Patsis v. Immigration & Naturalization Service

Decision Date29 October 1964
Docket NumberNo. 17316.,17316.
PartiesAthanasios PATSIS, a/k/a Thomas Nickas, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Albert J. Yonke, Kansas City, Mo., made argument for petitioner and filed brief.

Don Bennett, Atty., Immigration & Naturalization Dept., Washington, D. C., made argument for respondent and filed brief with Kenneth C. Shelver, Atty., Dept. of Justice, Washington, D. C. and Richard D. FitzGibbon, U. S. Atty., and Grove G. Sweet, Asst. U. S. Atty., St. Louis, Mo.

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

Athanasios Patsis petitions for review of a final order of the Board of Immigration Appeals dismissing his appeal from an order of the Special Inquiry Officer. The exclusive jurisdiction of a court of appeals to review this administrative determination is now established by Foti v. Immigration & Naturalization Service, 375 U.S. 217, 229-232, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), and by § 106(a) of the Immigration & Nationality Act,1 8 U.S.C. § 1105a, as added September 26, 1961, effective October 26, 1961, Pub.L. 87-301, § 5(a), 75 Stat. 651. Inasmuch as the proceedings before the Special Inquiry Officer were conducted in Kansas City, Missouri, and Patsis' present residence is in that city, venue is in this court. Section 106(a) (2).

Patsis, a paint shop employee, was born in February 1904. He is a native and citizen of Greece. He has had a wife in that country since 1926 and has two children there. The children are now adults. The chronology is not in dispute:

1. Patsis first arrived in the United States on January 24, 1936, as a member of the crew of the steamship "Mount Para" inbound from Buenos Aires. He was temporarily admitted as a crewman pursuant to § 3(5) of the Immigration Act of 1924, 43 Stat. 154.

2. He promptly deserted his ship and remained in this country. He assumed the name of Thomas Nickas. He was taken into custody on a deportation warrant in January 1943. After a hearing he was ordered deported and, in fact, was deported from San Francisco aboard the steamship "Hellenic Beach" on April 6, 1947.

3. He returned to the United States as a member of the crew of the same ship on October 21, 1948, and was again admitted temporarily under the 1924 Act as a seaman. He deserted his ship once more and remained here. He possessed no immigration visa or other document authorizing his admission for permanent residence.

4. In April 1962 he was served with an order to show cause why he should not be deported, pursuant to § 241(a) (1) of the Immigration & Nationality Act, 8 U.S.C. § 1251(a) (1), in that "at the time of entry", October 21, 1948, he "was within one or more of the classes of aliens excludable by the law existing at the time of such entry", that is, he was excludable at the time of that entry under § 1(a) of the Act of March 4, 1929, as amended, 45 Stat. 1551 and 47 Stat. 166. This latter Act provided that "if any alien has been arrested and deported in pursuance of law, he shall be excluded from admission to the United States" unless "prior to his reembarkation at a place outside the United States * * * the Attorney General, in his discretion, shall have granted such alien permission to reapply for admission".

His deportation hearing was held in March and April 1962. It was there conceded that Patsis had not, before the 1948 reentry, received permission to apply or reapply for subsequent admission to the United States. Counsel, however, would not admit that Patsis was subject to deportation because "this admission would be a conclusion of law".

At the hearing Patsis applied (a) for suspension of deportation, under § 244(a) of the Act in its 1952 form, 8 U.S.C. § 1254(a), that is, as the statute read prior to the amendment effected October 24, 1962, by Pub.L. 87-885, § 4, 76 Stat. 1247; (b) for a waiver, under § 211(b), 8 U.S.C. § 1181(b), of documents otherwise required, on the ground that "I did not intend to remain in U.S. when I entered"; (c) for permission, under § 212 (a) (17), 8 U.S.C. § 1182(a) (17), to reapply for admission, nunc pro tunc as of the date of his last entry, on the ground that "It would be an extreme hardship to have to return to Greece. I have lived and worked in U.S. for 25 yrs. and own property here. I could not live nor find work in Greece"; and (d), in the alternative, for voluntary departure at his own expense in lieu of deportation, under § 244(e), 8 U.S.C. § 1254(e).

