Opinion
No. 268, Docket 21359.
Argued May 9, 1949.
Decided June 7, 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 relation of Lee Wo Shing, against W. Frank Watkins, District Director of Immigration for the District of New York. From an order of the District Court for the Southern District of New York dismissing the writ, relator appeals.
Affirmed.
Abraham Lebenkoff, New York City, for appellant.
John F.X. McGohey, United States Attorney, New York City (William J. Sexton, Assistant United States Attorney, New York City, of counsel), for appellee.
Before CHASE, CLARK, and DOBIE, Circuit Judges.
The appellant is a native citizen of China who last entered the United States at the Port of New York on July 22, 1943, as a member of the crew of the S.S. "Glenbeg" and there deserted his ship. In 1947, he was arrested on a warrant charging him with being illegally in this country and, after a hearing on November 17, 1947, before a Presiding Inspector of the Immigration and Naturalization Service, his deportation was recommended. The Acting Commissioner of Immigration and Naturalization then ordered his deportation and this order was affirmed by the Board of Immigration Appeals. On his petition, a writ of habeas corpus was thereafter issued which was dismissed upon hearing and this appeal followed.
The sole question raised by this appeal is whether the hearing given the appellant before he was ordered deported was unlawful because it was not before an examiner appointed as provided in Section 11 of the Federal Administrative Procedure Act of 1946, 5 U.S.C.A. § 1010, and not conducted in accordance with the provisions of that Act. Following our decision in Azzollini et al. v. Watkins, 2 Cir., 172 F.2d 897, we hold that the above statute does not apply.
Order affirmed.