may be had by an action for an injunction or for a declaratory judgment. It is argued that such an action lies only if it is brought while the alien is in this country; whereas, in this instance, it was instituted after the deportation had taken place and the alien was in Guatemala. The Court considers this distinction untenable. If the deportation were in fact and in law invalid, then the plaintiff would have the right to re-enter this country. Consequently, there is a justiciable controversy; there is a legal issue to be determined. Moreover, it would not do to say that the government may deprive a person of a judicial remedy by taking prompt action and presenting the courts with a fait accompli. I do not think that the courts are as powerless as that.
The scope of review of a deportation order, however, is exceedingly narrow. Moreover, in this instance, it is not the original order of deportation that is presented for review. That order has already been reviewed and its validity sustained by the Supreme Court. What is presented for consideration is the question whether deportation to Guatemala was legal and valid under the deportation order.
The Government of this country, through its proper representatives, requested permission from the Government of Guatemala for Marcello to be received by that country. Such permission was granted, as evidenced by a Guatemalan document issued by its appropriate officials. On the basis of that document representatives of this Government brought the plaintiff to Guatemala, were permitted by the officials of the Guatemalan Government to land him there and leave him in that country. It is urged in behalf of the plaintiff, however, that subsequently to his arrival in that country the Guatemalan Government cancelled its prior permission and seeks to expel the plaintiff from its territory.
Counsel for the Government, present a formal communication, dated May 5, 1961, directed to the United States Attorney by Katherine W. Bracken, Director of the Office of Central American and Panamanian Affairs of the Department of State, in which it is certified that the Department of State has received no representations from the Government of Guatemala, either oral or in writing, which in any manner qualifies or changes its orginal acceptance of Carlos Marcello, also known as Calogero Minacore, also known as Calogers, into its territory as a deportee from the United States. A communication from the State Department such as this imports verity. The Court may not intrude into any negotiations between the Government of the United States and the government of a foreign country. The conduct of foreign relations is left solely to the President and his subordinates.
It is contended that the birth certificate showing that the plaintiff was born in Guatemala is a forgery and it is urged that this assertion raises an issue of fact to be tried. The Court is of the opinion, however, that the issue of fact, if there is one, is not material. The Government of Guatemala has accepted the plaintiff, and once the acceptance was acted on and the plaintiff was brought by our Government to Guatemala and landed there, the transaction is at an end.
When this action was first brought there was an application for the convening of a three-judge court on the ground that a Constitutional question was raised, namely, that Paragraph (a)(7) of 8 U.S.C.A. § 1253, to which reference has been made, constituted cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution. With some hesitancy, this Court granted the application for the convening of a three-judge court, being motivated particularly by the fact that the Court of Appeals for the Ninth Circuit recently held that such a question was a substantial question necessitating the convening of a three-judge court.
The three-judge court was convened, upheld the constitutionality of the statute, denied a motion for preliminary injunction, dissolved the three-judge court, and remitted the remainder of the issues to me as a single judge for disposition.
There is no doubt that deportation, harsh as it may be at times, is not punishment in the legal sense and, therefore, does not come within the purview of the Eighth Amendment.
In the light of the foregoing discussion, the Court is of the opinion that there are no issues of fact here that are material and further concludes that the deportation has been in accordance with statute and is not tainted with any illegality.
Accordingly, the plaintiff's motion for a summary judgment will be denied and the defendants' motion for summary judgment granted.
Counsel will submit an appropriate order.
On Motion to Vacate Summary Judgment
This is a motion under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to vacate the summary judgment heretofore entered in favor of the defendants. All of the points raised in this motion have been fully argued and disposed of by the Court in connection with the original motion. Nothing new is advanced at this stage except a contention that Guatemala has recently expelled or deported the plaintiff. Apparently counsel for the plaintiff would contend that since Guatemala has deported or expelled the plaintiff it cannot be said to have originally accepted him as a deportee.
The Court does not agree. Once a foreign country informs this Government that it would accept a deportee from this country and he is actually permitted to land in that country pursuant to such acceptance, the matter is at an end so far as this country is concerned, as this Court indicated in its prior opinion. What the other country does thereafter does not affect the validity of the legality of the deportation. As was said by Judge Weinfeld in United States ex rel. Tie Sing Eng v. Murff, D.C., 165 F.Supp. 633, 634:
'The language of the statute is clear. It provides simply for deportation to a country 'willing to accept' the alien. It does not impose upon our Government, as a condition of deportation, an obligation to assure that once accepted the deportee will be granted permanent residence or asylum within the accepting country. Undoubtedly Congress could have required the Attorney General to secure assurances from an accepting country with respect to the continued residence of a deportee; but it has not done so.'
This decision was affirmed by the Court of Appeals for the Second Circuit on the opinion of the District Court, United States ex rel. Tie Sing Eng v. Esperdy, 2 Cir., 266 F.2d 957.
A similar result was reached in the Northern District of Ohio in Glikas v. Tomlinson, D.C., 49 F.Supp. 104. In that case the Court held that the United States is not required to guarantee to every alien illegally in this country and subject to deportation an unconditional and permanent asylum in the country to which he was being sent.
The Court perceives no basis for changing the decision that it has heretofore rendered, and the motion is denied.