CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
Vinson, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge, Burton
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner is detained by respondent under a deportation order, the validity of which is challenged by a petition for a writ of habeas corpus. The District Court granted the petition and discharged petitioner. The Circuit Court of Appeals reversed. 159 F.2d 130. The case is here on a petition for a writ of certiorari which we granted because of the seeming conflict between the decision below and Di Pasquale v. Karnuth, 158 F.2d 878, from the Second Circuit Court of Appeals.
Petitioner is a Mexican citizen who made legal entry into this country in 1923 and resided here continuously until 1942. In June of that year, when this nation was engaged in hostilities with Germany and Japan, he shipped out of Los Angeles on an intercoastal voyage to New York City as a member of the crew of an American merchant ship. The ship was torpedoed after passing through the Panama Canal on its way to New York City. Petitioner was rescued and taken to Havana, Cuba, where he was taken care of by the American Consul for about one week. On July 19, 1942, he was returned to the United States through Miami, Florida, and thereafter continued to serve as a seaman in the merchant fleet of this nation. In March 1944 he was convicted in California of second-degree
robbery and sentenced to imprisonment for a term of one year to life. While he was confined in the California prison, proceedings for deportation were commenced against him under § 19 (a) of the Immigration Act of February 5, 1917, 39 Stat. 874, as amended 54 Stat. 671, 8 U. S. C. § 155 (a).
That section provides in part:
". . . any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. . . ."
Those requirements for deportation are satisfied if petitioner's passage from Havana, Cuba, to Miami, Florida, on July 19, 1942, was "the entry of the alien to the United States" within the meaning of the Act.
In United States ex rel. Claussen v. Day, 279 U.S. 398, United States ex rel. Stapf v. Corsi, 287 U.S. 129, and United States ex rel. Volpe v. Smith, 289 U.S. 422, there is language which taken from its context suggests that every return of an alien from a foreign country to the United States constitutes an "entry" within the meaning of the Act. Thus in the Smith case it was stated, 289 U.S. p. 425, that "any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one" is such an "entry." But those were cases where the alien plainly expected or planned to enter a foreign port or place. Here he was catapulted into the ocean, rescued, and taken to Cuba. He had no part in selecting the foreign port as his destination. His itinerary was forced on him by wholly fortuitous circumstances. If, nonetheless, his return to this country was an "entry" into the United States within the meaning of the Act, the
law has been given a capricious application as Di Pasquale v. ...