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UNITED STATES EX REL. CONSOLA v. KARNUTH

June 30, 1945

UNITED STATES ex rel. CONSOLA
v.
KARNUTH, District Director of Immigration and Naturalization



The opinion of the court was delivered by: KNIGHT

Application is made herein for a writ of habeas corpus to inquire into the legality of the detention of relator, held for deportation under a warrant issued by the Assistant to the Secretary of Labor on December 16, 1938. Theretofore and in or about October, 1937, a warrant of deportation was issued by the Secretary of Labor to deport relator to Italy. This warrant was set aside by this court through habeas corpus proceedings (D.C., 25 F.Supp. 902), and thereafter the warrant first herein mentioned was issued. Petitioner again applied for a writ, the application was dismissed (D.C., 27 F.Supp. 461), and on appeal the order of dismissal was affirmed on December 18, 1939 (2 Cir., 108 F.2d 178). The order of this court on the mandate of the Circuit Court was entered on January 12, 1940. Thereafter and on about February 1, 1940, the petitioner was ordered to appear before the District Director of Immigration, and he was released under bond. The petitioner on May 25, 1945, was ordered to report for deportation.

The details of the foregoing proceedings are here given for the reason that the petitioner herein makes the point that the warrant was not executed within a reasonable length of time; that no excuse has been shown for the delay, and it is, therefore, now 'functus officio.' Petitioner concedes that the period of time after World War 2 broke out between the United States and Italy on December 11, 1941, till Italy was conquered is not to be considered as any part of any unnecessary delay. We are, therefore, concerned only with the period of time from January 12, 1940, to December 11, 1941, and the period which has elapsed since Italy was conquered by the Allies. It appears from the affidavit of the respondent that subsequent to the entry of the 'order on the said mandate' the attorney for the petitioner requested and was granted delay in deportation in order that an application for a writ of certiorari might be made to the Supreme Court, and th respondent was directed by the Commissioner of Immigration and Naturalization to release petitioner upon the giving of a sufficient bond in order that such application for a writ might be made. No application for any writ was made. In March, 1940, a private bill was introduced in Congress for the relief of petitioner from the deportation order. Deportation was stayed pending action on such bill, and the then Session of Congress adjourned on January 3, 1941, without having passed the bill. While as pointed out the war between the United States and Italy was declared on December 11, 1941, war in Europe began September 1, 1939. It also appears from the affidavits on behalf of the respondent that deportation of aliens to Italy had largely ceased in the fall of 1940, due to the European war; that the policy of the Immigration and Naturalization Service during and after the summer of 1940 was temporarily to stay the deportation of aliens when, because of hostilities abroad, deportation would endanger the life or health of such persons, and this policy continued until deportation became impossible because of the United States entry into the war. It seems quite apparent that there has been no unreasonable delay in the execution of the warrant herein.

 Since relator was released on bond to the Immigration and Naturalization Service on February 2, 1940, he has never been held in jail and has only been held by that authority for a few minutes on May 26, 1945, when he was notified to appear for deportation. On that day the application for the writ herein was made and the respondent then admitted to bail. During the interim since the first warrant for deportation herein was issued to the present time, the relator, it appears, has engaged in and has built up for himself a business as a distributor of soft drinks.

 Conditions, as hereinbefore mentioned, have been such as to warrant the delay in carrying out the warrant of deportation. On behalf of petitioner numerous cases have been cited in which the question of delay in the execution of warrants of deportation was considered. Most of the cases arose while a relator was being held in prison. Some of these also were cases in which the warrant could not be carried out lacking a country or a port to which the alien could then be deported. In practically all of the cases cited by relator the writs were dismissed. *fn1" Seif v. Nagle, 9 Cir., 14 F.2d 416, 417, is comparable on the facts with the instant case in that more than ten years had elapsed after the issuance of the warrant of deportation. There the Circuit Court affirmed the order of the District Court denying the writ. The court said

 'It is urged that the Secretary of Labor and Commissioner of Immigration have waived the right to deport in that they have waited an unreasonable time after the Department of Labor assumed jurisdiction of the detained. We find no merit in the point.'

 There can be no question that an alien can not be held either in jail or for deportation for an unreasonable length of time, but such time is to be determined by existing circumstances. In Moraitis v. Delany, D.C., 46 F.Supp. 425, 431, the court said:

 'What constitutes a reasonable time for detention of petitioner in custody for deportation depends upon the facts and circumstances of particular cases.'

 In United States ex rel. Ross v. Wallis, 2 Cir., 279 F. 401, 403, the court said:

 'What is a reasonable time varies with circumstances; during the World War it was a matter of even judicial cognizance that opportunities for deportation were rare and long delayed.'

 See also Janavaris v. Nicolls, D.C., 47 F.Supp. 201.

 None of the cases cited on behalf of the petitioner support his contention, and the majority of them in the expression of the opinions hold with the respondent.

 A point made by the petitioner is that the warrant dated December 16, 1938, and issued by the Assistant to the Secretary of Labor, is legally void because the power to deport aliens rests exclusively with the Department of Justice.

 The 'Immigration and Naturalization Service' and the office of 'Commissioner of Immigration and Naturalization' were created under those names as a part of the Department of Labor by Executive Order No. 6166 dated June 10, 1933, 5 U.S.C.A. § 132 note. These divisions of the Department of Labor continued until the 'Immigration and Naturalization Service' was transferred from the Department of Labor to the Department of Justice under Reorganization Plan V, effective June 14, 1940, 5 U.S.C.A.following section 133t pursuant to the provisions of the Reorganization Act of April 3, 1939, approved April 3, 1939, 53 Stat. 561. The Reorganization plan included the office of the Commissioner of Immigration and Naturalization, and the functions of the Immigration and Naturalization Service of the Department of Labor were transferred to the Department of Justice. Section 8(a) of the Reorganization Act of 1939 provides:

 'All orders, * * * issued, or granted by or in respect of any agency or function transferred to, or consolidated with, any other agency or function under the provisions of this title, and in effect at the time of the transfer or consolidation, shall continue in effect to the same extent as if such transfer ...


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