To Governments-In-Exile*

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To Governments-In-Exile* NOTES DEPORTATION OF ALIEN SEAMEN OWING ALLEGIANCE TO GOVERNMENTS-IN-EXILE* THE threat to the Allied shipping program arising from desertion of alien seamen in United States ports 1 has occasioned more vigorous eniftrcement of the Immigration Laws. Since desertion is often motivated by the attractive- ness of employment in United States defense industries,2 deportation for surreptitious entry into the country is one method of discouraging it.? From the legal standpoint, it is normally a simple matter to deport an alien unlav- fully in this country. For the statute specifies that deportation of aliens shall "at the option of the Attorney General, be to the country whence they came or to the foreign port at which such aliens embarked for the United States"; and if the Attorney General chooses to deport the alien to the "country whence he came" and that country refuses him, the deportee may then be sent to the state of which he is a citizen.4 But a difficult problem of statutory construc- tion arises when, as in the case of many deserting seamen, the alien was last *Delany v. foraitis, 136 F. (2d) 129 (C. C. A. 4th, 1943). 1. These desertions have, through consequent crew shnrtages, seriously threatened the Allied shipping program by delaying sailings and preventing the efficient transporta- tion of supplies. Desertions have reached a peak of four hundred monthly. See War Shipping Administration, Recruitment and Manning Organization, Information Circular No. 15 (1943). The situation is particularly grave in view of manpower shortage and the irreplaceability of the present crew supply of most of the United Nations owing to enemy occupation of their territory. 2. See Report of the Special Interdepartmental Committee on Maritime Labor (1942) 2-3; War Shipping Administration, Recruitment and Manning Organization, Information Circular No. 4 (1942) 1. 3. See affidavit submitted by Marshall E. Dimuck. Director, Recruitment and Manning Organization, War Shipping Administration, in the case of Delany v. Moraitis, 46 F. Supp. 425 (D. Md. 1942). 4. The statute reads: "The deportation of aliens . shall, at the option of the Attorney General, be to the country whence they came or to the foreign port at which such aliens embarked for the United States; . or, if such aliens are held by the coun- try from which they entered . not to be subjects or citizens of such country, and such country refuses to permit their reentry, . then to the country of which such aliens are subjects or citizens . ." 32 STAT. 1218, 1221 (1903), 34 STAT. 904, 905, 903 (1907), 8 U. S. C. § 156 (1941). The administrator's discretion to deport to the "country whence he came" or to the port of embarkation is subject to judicial control only if abused. McDonough v. Tilling- hast, 56 F. (2d) 156 (C. C. A. 1st, 1932) ; United States v. Testolini, 4 F. (2d) 76 (C. C. A. 5th, 1925). But the courts have insisted that the "country whence [he] came!' must refuse the deportee before he can be sent to the country uf his allegiance. Gorcevich v. Zurbrick, 48 F. (2d) 1054, 1055 (C. C. A. 6th, 1931); United States ex rel. Natali v. Day, 45 F. (2d) 112 (C. C. A. 2d, 1930). THE YALE LAW JOURNAL [Vol. 53 domiciled in what is now an enemy occupied country with an exiled govern- ment functioning in London and he is rejected by the country whence he embarked for the United States. Presented with this problem in the recent case of Delany v. Moraitis,5 the Court of Appeals for the Fourth Circuit ruled that a deserting Greek seaman could be deported to England, and thus placed under the jurisdiction of the Greek government-in-exile, on the theory that "country whence [he] came" means the government exercising sovereign power over the deportee. The court also thought that a refusal to satisfy the requests of the Greek govern- ment-in-exile for deportation to England would, in view of its recognition by the United States, amount to denial of that government's right to exercise jurisdiction over absent nationals.0 But the right of another government over an absent national would seem irrelevant, since deportation, unlike extradi- tion, is the exercise of an absolute power of a state.7 In the United States, where the exercise of the deportation power is controlled by statute, the alien has an absolute right to be deported only to one of the places authorized therein. The court's decision would, therefore, seem to rest on its interpretation of "country whence [an alien] came" as the government to which he owes alle- giance rather than the