The opinion of the court was delivered by: COOPER
Relators, Esterya Menon and her minor child Ruby Rebecca Menon, by this habeas corpus proceeding challenge the validity of an exclusion order and a subsequent notice which direct that they be deported to Turkey from New York on October 27, 1965.
Relators are under an order of exclusion pursuant to Section 236 of the Immigration and Nationality Act of 1952, 66 Stat. 200, 8 U.S.C. § 1226. Judicial review of such order is only obtainable through a habeas corpus proceeding as provided for by 8 U.S.C. § 1105a(b). One of the traditional prerequisites for the writ's issuance was that the relator be in actual "physical" custody.
Although the immigration authorities were not in physical custody of the relators on October 26, 1965 when the writ in the instant proceeding was issued, the Court's granting of the writ was supported by the authority of Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963). See Varga v. Rosenberg, 237 F. Supp. 282, 285-286 (S.D.Cal.1964).
The writ brings into question not only the lawfulness of the final order of exclusion, but also the lawfulness of the place of deportation fixed by the immigration officials. United States ex rel. Karamian v. Curran, 16 F.2d 958 (2d Cir. 1927); United States ex rel. Chen Ping Zee et al. v. Shaughnessy, 107 F. Supp. 607, 609 (S.D.N.Y.1952). As authorized by statute, 8 U.S.C. § 1227(a), the place of deportation applicable to those excluded
is the "country whence he came."
At the close of the exclusion proceedings which were held in response to Mrs. Menon's application of admission for temporary residence, the special inquiry officer rendered his decision on October 16, 1964. It ordered applicants excluded from admission to the United States.
This order was subsequently appealed to the Board of Immigration Appeals. The Board entered an order on April 6, 1965 sustaining the appeal and directing that the applicants be admitted as nonimmigrant visitors for pleasure for a period of three months under such conditions, including the exaction of a bond, as the District Director might wish to impose. No bond was posted. On July 13, 1965 the Board withdrew its order of April 6, 1965 and affirmed the October 16, 1964 order of the Special Inquiry Officer (the validity of which is reviewable in this proceeding).
The inquiry officer's findings of fact were adequately substantiated by the evidence in the administrative record, and are to be accorded great weight under the Act. See 8 U.S.C. § 1105a(a)(4). Both Mrs. Menon and her daughter are citizens of Turkey; they last arrived in the United States by train from Canada on June 25, 1964, and were "paroled" into this country in connection with their admission application. The inquiry officer found that Mrs. Menon had no residence in a foreign country; that she had no intention of leaving the United States within a fixed, definite period of time; and that she was likely to become a public charge.
Appearing pro se in open court in the instant proceeding, Mrs. Menon was later afforded an opportunity to be represented by Jules H. Coven, Esq. who appeared without fee.
VALIDITY OF ORDER OF EXCLUSION
There appearing to be no genuine issue of material fact, this Court is satisfied that as a matter of law
the order of October 16, 1964 (see note 2) excluding the aliens, is valid.
As indicated, the place of deportation applicable to those excluded is the "country whence he came," and is an appropriate subject of inquiry in a habeas corpus proceeding even though the alien is properly deportable as here. The phrase, "country whence he came," has been variously construed since its inception in the Immigration Act of 1907, 34 Stat. 904, 905.
In re Milanovic, supra note one, is similar to the fact situation presented here. The Court in Milanovic found that Yugoslavia, the country of origin, was not the country from whence the alien came. Relator in that case fled from Yugoslavia, had thereafter lived in several temporary residences, and had formulated the intention to come to United States while in Belgium. The Court held that Belgium was the country from ...