Arakas v. Zimmerman, 10753.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: GOODRICH, McLAUGHLIN and STALEY, Circuit
• Citation: 200 F.2d 322
• Parties: ARAKAS v. ZIMMERMAN.
• Docket Number: No. 10753.,10753.
• Decision Date: 04 December 1952

200 F.2d 322 (1952)

ARAKAS
v.
ZIMMERMAN.

No. 10753.

United States Court of Appeals Third Circuit.

Argued October 14, 1952.

Decided December 4, 1952.

Lena L. Orlow, Philadelphia, Pa. (Orlow & Orlow, Philadelphia, Pa., on the brief), for appellant.

Alfred L. Luongo, Asst. U. S. Atty., Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., Philadelphia, Pa., William B. Taffet, District Counsel, Immigration and Naturalization Service, Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is an appeal from an order of the district court granting appellee's motion to dismiss a petition for a writ of habeas corpus.

Appellant, a Greek national, entered this country as a seaman in 1927. While here he jumped ship and thereafter remained illegally in the United States. Sometime later expulsion proceedings were instituted against him. After hearing he was ordered deported and was actually deported on November 9, 1932. On October 26, 1942, he reentered the United States as an alien seaman.

200 F.2d 323

He again jumped ship and stayed illegally in this country. He was arrested and on April 10, 1943, after hearings on the warrant of arrest, was ordered deported. On his motion the proceedings were reopened and further hearings were held on March 9 and April 18, 1944. Deportation was recommended in an opinion filed July 29, 1944, by the presiding inspector. On November 3, 1944, the Board of Immigration Appeals granted appellant permission to depart voluntarily four months after the close of hostilities in Europe. In 1946 and 1947 the Commissioner of Immigration and Naturalization granted several extensions of time to appellant within which to depart voluntarily. These were principally to enable him to obtain certain medical treatments. On August 5, 1947, the Commissioner again ordered appellant's deportation. An appeal was taken to the Board and dismissed by that body. In January, 1948, a private bill was introduced in the United States Senate on appellant's behalf. Deportation was held up during its pendency. It eventually failed of passage

On October 6, 1949, appellant was ordered to surrender for deportation. He petitioned the Commissioner for a stay so that he might become eligible for a suspension of deportation under the seven years' residence provision of a 1948 amendment to the Immigration Act, 8 U.S.C.A. Section 155(c), infra. The Commissioner denied the application. Arakas appealed to the Board and at the same time moved for reopening of the proceedings for consideration of suspension of deportation. The Board denied both the application for stay and motion to reopen by its order of October 26, 1949. He, having by that time established his seven years' residence, applied to the Board for a reopening of the proceedings. The motion was denied and the petition for habeas corpus followed. The motion to dismiss that petition was granted by the district court on September 26, 1951.

The issue before us is whether, on the above facts, due process requires that appellant be granted a hearing on his application for suspension of deportation.

Under the governing law, 8 U.S. C.A. Section 155(c), the pertinent amendment to which became effective July 21, 1948,¹ it was within the discretion of the Attorney General to suspend the deportation of Arakas as the latter's status came within the provisions of the section. He had resided in the United States continuously for seven years and was so residing upon the effective date of the amendment to the statute. The fact that a large part of that residence was within a period when he was actually under an order of deportation does not militate against its validity, and this is conceded by the Government. It...