territory from which he came. In the single Supreme Court decision involving the phrase, Mensevich v. Tod,8 it was held that if the part of the territory of a state from which the alien came is acquired by another state, he is deportable to the acquiring state. The full significance of this holding would appear to depend largely on whether the deportee was at the time of deportation a citizen of the acquiring or of the ceding state. For if the deportee had become a citizen of the acquiring state, the case would support a personal sovereignty interpretation. It appears, however, that in this case the alien was deported to the acquiring state even though he had retained the nationality of the ceding state, because he was resident abroad during the cession and the nationality of a successor state is generally acquired only by habitual residents who continue to reside in the ceded territory. It 5. 136 F. (2d) 129 (C. C. A. 4th, 1943). 6. Id. at 131. 7. See (1942) 51 YALE L. J. 1358, 1363 note 25. 8. 264 U. S.134 (1924). 9. ". .. subjects of the ceding state who are born on the ceded territory but have their domicile abroad do not become ipso facto by the cession subjects of the acquiring state." 1 OPPENHEIM, INTERNATIONAL LAW (5th ed. 1937) 436, n. 3; see also I FAU- CHILLE, DROIT INTERNATIONAL PUBLIC (1922) 427; FoorE, PRlVATE INTERNATIONAL LAW (4th ed. 1925) 11; 2 HALLECK, INTERNATIONAL LAW (4th ed. 1908) 509-10; HARVAD LAw SCHOOL, RESEARCH IN INTERNATIONAL LAW (1929) art. 18; KEITH, Tus THEORY oF STATE SUCCESSION (1907) 92; Treaty of Riga (1921) art. 6; Treaty of Versailles (1919) arts. 84, 85, 105; Engel v. Zurbrick, 51 F. (2d) 632, 633 (C. C. A. 6th, 1931) (". since, on March 18, 1921, they were not residing in the formerly Russian terri- tory which became Poland, thus ipso facto then becoming Polish citizens, and since they 19431 NOTES may be, however, that the Court did not consider the question of the deportee's nationality, since its only proffered rationale was the vague statement that "'country' means the state which, at the time of deportation, includes the place from which the alien came." Apart from the Mensevich case, there are strong indications that "country whence [an alien] came" means country territorially rather than governmen- tally. The statute itself authorizes deportation to the place of the alien's citi- zenship only after he has been refused by the "country whence [he] came." 10 In the past, moreover, courts have generally held domicile rather than national- ity determinative of "country whence [an alien] came." 11 While it is true that in some instances the alien has actually been sent to the state of which he was a citizen, in those cases the state of nationality either coincided with the deportee's last domicile or he had been refused by the "country whence [he] came."L- Whenever nationality and domicile differed, however, the alien was held deportable to the latter. 3 Nor would the cases in which aliens were not in fact deported to countries with unrecognized governments seem to support the identification of "country whence they came" with state of citizenship. For in those cases, the alien was specifically held deportable to the territory of last domicile even though the government there had not been recognized by the United States did not file their option for Polish citizenship before September 24, 1924, they lost their right-until then continued-to acquire that status."). But see HL., ITNMU.ATIheAL LAw (8th ed. 1924) 688; Treaty of Trianon (1920) art. 61; Treaty of St. Germain (1919) art. 70. 10. See United States ex tel. Boraca v. Schlotfeldt, 109 F. (2d) 110 (C. C. A. 7th, 1940) ; Gorcevich v. Zurbrick, 48 F. (2d) 1054, 1055 (C. C. A. 6th, 1931) ; United States cx rel. Natali v. Day, 45 F. (2d) 112 (C. C. A. 2d, 1930); see note 4 sipra. 11. See cases cited notes 12 and 13 infra. 12. United States ex re. Boraca v. Schlotfeldt, 109 F. (2d) 105, 109 (C. C. A. 7th, 1940) ; United States ex tel. Di Paola v. Reiner, 102 F. (2d) 40 (C. C. A. 2d, 1939) ; Schenck ex reL. Capodilupo v. Ward, SO F. (2d) 422, 426 (C. C. A. 1st, 1935); Self V. Nagle, 14 F. (2d) 416, 417 (C. C. A. 9th, 1926); Lazzaro v. Weedin, 4 F. (2d) 704 (C. C. A. 9th, 1925) ; Singh v. United States, 243 Fed. 557 (C. C. A. 9th, 1917); cf. Frick v. Lewis, 195 Fed. 693, 700 (C. C. A. 6th, 1912) ; Thack v. Zurbriclr, 51 F. (2d) 634 (C. C. A. 6th, 1931). But see United States ex rel. Hudack Y. UI, 20 F. Supp. 928, 930 (N. D. N. Y. 1937), aff'd, 96 F. (2d) 1023 (C. C. A. 2d, 1938), Blumen v. Haft, 78 F. (2d) 833 (C. C. A. 9th, 1935), cert.
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