(dissenting).
I' have not been able to determine what particular section of the immigration statutes my brothers rely upon to justify deportation of the appellant as a violator of those statutes. The presiding inspector found that he was subject to .deportation under the Act, 8 U.S.C.A. §§ 213, 214, for lack of a valid immigration visa at the time of entry. The entry referred to, I take it, was July 2, 1944, when he was brought here against his will on board an Army Transport as an alien enemy. Under our recent rulings he did not then make an “entry,” nor was he an “immigrant.” Consequently section 213 did not require him then to possess an unexpired immigration visa. Nor can I gather from my brothers’' opinion whether they hold that he later made an “entry” which required him at that time to be in possession of an unexpired immigration visa. Apparently they rely upon the provision in 8 U.S.C.A. § 214 which states that
“Any alien who at any time after entering the United States is found * * * to have remained therein for a longer time than permitted under this chapter or regdlations made thereunder, shall be . taken into custody and deported in the same manner as provided for in sections 155 and 156 of this title.”
The difficulty in applying this provision to the appellant is that the opinion does not specify what statutory provision or regulation defines the time he is permitted to re*861main after “entry”; nor does the opinion indicate the date when his “entry” was made.
The opinion makes reference also to 8 U.S.C.A. § 155 which permits the deportation of^'any alien ■ * * * who shall be found in the United States in violation of this chapter, or in violation of any other law of the United States”. But again the opinion does not specify the particular provision of “this chapter” or of “any other law” which has been violated by the presence of the appellant in the United States.
An indication that the Government itself recognizes that aliens brought to the United States as was the appellant should be dealt with as alien enemies rather than immigrants is to be found in Presidential Proclamation No. 2685, of April 10, 1946, 60 Stat. Part 2, 1342, 50 U.S.C.A. § 21 note. This provides
“1. All alien enemies within the continental limits of the United States brought here from other American republics after December 7, 1941, who are within the territory of the United States without admission under the immigration laws, shall, if their continued residence in the Western Hemisphere is deemed by the Secretary of State to be prejudicial to the future security or welfare of the Americas, be subject upon the order of the Secretary of State to removal from the United States and may be required to depart therefrom hr accordance with such regulations as the Secretary of State may prescribe.
“2. In all cases in which the Secretary of State shall have ordered the removal of an alien enemy under the authority of this proclamation or in which the Attorney General shall have ordered the removal of an alien enemy under the authority of Proclamation No. 2655 of July 14, 1945, thirty days shall be considered, and is hereby declared to be, a reasonable time for such alien enemy to effect the recovery, disposal, and removal of his goods and effects, and for his departure.”
In United States ex rel. Ludwig v. Watkins, 164 F.2d 456, 457 we held that since the relator there involved was brought in as an alien enemy, the United States should treat him as such for purposes of removal. I do not doubt that under 50 U. S.C.A. § 21 and Presidential Proclamation No. 2655, 59 Stat. Part 2, 870, the Attorney General may cause the appellant to be removed if he “shall be deemed by the Attorney General to be dangerous to the public peace and safety of the United States,” or that the Secretary of State may cause his removal pursuant to Presidential Proclamation No. 2685. So far as the present record shows the Attorney General released the appellant from custody on March 21, 1946 and no order either by the Attorney General or the Secretary of State directing his removal as an undesirable alien enemy is outstanding.
No doubt it makes little practical difference to an alien whether he be deported as a violator of the immigration statutes oías an undesirable alien enemy, but it is important that the decisions of this court maintain a logically consistent construction of the immigration statutes. I have not been able to find any provision of those statutes which authorizes the deportation of an alien .situated as is the appellant. Therefore I think the appellee’s custody of the appellant is illegal and that the writ should have been sustained. This, of course, would not preclude removal of the appellant as an alien enemy if the Attorney General or the Secretary of State should hereafter make the necessary finding and order.