The opinion of the court was delivered by: BYERS
This habeas corpus proceeding requires decision concerning the legality of the detention of the relator on the ship Seafarer, on its arrival in this port on May 9, 1951, pursuant to order of an immigrant inspector acting under the applicable statute and regulations. The basis of the order was that the relator was excludable as an alien seeking admission to the United States.
The facts are not in dispute and may be briefly stated: Kustas, a Greek, first arrived here in 1940 as a seaman and remained beyond the permitted period, and later departed voluntarily. He has come and gone frequently during the intervening years, incidentally marrying a citizen here and becoming the father of two children, the wife and children being locally resident.
Since 1943 he has often been a member of the crew of American ships, and has been passed by the Coast Guard for such service. On the argument this was called 'screening', but just what that involved has not been made clear, i.e., the office and gauge of the mesh has not been stated, nor the possible flexibility of the 'screen' itself.
In November of 1950 he signed on the S.S. Steel Seafarer in New York, for a foreign voyage and return; upon arrival, first at Boston and then in New York, he was ordered to be detained and temporarily excluded; his detention imposed an expense to the ship, which accounts for the appearance of the proctors for the owner in this proceeding; their experience in such cases is attested by reference to many reported decisions which have been consulted.
On the day of the production of the relator, May 21st, it appeared that the ship was about to sail, so upon the consent of the relator's attorneys and the attorney for the Immigration Service, it was agreed that the Immigration Authorities would take the relator into custody, at the expense of the owners of the ship, pending the filing of a return and such further proceedings as might ensue on the adjourned day, May 28th. That arrangement was stated and understood to be without prejudice, which means that, for present purposes, the relator is deemed to be on the ship in this port.
The relator's status resembles that of Colovis in United States ex rel. United States Lines, on Behalf of Colovis v. Watkins, 2 Cir., 170 F.2d 998, but a different statute and regulation are involved.
On the arrival of Kustas in Boston on May 7, 1951, as a member of the crew, he is deemed to have applied for admission to the United States under Section 3(5) of the Immigration Act, 8 U.S.C.A. § 203(5). Thus Paragraph 1 of the Return, admitted in the Traverse.
See also, Lewis v. Frick, 233 U.S. 291 at page 297, 34 S. Ct. 488, 58 L. Ed. 967; United States ex rel. Volpe v. Smith, 289 U.S. 422 at page 425, 53 S. Ct. 665, 77 L. Ed. 1298.
His application led to an examination by the immigrant inspector at Boston, and resulted in the order of detention which has been recited; in other words, he has been denied shore leave, and the Immigration and Naturalization Service rely upon the statute, Title 8 U.S.C.A. § 137 et seq., as amended September 23, 1950, and Title 8, Code of Federal Regulations, Sections 174.2, 174.4 as promulgated thereunder, and 120.19 to sanction that denial.
The only administrative determination set forth in the return is: '7. The information upon the basis of which the immigrant inspector ordered the relator detained on board has been classified as confidential by the Commissioner of Immigration and Naturalization and may not be revealed.'
The return itself is signed by an attorney 'in the office of the District Counsel, Immigration and Naturalization Service, United States Department of Justice', and he does 'certify and make return to the writ of habeas corpus based upon the records' of the Service.
I should suppose that so important a classification should be certified to by the Commissioner himself or a deputy having personal knowledge, to obviate any possible confusion between this case and that of another.
For convenient reference, the section of the statute involved and the ...