187 F.

2d 912

UNITED STATES ex rel. JAEGELER

v.
UGO CARUSI et al.
No. 10373.

United States Court of Appeals Third Circuit.

Argued March 5, 1951.
Decided April 2, 1951.

Gordon Butterworth, Philadelphia, Pa. (George Dix, Philadelphia, Pa., on

the brief), for appellant.
James P. McCormick, Asst. U.S. Atty., Philadelphia, Pa. (Gerald A.
Gleeson, U.S. Atty., Philadelphia, Pa., F. W. Braden, District
Adjudications Officer, Immigration and Naturalization Service,
Philadelphia, Pa., on the brief), for appellees.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.

This is an appeal from the dismissal of a writ of habeas corpus by the court
below.

Appellant is a German national. He came to this country as a quota immigrant

in 1925. With the exception of a visit to Germany in 1933 he seems to have
been here ever since. On December 9, 1941, he was taken into custody as an
enemy alien. Following a hearing before an Alien Enemy Hearing Board at
Philadelphia, and on the Board's recommendation to the Attorney General,
appellant was interned for the duration of the war emergency.

In October 1945, at his request, he was given a hearing before a Repatriation

Hearing Board. That Board recommended his removal from the United States
because 'he was determined to be dangerous to the public peace and safety of
the United States.' On May 3, 1946 appellant was notified by the Attorney
General of a direction for his removal. On April 2, 1947 he was advised by the

Immigration and Naturalization Service of the Department of Justice that under

the terms of his removal order he could proceed to any country of his choice ' *
* * if arrangements can be made.' On April 15, 1947 he was given a thirty day
parole to afford him an opportunity to make such arrangements. He was further
advised that if he was unsuccessful in departing from the United States
immediate steps would be taken to proceed with removal arrangements and that
no extension of the thirty day parole could be granted because of failure to
secure permission to enter some other country.
4

On May 15, 1947 his petition for a writ of habeas corpus was filed. The writ
was allowed on June 16, 1947. Thereafter there was a motion to dismiss which
was denied. D.C., 72 F.Supp. 805. A motion for reargument was also denied.
Following that, considerable time necessarily elapsed in connection with
awaiting the progress to, and decision by, the Supreme Court of a case which in
some respects resembled the one at bar. 1 Finally, on October 9, 1950, the writ
of habeas corpus was dismissed.

Appellant in his first point complains of the hearings accorded him on the
ground that they did not conform to judicial procedure.

The President's power to act, as he here acted, stems out of the Alien Enemy
Act of 1798 which, with some inconsequential amendments, is the law today.
That statute reads:

'Whenever there is a declared war between the United States and any foreign
nation or government, or any invasion or predatory incursion is perpetrated,
attempted, or threatened against the territory of the United States by any foreign
nation or government, and the President makes public proclamation of the
event, all natives, citizens, denizens, or subjects of the hostile nation or
government, being of the age of fourteen years and upward, who shall be within
the United States and not actually naturalized, shall be liable to be
apprehended, restrained, secured, and removed as alien enemies. The President
is authorized, in any such event, by his proclamation thereof, or other public
act, to direct the conduct to be observed, on the part of the United States,
toward the aliens who become so liable; the manner and degree of the restraint
to which they shall be subject and in what cases, and upon what security their
residence shall be permitted, and to provide for the removal of those who, not
being permitted to reside within the United States, refuse or neglect to depart
therefrom; and to establish any other regulations which are found necessary in
the premises and for the public safety.' Act of July 6, 1798, 1 Stat. 577,
R.S.Sec. 4067, as amended, 40 Stat. 531, 50 U.S.C.A. 21.

Proceeding under this Act, in 1945, the President issued his Proclamation 2655,
10 Fed.Reg. 8947, 59 Stat. 870. This directed the removal from the United
States of all alien enemies 'who shall be deemed by the Attorney General to be
dangerous to the public peace and safety of the United States.' It was under that
proclamation that appellant's removal was ordered.

From the beginning, the Act of 1798 has been uniformly recognized as not
subject to judicial review. Case of Fries, C.C.D.Pa., 9 Fed.Cas p. 827, No.
5126; Brown v. United States, 8 Cranch 110, 3 L.Ed. 504; Lockington v. Smith,
C.C.D.Pa., 15 Fed.Cas. p. 758, No. 8448.2 And as Mr. Justice Frankfurter said
in Ludecke v. Watkins, 335 U.S. 160 at pages 165 and 166, 68 S.Ct. 1429, at
page 1431, 92 L.Ed. 881:

10

'The power with which Congress vested the President had to be executed by
him through others. He provided for the removal of such enemy aliens as were
Deemed by the Attorney General' to be dangerous. But such a finding, at the
President's behest, was likewise not to be subjected to the scrutiny of courts.
For one thing, removal was contingent not upon a finding that in fact an alien
was 'dangerous.' The President was careful to call for the removal of aliens
'deemed by the Attorney General to be dangerous.' But the short answer is that
the Attorney General was the President's voice and conscience. A war power of
the President not subject to judicial review is not transmuted into a judicially
reviewable action because the President chooses to have that power exercised
within narrower limits than Congress authorized.'

11

Appellant next urges that his right to voluntary departure has been effectively
nullified by the action of the United States in requesting foreign governments
not to grant him a visa and in notifying the Alcoa Steamship Company of
refusal by friendly governments of visas. He asks for opportunity to prove that
visas were refused him because of those acts.

