Prince v. COMMISSIONER OF IMMIGRATION AND NAT.

• Decision Date: 17 November 1950
• Docket Number: No. 11114.,11114.
• Parties: PRINCE v. COMMISSIONER OF IMMIGRATION AND NATURALIZATION et al.
• Court: U.S. Court of Appeals — Sixth Circuit

185 F.2d 578 (1950)

PRINCE v. COMMISSIONER OF IMMIGRATION AND NATURALIZATION et al.

No. 11114.

United States Court of Appeals Sixth Circuit.

November 17, 1950.

Henry C. Lavine, Cleveland, Ohio (Henry C. Lavine, Cleveland, Ohio, on the brief), for appellant.

Wm. C. Graves, Cleveland, Ohio (Don C. Miller, Cleveland, Ohio, on the brief), for appellees.

Before SIMONS, McALLISTER and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

Appellant, an alien, born in Italy, was, at the age of two, brought to the United States by his grandmother forty-eight years ago, and has continuously resided in this country since that time. He is married to a native American citizen and has a daughter sixteen years old. Twenty-nine years ago, he was convicted of a bank robbery and sentenced to a term of twenty years in prison, of which he served eight years, and was thereafter paroled, more than twenty years ago. He has been discharged from parole many years.

In 1941, deportation proceedings were brought against him in Cleveland, Ohio, under Title 8 U.S.C.A. § 155, in which he was charged with having, in 1934, left the United States at Niagara Falls and entered Canada with his wife at a place called Crystal Beach, a nearby resort, where, it was charged, he had remained approximately an hour and a half, and then recrossed to the United States. It was claimed that appellant's re-entry into the United States was illegal because he had not been in possession of an immigration visa and, not being exempt from the quota, had committed an offense involving moral turpitude, namely, the robbery of 1921, prior to his entry — that is, his re-entry — from Canada. It appears that the government learned of such claimed re-entry from Canada through the admission of appellant himself, who stated, during the course of his examination in 1942, that, as mentioned above, he had visited Crystal Beach in Canada with his wife for an hour or so in 1934. In subsequent proceedings, however, appellant stated to the immigration officials that he had been mistaken about leaving Niagara Falls and entering Canada, and that, instead, he had passed over a bridge from Niagara Falls to Goat Island, a part of the United States, and had returned from that place after a visit of an hour or so in company with his wife; that he had told his wife of his testimony about going to Canada, whereupon she informed him that he had never been at Crystal Beach but had been at Goat Island instead. Appellant's wife later testified in the deportation proceedings to the same effect.

The Commissioner of Immigration, however, recommended deportation on the ground that appellant had admitted that he had been in Canada, and that his re-entry, after having been previously convicted of a crime involving moral turpitude, called for his deportation. Upon the approval of the Commissioner's recommendation of deportation by the Board of Immigration Appeals, a warrant and order of deportation was finally issued by the Attorney General on October 7, 1947, in accordance with the provisions of the Immigration Act of 1917. Title 8 U.S.C.A. § 155.¹ Thereupon, appellant filed a petition in the district court to review the action of the Commissioner and the Attorney General under the provisions of the Administrative Procedure Act, Title 5 U.S.C.A. § 1001, et seq.²

On the hearing of the petition, the district court held that under the Immigration Act, the decision of the Attorney General was final; that the Administrative Procedure Act was not applicable in that it did not authorize judicial review of such proceedings; and that such a review could only be had by a petition for a writ of habeas corpus. The court, accordingly, dismissed appellant's petition. 87 F.Supp. 53.

We are of the opinion that a person against whom a deportation order has been issued is entitled to judicial review after the issuance of such an order. In Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 454, a petitioner sought release from custody by habeas corpus proceedings upon the ground that the administrative hearing was not conducted in conformity with Sections 5 and 11 of the Administrative Procedure Act. The Supreme Court stated that the single ultimate question was whether administrative procedure in deportation cases must conform to the requirement of the Administrative Procedure Act, and held that "the Administrative Procedure Act, § 5, does cover deportation proceedings conducted by the Immigration Service." While the only question the court decided was that the hearings in the Wong case should have been held before an examiner, pursuant to provisions of the Administrative Procedure Act, rather than before an immigration inspector, appellant argues that the holding tends to sustain the decisions of other circuits on the point here involved. In United States ex rel. Trinler v. Carusi, 3 Cir., 166 F.2d 457, 462, it was held that the Administrative Procedure Act "did enlarge the rights of people against whom deportation orders have been issued and that they are now entitled to judicial review after the issuing of a deportation order. That being so, a document headed `Petition for Review' is an appropriate enough form in which to ask for the relief."

In Kristensen v. McGrath, 86 U.S.App. D.C. 48, 179 F.2d 796, 800 (certiorari granted, May 15, 1950), the court stated that, with reference to the question here involved, its conclusions were the same as those reached in the Trinler case, and held that "the Administrative Procedure Act's judicial review section was not intended to perpetuate preexisting rigidities in the use of extraordinary legal remedies but rather to simplify and make more flexible the avenues to judicial relief." See also Yanish et al. v. Barber, 9 Cir., 181 F.2d 492.

In the instant case, the district court held that judicial review, under the Administrative Procedure Act, was precluded by that portion of the statute which specifically excepted from such review those cases where "agency action is by law committed to agency discretion." Title 5 U.S.C.A. § 1009.

In Kristensen v. McGrath, supra, it was observed that this statutory exception from judicial review was not satisfied in the case then under consideration; that the immigration statute did not, on its face, preclude judicial review, but merely stated that the decision of the Attorney General should be final; that such a statutory declaration of finality, which did not preclude review by way of habeas corpus, did not qualify as a bar to review under the statute. The court went on to say that from the history of the statute, it appeared that the legislative discussion of the exception, agency action "committed to agency discretion," revealed no intention to bar judicial review, inasmuch as it was made clear to Congress that questions of law were not withdrawn from review; and since there was no doubt that, if appellant had been in custody, habeas corpus would lie to examine into the fairness of the proceedings and their conformity with the governing statutes, it resulted that there was no completely unreviewable discretion vested in the Attorney General, within the meaning of the exception. We concur in this view.

Moreover, the statute provides for judicial review of "every final agency action for which there is no other adequate remedy in any court". Title 5 U.S.C.A. § 1009(c). As said in the Kristensen case, it appears that Congress did not intend to perpetuate extraordinary legal remedies, requiring persons to submit to arrest in order to file a petition for a writ of habeas corpus in deportation proceedings — certainly an inadequate remedy — but, rather, to give them the adequate remedy of judicial review of such agency action. It follows that under the provisions of the Administrative Procedure Act, appellant was entitled to a judicial review by the district court of the order of deportation.

In his petition in the district court, appellant, a resident of Cleveland, where the deportation proceedings took place, named as defendant, Floyd E. Ault, Officer in charge of the Cleveland office of the Immigration and Naturalization Service, and asked for an injunction restraining defendant from deporting him. Defendant, in his answer, set forth that the action was brought to review an order of the Commissioner of Immigration and Naturalization, and that the official residence of such official was Washington, D. C.; that the Attorney General was an indispensable party to the adjudication of the controversy,...