Anderson v. Holton, 11879.
Decision Date | 04 April 1957 |
Docket Number | No. 11879.,11879. |
Citation | 242 F.2d 596 |
Parties | Hugo ANDERSON, Plaintiff-Appellant, v. Ralph H. HOLTON, as District Director, Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Sydney B. Wexler, Morris J. Wexler and J. Lester Fink, Chicago, Ill., for plaintiff-appellant.
Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.
Before Duffy, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
In this appeal we are examining a single question narrowed by the briefs. Anderson, plaintiff, brought the proceeding below against the District Director to test the validity of a deportation order directed to plaintiff, and that order survived judicial examination. But Anderson takes issue with the district judge's view "that suspension of deportation is a statutory privilege within the discretion of the Attorney General of the United States, that is `Agency action by law committed to agency discretion,' and which accordingly, was not available for review under 5 U.S.C. § 1009." While Anderson obtained a review of all other matters underlying the deportation order, he wanted the district court to pass upon the hearing officer's finding of non-eligibility for discretionary relief for the reason that "Having been found `statutorily ineligible' to apply for suspension, he (Anderson) was deprived of the Attorney General's exercise of his discretion."
In explanation of his contention Anderson begins with the finding by the Special Inquiry Officer that he (plaintiff) was statutorily ineligible to apply for discretionary relief. From that premise plaintiff contends that a finding of "statutory ineligibility to be considered for suspension is part of the order of deportation and is judicially reviewable." But to understand the central issue it is necessary to have a grasp of the opinion reported as Jay v. Boyd, 1956, 351 U.S. 345, 351, 76 S.Ct. 919, 923, 100 L.Ed. 1242, which summarizes, one phase at least, of the situation before us:
Mr. Justice Reed, writing for the majority in Jay v. Boyd, 1956, 351 U.S. 345, 353, 76 S.Ct. 919, 924 commented on the exercise of discretion to suspend deportation, in these terms:
Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, impressively attests to the unfettered discretion granted the Attorney General by § 244 of the Immigration and Nationality Act of 1952, 66 Stat. 215, 8 U.S.C.A. § 1254. Because Congress went on to confide such discretion in the Attorney General we think an instance of judicially nonreviewable administrative discretion arises under § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009 providing:
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...review in an action brought under section 10 of the Administrative Procedure Act is supported by much authority.8 But see Anderson v. Holton, 7 Cir., 1957, 242 F.2d 596, wherein review of a denial of suspension of deportation based upon a finding of statutory ineligibility was denied9 and F......
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