Ex Parte Panagopoulos
Ex Parte PANAGOPOULOS
- Proceeding
- district
- Area
- other
- Panel
- Cosgrave (author)
Analysis
The court reviewed a petition for a writ of habeas corpus filed by an alien detained for deportation to Greece, who argued that deportation constituted cruel and unusual punishment and that he was entitled to voluntary departure at government expense. The court discharged the writ and remanded the petitioner to the custody of the immigration authorities, holding that deportation is not punishment and that the choice of destination and the grant of voluntary departure are within the sole discretion of the Secretary of Labor.
| What the court decided | The model |
|---|---|
Writ of habeas corpus discharged and petitioner remanded to custody of immigration authorities.“Writ is discharged, and the petitioner remanded to the custody of the immigration authorities.” | agree with court The court correctly applied the prevailing legal doctrine of the era that deportation is a civil, not criminal, proceeding and thus does not constitute 'punishment' under the Eighth Amendment. Furthermore, the court correctly identified that the decision to allow voluntary departure and the choice of destination are discretionary executive functions not subject to judicial review absent a clear showing of abuse, which the petitioner did not demonstrate. The petitioner's failure to utilize the voluntary departure window before being arrested for unrelated state crimes further supported the denial of relief. |
The order itself: sound — The order is legally sound based on the law as it stood in 1933. The court correctly cited the Supreme Court's consistent holding that deportation is not punishment. It also correctly applied the principle of judicial deference to executive discretion in immigration matters, noting that courts cannot control the discretion of an executive officer except upon a clear showing of abuse. The reasoning directly addresses the petitioner's specific arguments regarding the Eighth Amendment and the right to voluntary departure.
Opinion — Cosgrave
COSGRAVE, District Judge.
Warrant of deportation of the petitioner to Greece was issued by the Department of Labor, and petitioner was notified through his counsel on October 31,1932, at which time he was given the privilege of voluntary departure. He elected to depart voluntarily at his own expense. Unable to raise sufficient money for the purpose, he applied for an extension of time to December 31, which was accorded him. On December 15 he was arrested by the state authorities on a charge of criminal syndicalism and put in jail. Nothing further appears until January 18. He then demanded the privilege of voluntary departure, but at the expense of the government. The time within which he might have departed voluntarily having expired, he was taken into custody by the immigration authorities and so held when the writ was issued.
Claim is made that, because punishment awaits him on his arrival in Greece, his deportation thither is cruel and unusual punishment prohibited by the United States Constitution.
That deportation is not punishment has been decided by the United States Supreme Court repeatedly. It is merely the exereise of the right existing in all sovereignties to say whom of aliens they will allow within their borders.
Voluntary deportation where deportation is ordered is in no sense a right possessed by the alien. It cannot even he said to be a practice of the Department of Immigration. In a sense it is recognized by the Act of March 4th, 1929 (8 USC § 180, subdivision b, 8 USCA § 180 (b), which provides, among other things, for punishment of deported aliens who attempt unlawful re-entry. The act provides that for the purposes of that act an alien who has been ordered deported and has left the United States shall be considered to have been deported in pursuance of law. Such a provision in no sense compels the Secretary of Labor to accord the right of voluntary departure, or even implies such a right where a warrant has been issued. If a practice allowing voluntary deportation has grown up in the immigration sendee, it is of necessity something resting only in the discretion of the Secretary of Labor.
This privilege was possessed by the petitioner unrestricted for six weeks, but he did not avail himself of the opportunity. Instead he became involved with the police, allowing the time to expire within which he might have departed voluntarily.
Petitioner does not question the right of the immigration authorities to deport him. He claims the right of choice of destination because what he thinks will be cruel and unusual punishment awaits him there.
.[4] While this is a consideration-that might very well appeal to the Secretary of Labor, it rests in his discretion alone, for there exists no power in the courts to control the discretion of an executive officer, except on a clear showing of its abuse.
Writ is discharged, and the petitioner remanded to the custody of the immigration authorities.
Cited by
- Soewapadji v. Wixon 11375 · 1946-09-13