Chang Ah Ding and Chang Shing Hwa v. United States

239 F.2d 852, 1957 U.S. App. LEXIS 3038

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 9, 1957
• Docket: 16272_1
• Status: Published

Opinions

PER CURIAM.

This is an appeal from an order denying an application for Habeas Corpus. The matter comes up in this way. Seeking relief, not upon the ground that they were not deportable aliens and therefore their custody and detention for deportation to Formosa was basically illegal, but upon the sole ground that the Immigration and Naturalization Service cannot effect their deportation to that country for the reason that “entry permit, passport and travel documents have not been obtained”, appellants, relators below, filed applications for Habeas Corpus. A show cause order was issued, directing respondents named to “produce before the court [the persons of the rela-tors] on the 24th day of May, A.D., 1956, then and there to show cause why they should not be restrained and enjoined from restraining relator of his liberty and deporting relator from the United States to Formosa, without having previously secured proper permission and necessary travel documents from the government of the Island of Formosa.” (Emphasis supplied.)

The respondent alleging, that relators were being legally detained under the authority of duly issued warrants of deportation attached to their response and, that, under their authority, they are to be deported to Formosa, and denying their claim that the deportation cannot be effected for want of consent from the government of Taiwan, or Formosa, to receive the relators, the matter was set for hearing on the sole claim made, the lack of permission from Formosa.

After a hearing, in which relators made no proof in support of their asserted claim, the district judge, declaring:

“It is clear that they are subject to be deported, and I think it is clear they should be deported to China. I think it is entirely fitting and proper — this is not a judicial remark but a remark made out of my own judgment — I think it is entirely proper that they be returned on the lines of the China Union Lines, a ship flying the Chinese National flag and the line each of them was working for at the time each deserted his ship, and I am going to rule and rule now, the petitions for habeas corpus are denied and they are ordered dismissed.”

entered his order discharging the writs and denying the relators’ petitions, and they have appealed under the protection, pending the appeal and its determination, of an order¹ staying their deportation.

Here urging one proposition and insisting that because of the absence of the administrative file and the refusal of the court to delay the hearing until the file could be received, appellants, citing cases,² urge upon us that the judgment must be reversed and the cause remanded.

The United States, moving to dismiss the appeal as moot, makes formal showing by affidavit and the tender of the documents for inspection that since the filing of' the appeal, in addition to the consent to receive appellants, on which the deportation action was taken, the Chinese Nationalist Government of Formosa, or Taiwan, has now caused to be issued and placed in the custody of the officer in charge, Immigration and Naturalization Service at Houston, where they are available for inspection, travel documents or passports for each of the appellants to travel to and land in Formosa. Subject to its motion, it insists, for the reasons carefully set out and upon the authorities cited by it, that the judgment was right and should be affirmed.

The appellant in no manner controverting the showing made, we agree with the United States that the case is moot. Because we do, we should not, indeed we cannot, proceed to a determination of the appeal on its merits but must remand the cause with directions to the district court to vacate its judgment and dismiss the proceeding from the docket on the ground that the cause is moot. Lake Charles Metal Trades Council v. Newport Industries, 5 Cir., 181 F.2d 820 and cases cited; Alton v. Alton, 347 U.S. 610, 74 S.Ct. 736, 98 L.Ed. 987.

Remanded with directions to dismiss as moot.

1 . “An appeal having been filed in the above entitled matter, it is hereby ordered that the respondents herein retain the relators within the jurisdiction of this court and that they be not deported, or removed, from the jurisdiction of this court, during the pendency and until the final determination of said appeal.”

2 . United States ex rel. Tom. Man v. Shaughnessy, D.C., 142 F.Supp. 444; United States ex rel. Fong Foo v. Shaughnessy, 2 Cir., 234 F.2d 715; United States ex rel. Leong Choy Moon v. Shaughnessy, 2 Cir., 218 F.2d 316, 318; United States ex rel. Lee Ming Hon v. Shaughnessy, D.C., 142 F.Supp. 468.