Azzollini v. Watkins, 168
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | AUGUSTUS N. HAND, CHASE, and FRANK, Circuit |
| Citation | 172 F.2d 897 |
| Parties | AZZOLLINI et al. v. WATKINS, Dist. Director of Immigration, etc. |
| Docket Number | Docket 21217.,No. 168,168 |
| Decision Date | 10 March 1949 |
172 F.2d 897 (1949)
AZZOLLINI et al.
v.
WATKINS, Dist. Director of Immigration, etc.
No. 168, Docket 21217.
United States Court of Appeals Second Circuit.
March 10, 1949.
Charles Graff, of New York City, for plaintiffs-appellants.
John F. X. McGohey, U. S. Atty., of New York City (Louis Steinberg, Alvin Lieberman, and Harold J. Raby, all of New York City, of counsel), for defendant-appellee.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Until the enactment of the Administrative Procedure Act of 1946, it was clear that habeas corpus was the only procedure by which deportation proceedings could be reviewed. Imperiale v. Perkins, 62 App. D.C. 279, 66 F.2d 805; Kabadian v. Doak, 62 App.D.C. 114, 65 F.2d 202; Sibray v. United States, 3 Cir., 185 F. 401. Petitioner contends that § 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, authorizes review by means of this petition to review, even though he is not now in custody. The Court of Appeals for the Third Circuit so held in United States ex rel Trinler v. Carusi, 166 F.2d 457. But we need not decide this question, for, even if this form of review is permissible, the petition is without merit.
Petitioner argues that the deportation proceeding was improper because "the only hearing accorded to petitioner was the hearing by the prosecuting inspector, contrary to the regulations as set forth." By this he means that the same inspector acted as both investigator and hearing examiner — examining petitioner on behalf of the Immigration Service and recommending deportation to the Commissioner. There was no independent presiding officer of the sort required where § 5(c) of the Administrative Procedure Act, 5 U.S.C.A. § 1004(c) applies.
Assuming that the requirement of an independent presiding officer would otherwise apply, we find that there has been no violation of the Act in this case, for § 7(a) of the Act, 5 U.S.C.A. § 1006(a), states: "nothing in this act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before
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Cisternas-Estay v. Immigration and Naturalization Service, CISTERNAS-ESTAY and D
...5, 1917, 39 Stat. 887. See, e.g., United States ex rel. Saclarides v. Shaughnessy, 180 F.2d 687 (2d Cir. 1950); Azzollini v. Watkins, 172 F.2d 897 (2d Cir. 1949). Contra, United States ex rel. Trinler v. Carusi, 166 F.2d 457 (3d Cir.), rev'd on other grounds, 168 F.2d 1014 (3d Cir. In Wong ......
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Giambanco v. Immigration and Naturalization Service, 75--1401
...5, 1917, 39 Stat. 887. See, e.g., United States ex rel. Saclarides v. Shaughnessy, 180 F.2d 687 (2d Cir. 1950); Azzollini v. Watkins, 172 F.2d 897 (2d Cir. 1949). Contra, United States ex rel. Trinler v. Carusi, 166 F.2d 457 (3d Cir.), rev'd on other grounds, 168 F.2d 1014 (3d Cir. In Wong ......
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Heikkila v. Barber, 426
...202; Darabi v. Northrup, 6 Cir., 54 F.2d 70. See also Impiriale v. Perkins, 62 App.D.C. 279, 66 F.2d 805; Azzollini v. Watkins, 2 Cir., 172 F.2d 897. 3. 'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion— '(a) RIGHT OF REVIE......
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Prince v. COMMISSIONER OF IMMIGRATION & NATURALIZATION, Civ. A. No. 25968.
...D.C. 279, 65 F.2d 805; Kabadian v. Doak, 62 App.D.C. 114, 65 F.2d 202; Sibray v. U. S., 3 Cir., 185 F. 401; Azzollini v. Watkins, 2 Cir., 172 F.2d 897. Petitioner contends that Sec. 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, authorizes judicial review by means of this petiti......