Lennon v. United States, 73 Civ. 4543.

• Decision Date: 02 January 1975
• Docket Number: No. 73 Civ. 4543.,73 Civ. 4543.
• Citation: 387 F. Supp. 561
• Parties: John Winston Ono LENNON, Plaintiff, v. The UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

387 F. Supp. 561

John Winston Ono LENNON, Plaintiff, v. The UNITED STATES of America, et al., Defendants.

No. 73 Civ. 4543.

United States District Court, S. D. New York.

January 2, 1975.

Leon Wildes, New York City, for plaintiff.

Paul J. Curran, U. S. Atty., So. District of New York, Joseph Marro, Asst. U. S. Atty., of counsel, for defendants.

OPINION AND ORDER

OWEN, District Judge.

Defendants in this action move for an order dismissing the complaint of plaintiff John Lennon for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P., Rule 12(b)(6) or alternatively for an order granting them judgment on the pleadings pursuant to Fed.R.Civ.P., Rule 12(c).¹ The facts pertaining to this action are contained in my earlier opinion, Lennon v. Richardson, 378 F.Supp. 39 (S.D.N.Y. 1974) and need not be repeated here. Since that decision was rendered, the Board of Immigration Appeals ("the Board") dismissed plaintiff's appeal from the order of deportation of Immigration Judge Fieldsteel. In doing so, the Board held (1) that plaintiff was not entitled to a stay of immigration proceedings pending the outcome of the action before me, (2) that the decision to issue an order to show cause in an immigration proceeding is solely within the Immigration and Naturalization Service ("INS") District Director's prosecutorial discretion and as such was unreviewable by it, (3) that the Immigration Judge has the power to enforce the provisions of 18 U.S.C. § 3504 in proceedings before him but plaintiff was not entitled to any of the relief he sought thereunder, (4) that no prejudgment claim existed as to the actions of the Immigration Judge since the only denial by the Judge related to statutory ineligibility and other matters of law and not to any discretionary matter, (5) that the Immigration Judge was without jurisdiction to investigate any alleged prejudgment by the District Director or other INS officials or to terminate deportation proceedings as improvidently begun and (6) that plaintiff was shown deportable by clear, convincing and unequivocal evidence under § 241(a) (2) of the Immigration & Nationality Act, 8 U.S.C. § 1251(a) (2) and was statutorily ineligible for adjustment to permanent resident status under § 245 of the Act, 8 U.S.C. § 1255 because of a conviction for possession of "cannabis resin" in Great Britain which made him excludable from the United States under § 212(a) (23) of the Act, 8 U.S.C. § 1182(a) (23).

Plaintiff has appealed the Board's decision to the Court of Appeals, which has yet to hear argument.²

The application to dismiss the first cause of action is granted. That cause of action, pursuant to 18 U.S.C. § 3504³ demands that the government affirm or deny the occurrence of certain unlawful acts as specified in the statute including alleged illegal electronic and mechanical surveillance on plaintiff. In response to plaintiff's demands the Department of Justice has stated in letter form that it has no information indicating that any conversations of plaintiff were overheard or that any premises known to have been owned or leased by plaintiff were covered by electronic surveillance. The letter also denied that Lennon was subjected to electronic surveillance by six other governmental agencies specified in the letter.

Passing the issue of whether this unsworn letter form denial is sufficient to moot plaintiff's claim under 18 U.S.C. § 3504, I find that other reasons compel dismissal of this cause of action. The terms of § 3504 make clear that it only comes into play upon a claim that certain evidence is inadmissible in a proceeding because it is the primary product of an unlawful act or is obtained by the exploitation of such an act. I agree with the Board's conclusion that:

Counsel has not claimed that any evidence relating to deportability or ineligibility for adjustment of status may have been illegally obtained. In fact, since the evidence in the case consisted solely of the respondent's admitted presence in the United States after February 29, 1972, and the record of his conviction which he readily admitted, we have great difficulty in ascertaining what evidence the respondent may hope to have suppressed.

In re Lennon, A 17 595 321 (BIA, July 10, 1974) at p. 7. In any event, and more fundamentally, plaintiff's claim has already been presented both to the Immigration Judge and the Board which have the power and means to fully protect plaintiff's rights under 18 U.S.C. § 3504. In re Lennon, supra, at 5-6 and cases cited therein. Any error in the Board's ruling as to this contention is reviewable in the Court of Appeals and not in collateral proceedings in the District Court. § 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). The first cause of action is therefore dismissed.

The second cause of action alleges, in essence, that the District Director, other officials of the INS and the Immigration Judge "prejudged" all of plaintiff's applications for discretionary relief by routinely denying or not acting upon any such requests, rather than by exercising such discretionary power as is vested in them according to their own understanding and conscience. Principal among the several alleged failures to exercise independent judgment was the institution by the District Director of deportation proceedings against Lennon despite the fact that, absent prejudgment, Lennon would allegedly not have been prosecuted because he would ordinarily have been accorded "non-priority" status.⁴ While plaintiff does not so denominate it, this is essentially an allegation of "selective prosecution" to get the plaintiff out of the country, the reason for which, plaintiff claims, was to penalize him for his association with individuals judged to be highly political and unfavorable to the then-existing administration, as well as to prevent his participation in demonstrations possibly embarrassing to that administration.

The third cause of action alleges that the conduct alleged in the second cause of action occurred at the behest of high government officials, and was the result of and part of a conspiracy by various government officials to violate plaintiff's rights guaranteed by the First, Fourth, Fifth and Ninth Amendments to the Constitution. Part of the conduct of the alleged conspiracy was to unlawfully wiretap the phones of plaintiff and his attorney and interfere with plaintiff's mail.

The above allegations clearly state valid causes of action. U. S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Bufalino v. Kennedy, 116 U.S.App.D.C. 266, 322 F.2d 1016 (1963).⁵ Defendants argue that the decision to institute immigration proceedings on the basis of a non-priority classification or for any other reason is a matter that rests entirely in the discretion of the District Director and is unreviewable in any Court or administrative proceeding, citing Spata v....