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UNITED STATES EX REL. LEE AH YOUW v. SHAUGHNESSY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 18, 1952

UNITED STATES ex rel. LEE AH YOUW et al.
v.
SHAUGHNESSY

The opinion of the court was delivered by: MURPHY

This is an order to show cause why a petition for a writ of habeas corpus should not be permitted to be filed by Lee Ah Youw, Lee Ah Yang and Young Boon Ming, all in the custody of the Immigration and Naturalization Service of the United States. The proceeding having been argued by counsel as if a petition had been filed, the matter will accordingly be disposed of. Only the case of Lee Ah Yang is discussed in this opinion.

Lee Ah Yang, a native and citizen of China, entered the United States as a seaman for shore leave only while his vessel remained in port on August 7, 1950. Having remained longer than the twenty-nine days permitted by law, an immigration warrant of arrest was issued and executed, and after a hearing on March 1, 1951 his deportation was ordered. His appeal to the Board of Immigration Appeals was dismissed on July 24, 1951, thereby making final the determination of his deportability. Subsequently he made application for adjustment of his immigration status as a displaced person under Section 4 of the Displaced Persons Act of 1948, 50 U.S.C.A.Appendix, § 1951 et seq. This proceeding challenges the continuation of detention of the petitioner who has been in custody since January 25, 1951 and who has not yet been deported.

 Prior to the adoption of the Internal Security Act of 1950, Section 20 of the Immigration Act of February 5, 1917, 39 Stat. 890, 8 U.S.C.A. § 156, made release of an alien taken into custody discretionary with the Attorney General under certain conditions 'pending the final disposal of the case'. *fn1" The statute made no provision with respect to release or detention during the period between final disposal of his case and actual departure of the alien. The Internal Security Act in amending this section undertook to make such provision. Act of September 23, 1950, c. 1024, Title I sec. 23, 64 Stat. 1010, 8 U.S.C.A. § 156(a). *fn2" The amending statute divides the period between final determination and actual departure into two parts. The first part consists of six months during which the Attorney General is to effect departure. During this time the statute expressly makes discretionary with him the alien's detention, release on conditional parole, or upon bond. The second part begins six months after the order of deportation and provides that 'the alien shall become subject to such further supervision and detention pending eventual deportation as is authorized hereinafter in this section.' (Id.) The problem presented by the instant case is that although the statute subjects the alien involved to 'supervision and detention * * * as is authorized hereinafter * * * ', the statute thereinafter expressly provides only for 'supervision under regulations prescribed by the Attorney General.' *fn3" And the regulations adopted by the Attorney General follow closely those which the statute requires him to make and cover only supervision of aliens so circumstanced. *fn4" The only 'detention * * * authorized hereinafter' consists of that necessarily involved in proceedings after arrest of an alien who has wilfully violated these statutory or administrative provisions for supervision, which violation is made felonious under the statute. 8 U.S.C.A. § 156(b), note 3 supra.

 So far then as Lee Ah Yang is concerned, since the expiration of six months from the final determination of his deportability on July 24, 1951, he has been subject lawfully only to supervision under these statutory and administrative provisions, and not to detention. It has been urged that this interpretation of the statute runs afoul of the rule against surplusage since economic use of verbiage would effectuate such result merely by use of the word 'supervision' alone, rather than by the redundant 'supervision and detention' as it appears in the phrase under consideration. Yet application of the identical rule against surplusage would make absurd the contrary construction of the statute so as to permit either detention or release under supervision in the discretion of the Attorney General after six months have expired from the date of final determination of deportability. For such construction would nullify the six month period repeatedly mentioned in the statute. The alien under final order of deportation would be in an identical position after expiration of the six month period as he concededly is during that period with respect to detention in discretion of the Attorney General.

 This determination with respect to the rights of Lee Ah Yang does not restrict the administrator from ordering him to produce himself at a time and place reasonably designated in order to effectuate his departure under the order of deportation. Cf. 8 U.S.C.A. § 155. And see Wong Wing v. United States, 163 U.S. 228, 235, 16 S. Ct. 977, 41 L. Ed. 140.

 Petition denied with respect to Lee Ah Youw and Young Boon Ming.

 Petition granted to the extent indicated with respect to Lee Ah Yang.


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