Alexiou v. McGrath
Decision Date | 19 November 1951 |
Docket Number | Civ. A. No. 222-50. |
Citation | 101 F. Supp. 421 |
Parties | ALEXIOU v. McGRATH et al. |
Court | U.S. District Court — District of Columbia |
Ross O'Donoghue, Samuel K. Abrams, and Jerome Powell, Asst. U. S. Attys., Washington, D. C., for the Government.
Plaintiff is seeking a judgment setting aside an order of deportation and restraining defendants from deporting her pursuant to such order.
The essential facts are not in dispute. Plaintiff is an alien and a native of Canada. She is married to a citizen of the United States. She entered this country from Canada without an immigration visa and is therefore subject to deportation.
Pursuant to the provisions of 8 U.S.C.A. § 155(c), plaintiff applied for suspension of deportation because of her marriage to a citizen of the United States. She was granted a hearing on her request for suspension of deportation in accordance with the regulations of the Immigration and Naturalization Service. After the hearing before the Presiding Inspector, he concluded "that under Section 19(c)(2) of the Immigration Act of February 5, 1917, as amended, the respondent is ineligible for suspension of deportation".
The Acting Commissioner of Immigration reviewed and affirmed the Inspector's opinion and said, inter alia,
Thereafter, in accordance with the rules and regulations of the Immigration and Naturalization Service plaintiff appealed the decision of the Acting Commissioner of Immigration to the Board of Immigration Appeals. On November 8, 1949, this Board reversed the decision of the Acting Commissioner. The Board held that it was an error of law for the Acting Commissioner of Immigration to base his conclusion upon not only the record of hearing but other evidence concerning the alien's activities.
Thereafter, on November 16, 1949 the Acting Attorney General issued an order approving the decision and order of the Board of Immigration Appeals.
However, on December 17, 1949, without notice or hearing, the Acting Attorney General entered an order withdrawing his approval of November 16, 1949; disapproved the decision and order of the Board of Immigration Appeals and approved the order of deportation. The record does not disclose the reason for the reversal of the position of the Acting Attorney General.
Plaintiff contends that she was denied a fair hearing because, admittedly, evidence not of record was considered on the issue of eligibility for suspension of deportation. The government at the time of trial conceded that plaintiff was eligible for suspension of deportation and that the action of the Attorney General in refusing to suspend is not reviewable.
Under the regulations adopted by the Attorney General a quasi-judicial procedure has been established for the purpose of enabling him to properly and reasonably exercise his discretion in determining whether deportation shall be suspended under 8 U.S.C.A. § 155(c). These regulations are quite comprehensive in affording an opportunity for a fair hearing. 8 C.F.R., 150 6(a, b, c, g,), 150 7(a, b, c). They have the force and effect of law. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103. These rules are designed as safeguards against essentially unfair procedures. Bridges v. Wixon, supra. The Court in the Bridges case said at page 154 of 326 U.S., at page 1452 of 65 S.Ct.: What the government contends in essence is that even though this procedure has been established, suspension of deportation is not a vested right and a fair hearing is not required to be given; that the Attorney General is not bound by the hearing; that his decision is final and not reviewable.
It is true, of course, as the government contends, that the grant or denial of suspension of deportation is discretionary. Immigration Act of February 5, 1917, as amended, Section 19(c), 8 U.S.C.A. § 155 (c); U. S. ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369; U. S. ex rel. Von Kleczkowski v. Watkins, D.C., 71 F.Supp. 429. But it is quite another thing to assert that after regulations have been adopted providing for a fair hearing on the issue of eligibility for suspension of deportation that the Courts are precluded from examining the record to determine if a fair hearing has been accorded. If the position of the government were to be sustained then no matter how much the hearing was tainted with unfairness, no relief would be available, because the action of the Attorney General is final and is not reviewable....
To continue reading
Request your trial- McGuire v. Amrein, 5527
-
United States v. Shaughnessy
...discretion,' which we have again and again declared that we will not review." In this respect the case at bar is unlike Alexiou v. McGrath, D.C.D.C., 101 F.Supp. 421, where it affirmatively appeared that evidence not of record was considered on the issue of eligibility for suspension of We ......
-
United States v. Mackey
...United States ex rel. Accardi v. Shaughnessy, 206 F.2d 897. In that case, the court distinguished the case of Alexiou v. McGrath, D.C.D.C., 101 F. Supp. 421, and assumed arguendo that "since the Attorney General has provided by regulations the procedure by which a deportable alien is accord......
-
Arakas v. Zimmerman
...in support of appellant are of even less help to him than are the Regulations. We agree entirely with the holding in Alexiou v. McGrath, D.C.1951, 101 F.Supp. 421, but it is not in point here. In that case the alien applied for suspension of deportation at the deportation hearing, presumabl......