Barrese v. Ryan
| Decision Date | 03 November 1960 |
| Docket Number | Civ. No. 8497. |
| Court | U.S. District Court — District of Connecticut |
| Parties | Philip BARRESE v. John P. RYAN, District Director, Immigration and Naturalization Service, Hartford, Connecticut. |
Stewart J. Stowell, East Hartford, Conn., for plaintiff.
Harry W. Hultgren, Jr., U. S. Atty., Hartford, Conn., for defendant.
Plaintiff sues to enjoin defendant from deporting him to Italy. He seeks a judgment setting aside the deportation order entered against him and granting him a new hearing. Pending the final determination of this suit, plaintiff also seeks, pursuant to the Administrative Procedure Act § 10, 5 U.S.C.A. § 1009, a temporary injunction enjoining defendant from deporting or removing him from the United States and enjoining defendant from removing him from the jurisdiction of this Court.
This Court has jurisdiction over this action pursuant to 28 U.S.C.A. § 2201 and 5 U.S.C.A. § 1009.
Plaintiff, age 63, was born in Italy and is a national of that country. He came to the United States in 1916 and claims that he has resided in this Country for the past 44 years. Defendant challenges the continuity of plaintiff's residence in this Country.
Pursuant to Section 241(a) of the Immigration and Naturalization Act (8 U.S.C.A. § 1251(a)), a deportation order was entered against plaintiff ordering that he be deported on three separate statutory grounds: (1) that he was not in possession of a visa at the time of his last entry into the United States; (2) that he willfully failed to furnish periodic address reports to the United States Government; and (3) that after entry into the United States he was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, two offenses of having willfully failed to pay the occupational tax on the business of a retail liquor dealer, with intent to defraud the United States of such tax.
Plaintiff claims that the deportation order entered against him is contrary to law and constitutes a denial of his rights under the Constitution and statutes of the United States. Specifically plaintiff claims:
(a) At the deportation hearing before a special inquiry officer, plaintiff's counsel left the hearing and plaintiff was not allowed a continuance to secure other counsel.
(b) Plaintiff's appeal to the Board of Immigration Appeals from the order of the special inquiry officer directing that plaintiff be deported, was conducted from a federal prison without benefit of counsel or personal attendance by plaintiff.
(c) The finding of deportability on the ground that plaintiff was not in possession of a visa at the time of his last entry into the United States is contrary to the evidence in that plaintiff was a returning resident.
(d) The finding of deportability on the ground that plaintiff failed to furnish periodic address reports is contrary to the evidence in that it fails to establish willfullness.
(e) The finding of deportability on the ground that plaintiff was convicted of two crimes involving moral turpitude after entry into the United States is contrary to the evidence in that the two convictions arose out of a single scheme of criminal misconduct.
Turning first to plaintiff's claim that he was not represented by counsel throughout the deportation hearing before the special inquiry officer, the Court holds that plaintiff acquiesced in his counsel's withdrawal from the hearing and effectively waived his right to be represented by counsel during the balance of the hearing.
The transcript of the hearing before the special inquiry officer shows the following colloquy between plaintiff (referred to as respondent), his counsel and the special inquiry officer:
Plaintiff at no time asked for a continuance because of the absence of his counsel nor did he request an opportunity to obtain new counsel.
Plaintiff relies on Handlovits v. Adcock, D.C.E.D.Mich.1948, 80 F.Supp. 425, in support of his claim that the waiver of his right to counsel was ineffective. Handlovits is distinguishable from the instant case on the ground that there, as the court emphasized, the evidence showed that petitioner did not understand what she was doing when she waived her right to counsel. In the instant case, on the contrary, the Court is satisfied that the record establishes that plaintiff did understand what he was doing when he stated, after conferring with his counsel, that it was all right to proceed with the hearing in the absence of his counsel.
Turning next to plaintiff's claim that he was not represented by counsel on his appeal before the Board of Immigration Appeals, the Court holds that plaintiff was deprived of his privilege of being represented before the Board by counsel of his choosing and that he did not waive that privilege.
The decision of the special inquiry officer ordering plaintiff deported was filed February 3, 1960. A copy of this decision was sent February 4, 1960 to plaintiff at the United States Penitentiary in Lewisburg, Pennsylvania; but was returned to the Immigration and Naturalization Service on February 17, 1960 with the notation stamped on the envelope that addressee (plaintiff) was "Not at this address." Another copy of the decision was sent at the same time to plaintiff's attorney who had withdrawn from the hearing before the special inquiry officer; but this attorney did not notify plaintiff that he had received a copy of the decision, nor did he inform plaintiff of the time within which an appeal might be filed. Through no fault of plaintiff, he first received notice of the decision...
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Barrese v. Ryan
...that he had been deprived of the privilege of being represented before the Board of Immigration Appeals by counsel of his choosing. 189 F.Supp. 449. Accordingly, without reaching the merits, the Court remanded the case to the Board with directions to accord plaintiff the privilege of being ......
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