Alexiou v. McGrath, Civ. A. No. 222-50.

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 101 F. Supp. 421
• Docket Number: Civ. A. No. 222-50.
• Parties: ALEXIOU v. McGRATH et al.
• Decision Date: 19 November 1951

101 F. Supp. 421

ALEXIOU
v.
McGRATH et al.

Civ. A. No. 222-50.

United States District Court District of Columbia.

November 19, 1951.

101 F. Supp. 422

David Rein, Washington, D. C., for the plaintiff.

Ross O'Donoghue, Samuel K. Abrams, and Jerome Powell, Asst. U. S. Attys., Washington, D. C., for the Government.

YOUNGDAHL, District Judge.

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, "Upon examination of the file covering the alien, which contains not only the record of hearing but other evidence concerning the alien's activities, we are satisfied that as a matter of discretion the recommendation of the Presiding Inspector should be followed and the alien deported. * * * Since relief from deportation is not a matter of right but of discretion, it is quite apparent that any evidence, whether or not of record, officially touching upon the question of qualification for the benefit sought may be considered. The evidence in the file (some of it confidential in nature) establishes to our satisfaction that the alien's continued presence in the United States would be prejudicial to the interests of this country. Obviously, therefore, the request made by this deportable alien must be denied."

Thereafter, in accordance with the rules and regulations of the Immigration and

101 F. Supp. 423

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.,...