12

As above outlined, the Attorney General advised appellant that under the terms
of the removal order affecting him ' * * * you may proceed to any country of
your choice, if arrangements can be made'. Appellant offered to show below
that he unsuccessfully attempted to secure a departure visa to every or any
known, what he calls, 'friendly country outside of the United States.' A letter
from the State Department to Alcoa Steamship Company is an exhibit in the
case. In that letter the Department notified the steamship company that certain
German nationals, including appellant, had been determined to be dangerous to
hemispheric or national security; that the United States ' * * * is issuing orders
directing these individuals to depart from the United States within thirty days

and stating that if at the end of that period the alien will not have effected this
departure, he will be removed to Germany.' The letter suggested that great care
be taken to make certain that visas presented by any of the aliens listed were
currently valid. It concluded by stating, 'This letter is not to be construed as a
request that you deny to any individual transportation to a country which is
actually willing to admit him.'
13

It is not disputed that the appellant was notified to leave the United States and
was given at least thirty days to accomplish that result. But, says appellant, the
actions of the United States in fact prevented him from so doing. Appellant
alleges this as the sole reason his departure was rendered impossible.

14

The government concedes that it sent out to friendly governments and to the
particular steamship company, information that appellant was deemed a
dangerous alien enemy. That notification did not necessarily preclude
acceptance of a person so listed by one or more of the countries circularized.
And there is no contention by appellant that the United States similarly advised
all countries throughout the world. Among other nations not so notified are
Germany, Austria, India, Yugoslavia, Iraq, China, Russia, Czechoslovakia,
Romania, Hungary, Bulgaria and Albania. Appellant objects to going back to
Germany where he was born. Nor does he wish to go to Russia or to any of its
satellites. But he would seem to have a wide choice aside from those nations.
For example, Austria, India and Yugoslavia. There is no pretense of an
endeavor to obtain a departure visa for any of those countries. It would seem
that appellant was faced with no real dilemma. He just did not bother. His
choice was not confined to Germany or Russia and those unfortunate lands
dominated by the latter. Even if it had been, the statute does not provide that
the alien subject to its mandate be cleared to whatever nation he might select.
The Act merely allows that alien to leave this country voluntarily. As was said
in United States ex rel. Dorfler v. Watkins, supra, 171 F.2d at page 432, 'So
long as there is any foreign country to which he could have gone, his failure to
go there is a 'neglect' or 'refusal' to depart voluntarily. Hence a communication
by the State Department to a foreign country, which that country may or may
not heed, cannot be regarded as an unlawful restraint on the alien's voluntary
departure. The relators have had ample time to arrange to leave the United
States and have made no showing that it was impossible for them to do so.'

15

As indicated in the above quoted language from the Dorfler decision, the action
of the United States in warning its neighbors on this continent and its friends
abroad regarding appellant cannot be fairly regarded as infringing on any
obligation it may owe appellant. This nation has the right and duty to protect
itself directly and indirectly against dangerous alien enemies. The Attorney

General, functioning for the President, has deemed appellant to be in that

category. He is being removed from the United States for that reason. Ordinary
precaution requires that our allies and potential allies be warned in order that
they may at least have the opportunity of passing upon the advisability of
permitting the entrance and acceptance of such person into their territory. Our
government cannot be justly said to be thereby interfering with Jaegeler's
choice of domicile. The situation was created by appellant himself and merely
recognized by the Attorney General for what he deemed it to be. Thereafter
under the powers properly delegated to him by the President he took steps to
prevent it from causing harm to the United States or its allies.
16

The opinion in United States ex rel. Von Heymann v. Watkins, 2 Cir., 159 F.2d
650, 653, is in nowise contrary to the views expressed. In that decision the court
considered that the relator was being held in restraint on Ellis Island for the
purpose of removal to Germany. The court found that under those
circumstances it did ' * * * not appear that this relator has ever refused, or
except because of his internment, ever neglected, to depart.' In the present
appeal, Jaegeler had been served with the thirty day order and was in fact
paroled during that time to give him the chance, if he desired, of departing
voluntarily. United States ex rel. Hoehn v. Shaughnessy, 2 Cir., 175 F.2d 116,
117, certiorari denied 338 U.S. 872, 70 S.Ct. 142, is also cited by appellant.
There, with the same sort of notice to foreign governments involved, the alien
did not try to leave this country of his own free will. The court said that,
assuming such notice, ' * * * it would not help the appellant in the absence of
any indication that he tried to depart voluntarily and was, for that reason,
unable to do so.' As already pointed out, it is enough to say in this connection
that there is a total absence of a bona fide attempt by Jaegeler, even on his own
invalid theory, to enter any one of several countries open to him and not
included in the ideological objections he makes.

17

Lastly, appellant argues that the removal order was in violation of international
treaties and agreements to which the United States was and is a party. There is
no merit in the point and no need for discussion of it.

18

The order of the District Court of October 9, 1950, dismissing the writ of
habeas corpus, will be affirmed.

United States ex rel. Dorfler v. Watkins, 2 Cir., 171 F.2d 431, certiorari denied
337 U.S. 914, 69 S.Ct. 1154, 93 L.Ed. 1724

See also United States ex rel. Kessler v. Watkins, 2 Cir., 163 F.2d 140; United
States ex rel. Hack v. Clark, 7 Cir., 159 F.2d 552; United States ex rel.
Schlueter v. Watkins, 2 Cir., 158 F.2d 853; Citizens Protective League v. Clark,
81 U.S. App.D.C. 116, 155 F.2d 290