United States ex rel. O'Connor v. Day , 42 F.2d 715 ( 1928 )

THACHER, District Judge.

Habeas corpus proceedings upon tbe relation of Joseph O’Connor, held in custody by tbe respondent under a warrant of deportation signed by tbe Assistant to tbe Secretary of Labor directing tbe deportation of the relator upon tbe ground that be has been sentenced subsequent to May 1, 1917, to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, to wit, petty larceny, committed within five years after his entry.

It appears without contradiction that tbe relator was arrested on September 7, 1927, charged with thé crime of petty larceby, pleaded guilty, and on September 23, 1927, was sentenced to tbe New York City Reformatory for Misdemeanants, pursuant to section 93 of tbe Inferior Criminal Courts Act (Laws N. Y. 1910, c. 659). In accordance with tbe provisions of this statute, bis sentence was indeterminate; tbe maximum term authorized being three years. U. S. ex rel. Sirtie v. Com’r of Immigration (D. C.) 6 F.(2d) 233. Tbe immigrant inspector found that tbe relator Would become eligible for parole on or about April 23, 1928, and is to continue on parole for two and one-half years thereafter. There is evidence of tbe relator in tbe. record to support the correctness of this finding. The warrant for tbe relator’s deportation issued under authority "of tbe Secretary of Labor expressly provides : “Execution of this warrant should be deferred until such time as deportation may be effected in accordance with General Order No. 96.” General Order No. 96 in effect prohibits deportation until after termination and release from parole, and tbe execution of this warrant was plainly in violation of its own terms and of tbe General Order. In behalf of tbe respondent it is argued that tbe General Order is invalid. However, since be is acting only under tbe warrant of deportation, and that warrant is expressly made subject to tbe General Order, tbe respondent is not in a position to urge the invalidity of tbe General Order. He is bound by tbe warrant and all of its terms. It follows that tbe writ must be sustained, and the relator discharged, without prejudice to any future proceedings which may ,be taken by the officers of tbe government for tbe deportation of tbe relator.