writ.
8 U.S.C.A. § 155(c) provides in part: "In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * suspend deportation of such alien if not racially inadmissible or ineligible to naturalization in the United States if he finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien."
8 U.S.C.A. § 724a, added June 1, 1948, reads in part: "(a) Any person not a citizen who has served honorably in an active-duty status in the military or naval forces of the United States during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or who if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if (1) at the time of enlistment or induction such person shall have been in the United States or an outlying possession (including the Panama Canal Zone, but excluding the Philippine Islands), or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence. The executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions: Provided, however, That no person who is or has been separated from such service on account of alien-age, or who was a conscientious objector who performed no military or naval duty whatever or refused to wear the uniform, shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section. (b) A person filing a petition under subsection (a) of this section shall comply in all respect with the requirements of this chapter except that — * * * (2) no declaration of intention, no certificate of arrival, and no period of residence within the United States or any State shall be required. * * *"
John F.X. McGohey, United States Attorney for the Southern District of New York, New York City (W.J. Sexton, New York City, of counsel), for respondent-appellee.
Isaac Shorr, New York City, for relator-appellant.
Before L. HAND, CLARK and FRANK, Circuit Judges.
1. Putting to one side for a moment Section 724a, the Attorney General's action under Section 155(c) would be final. The word "may" in that section confers discretionary unreviewable power.
2. But Section 724a was enacted before appellant's deportation. Appellee, on oral argument in this court, did not dispute appellant's contention that that section removes an illegal entry as a barrier to naturalization. We do not now so decide. But we think that that question should be canvassed in the naturalization proceedings. If that section is held to remove that barrier, and if appellant otherwise satisfies the provisions of the statute, the deportation order should be quashed.
Accordingly, we vacate the order dismissing the habeas corpus writ; the habeas corpus petition is to remain undecided in the district court until the naturalization proceeding is concluded; the deportation order and warrant are meanwhile stayed.