Arakas v. Zimmerman, 10753.

Citation200 F.2d 322
Decision Date04 December 1952
Docket NumberNo. 10753.,10753.
PartiesARAKAS v. ZIMMERMAN.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

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. 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 was on the authority of the residence clause of 155 (c) that Arakas made his application, as he had the right to do. The asserted necessity of a hearing on his application, however, presents a far different question.

By the regulations of the Attorney General, 8 C.F.R. 90.11(b),2 the granting or denial of the motion to reopen the hearing was expressly a matter for the discretion of the Board. The Board followed the prescribed procedure with exactitude. Its order of October 31, 1949, denying the motion outlined the history of Arakas' illegal reentry and subsequent stay in this country. It set out that by August 5, 1947, when his deportation was again ordered, there had been ample opportunity afforded him to depart voluntarily; that upon the introduction of private legislation on his behalf the proceedings against him had been halted until after the bill had failed of passage. It stated that his seven years' residence was acquired under the circumstances shown in the record and which we have briefly outlined above. It called attention to the fact that the provisions of 8 U.S.C.A. Section 155(c) are discretionary and that appellant's previous application based on that statute had been denied. It concluded by saying, "For all of the reasons hereinabove given, and upon consideration of all of the evidence of record, it is the conclusion of this Board that the motion must necessarily be denied."

Appellant contends that Subsection 150.6(g) of the Regulations3 gave him the right to a hearing on his motion and that at such hearing he was entitled to introduce evidence on behalf of his application. This claim is completely without foundation. The particular subsection relied on relates to and outlines the procedure an alien may use during his deportation hearing in order to apply for suspension of deportation under 8 U.S.C.A. Section 155(c). It has no bearing upon the present facts. The application at bar which asks that the deportation hearing be reopened illustrates this. At the time it was made the deportation hearings on Arakas had been long since concluded. There had been no motion of that type...

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9 cases
  • Angelis v. Bouchard, Civ. A. No. 883-59.
    • United States
    • U.S. District Court — District of New Jersey
    • 29 Febrero 1960
    ...Another case involving an application for suspension of deportation, although brought under the 1917 Immigration Act, is Arakas v. Zimmerman, 3 Cir., 1952, 200 F.2d 322, in which the Court of Appeals was confronted with the question whether the applicant for suspension of deportation had be......
  • Immigration and Naturalization Service v. Jong Ha Wang
    • United States
    • U.S. Supreme Court
    • 2 Marzo 1981
    ...present procedures, the grant or denial of a motion to reopen was solely within the discretion of the Board. See Arakas v. Zimmerman, 200 F.2d 322, 323-324, and n. 2 (CA3 1952). The present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made.......
  • Wolf v. Boyd
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 19 Enero 1957
    ...of the entire record. This the Board was entitled to do. United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371; Arakas v. Zimmerman, 3 Cir., 200 F.2d 322. Petitioner in effect asserts that because she sees fit to designate her petition a "Motion to Reopen" rather than "Application......
  • Matter of Reyes
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 30 Junio 1982
    ...provided that the grant or denial of a motion to reopen was solely within the discretion of the Board. See Arakas v. Zimmerman, 200 F. 2d 322, 323 n. 2 (3 Cir. 1952); Kavadias v. Cross, 82 F. Supp. 716, 719-20 (N.D. Ind. 1948). We do not find the absence of such specific authorization in th......
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