The Special Inquiry Officer, by his decision dated November 30, 1962, found Patsis was deportable, granted his request for voluntary departure in lieu of deportation, ordered deportation in the event he failed to depart voluntarily, and denied all other requested relief. In so doing the Officer concluded that:

1. Patsis was deportable because, under the 1929 Act, as amended, he had been deported before and had reentered without permission to reapply for admission.

2. Patsis' application for waiver of entry documents under § 211(b) could not be granted because: his only entries into this country were as a crewman; he had never acquired the status of a lawful permanent resident of the United States; the provisions of § 211(b) are discretionary and have application only to "otherwise admissible aliens lawfully admitted for permanent residence who depart from the United States temporarily" and were therefore not available to him; there is no other statutory authority for the admission of an alien for permanent residence unless he has an immigration visa; and the discretionary adjustment of status provisions of § 245(a), 8 U.S.C. § 1255(a), by their very terms, have not been applicable to "an alien crewman" since the section's amendment in 1960 by Pub.L. 86-648, 74 Stat. 505.

3. Patsis' application for nunc pro tunc permission to reapply under § 212 (a) (17) could not be granted because the only basis for such permission "is to remove a ground of inadmissibility except for which an alien would not be deportable", and such was not the situation here.

4. Patsis' application for suspension of deportation under § 244 could not be granted inasmuch as:

a. This statute, by its paragraph (f), added in October 1962, flatly provides "No provision of this section shall be applicable to an alien who (1) entered the United States as a crewman; * * *".
b. The fact Patsis\' application for suspension was filed on April 25, 1962, before the October enactment of § 244 (f), and at a time when the statute did not specifically exclude a crewman from its discretionary suspension benefits is of no significance where the Officer\'s decision is made subsequent to the adoption of the statute.
c. Anyway, Patsis did not qualify for suspension under § 244 as it read prior to the 1962 amendment and the addition of paragraph (f). This is so because (i) his application was not filed within five years after the effective date of the Act (December 23, 1952) as required by § 244(a) (1); (ii) inasmuch as he last entered the United States in 1948, he is not within the period ("Within two years prior to, or at any time after the date of the enactment of this Act" June 27, 1952), required for relief under § 244(a) (2), (3), (4), and the second alternative of (5); and (iii) the claim that Patsis was deportable under one of the specified paragraphs, namely, § 241(a) (5), with its reference to § 265, 8 U.S.C. § 1305 (willful failure to file an address report card), is not helpful to him under the first alternative of § 244(a) (5) because it was not the charge lodged against him and because, in any event, never having filed an address report card at all, he has not fulfilled the 10 year requirement of § 244(a) (5).

In granting voluntary departure the Officer concluded that, although Patsis admitted a common law relationship with a woman in the United States until about 1951 and her attainment of an Iowa divorce from him in 1950 with a property settlement, while at the same time he had a wife and children in Greece, he had established "good moral character for at least five years immediately preceding his application", as § 244(e) prescribes, and the possession of means with which to depart promptly.

We thus have a situation where Patsis has been frustrated in all his attempts to legalize his entry and status in the United States. The facts remain that he did effect an illegal entry, not once but twice; that he jumped ship; that when he stayed, he knew the illegality of the entries thus effected; and that the second entry was made after he had already been deported formally once.

We have described the Special Inquiry Officer's disposition of the case in detail in order to show the several points which were raised before him, his analysis of the complicated statutes, and his resolution of some factors in Patsis' favor so that every provision of the Act which has any conceivable application could be considered. As stated at the beginning of this opinion, the Board of Immigration Appeals sustained the Officer's decision. In so doing it concluded, "We know of no administrative relief for which respondent is eligible other than voluntary departure".

Patsis' case as presented to us centers on the issue of the availability to him of the several discretionary suspension of deportation provisions of § 244; if any of these is available, the Officer and the Board erred in denying consideration of his case by the Attorney General. The following questions arise:

May the exclusion-of-a-crewman provision of § 244(f), which came into the statute only in October 1962 after Patsis had filed his application for suspension, be validly applied to him?

If not, then, it being readily apparent, for the reasons stated by the Officer, that paragraphs (1), (2), (3), (4), and the second alternative of (5) of § 244(a) have no possible application to Patsis, is he deportable under the first...

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