Batista v. Nicolls

Citation213 F.2d 20
Decision Date19 May 1954
Docket NumberNo. 4809.,4809.
PartiesBATISTA et al. v. NICOLLS.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Morton Silfen, New York City (Jacob Levy, Boston, Mass., and Aaron L. Danzig, New York City, with him on brief), for appellants.

Francis J. DiMento, Asst. U. S. Atty. (Anthony Julian, U. S. Atty., Boston, Mass., with him on brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

This is a consolidated appeal from judgments of the district court, entered October 21, 1953, dismissing for lack of jurisdiction, upon motion of respondent, three petitions seeking a declaratory judgment, and incidental temporary injunctive relief, under which petitioners sought to bring up for review the validity of orders of deportation. By stipulation our disposition of the Batista case is to determine the disposition of the other two cases.

In the brief record before us, all we know about the facts is contained in the allegations of the petition, from which we gather the following:

Respondent is District Director of Immigration and Naturalization of the District Office located at Boston, Massachusetts, which district includes the Office of Immigration and Naturalization Service at Hartford, Connecticut. On September 9, 1952, a hearing was conducted at the Hartford, Conn., office before a hearing examiner of the Immigration and Naturalization Service to show cause why petitioner should not be deported. On or about September 9, 1952, the hearing officer rendered his decision and order providing that petitioner be permitted to depart from the United States voluntarily at his own expense in lieu of deportation, within a period of time to be determined by the officer in charge of the district, and providing further that if petitioner failed to depart from the United States in the time so granted him, or any extension thereof, he was to be deported pursuant to law on the charge stated in the warrant of arrest. The evidence adduced at said hearing before the hearing examiner was alleged to be in contravention of the Fifth Amendment to the Constitution of the United States "in that your petitioner was deprived of due process of law in that your petitioner was not adequately represented by counsel or permitted the full exercise of his rights thereof in that he was compelled to testify on matters which might tend to incriminate him, such as his entry into the United States and his purpose in coming to the United States." On or about September 15, 1952, the officer in charge of the Immigration and Naturalization Service at Hartford, Conn., sent a notice to petitioner directing that he arrange to depart from the United States on or before November 15, 1952. It was alleged further that said decision and order of the hearing officer "is a final determination that petitioner be deported and petitioner has exhausted his administrative remedies"; that since that order and decision of the hearing officer was a final order "said notice that petitioner should depart from the United States on or before November 15th, 1952 is a final notice." Wherefore, petitioner prayed the district court to review the order of the hearing officer; to declare null and void the notice to petitioner to depart from the United States; to issue "a temporary injunction staying execution of the aforesaid order and notice to depart pending final determination of the issues of this action by this court".

As above stated, the notice sent to petitioner by the Immigration and Naturalization Service directed that he arrange to depart from the United States on or before November 15, 1952. The petition does not allege that he obtained any extension of time. The order of deportation provided that, if petitioner failed to depart within the time prescribed, he was to be deported pursuant to law. We are not informed from the petition whether, subsequent to November 15, 1952, petitioner was actually taken in custody by the Immigration and Naturalization Service to be deported pursuant to law. His petition in the present case was not filed in the district court until July 27, 1953. The petition did not seek relief by way of habeas corpus.

Section 19(a) of the Immigration Act of 1917, as amended 39 Stat. 890, 54 Stat. 671, 1238, contained this language: "In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final." Under such provision of law, the Supreme Court held in Heikkila v. Barber, 1953, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, that habeas corpus remained the only procedure by which an alien whose deportation had been ordered by the Attorney General might challenge such order in the courts, and specifically, that such review of a deportation order could not be obtained in a suit for declaratory judgment or injunctive...

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12 cases
  • Spinella v. Esperdy
    • United States
    • U.S. District Court — Southern District of New York
    • October 11, 1960
    ...divided court 92 U.S.App.D.C. 328, 206 F.2d 449; Heikkila v. Barber, 1953, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972; Batista v. Nicolls, 1 Cir., 1954, 213 F.2d 20), it now appears that under the Immigration and Nationality Act of 1952, judicial review of an administrative deportation order ......
  • Zupicich v. Esperdy
    • United States
    • U.S. District Court — Southern District of New York
    • July 11, 1962
    ...10 of the Administrative Procedure Act could not be extended to provide judicial review other than by habeas corpus. Batista v. Nicolls, 213 F.2d 20, (1st Cir. 1954) 4 See H.R.Rep. No. 1086, 87th Cong., 1st Sess. (1961) (Letter from Deputy Attorney General Byron R. White to Chairman). 5 "* ......
  • United States v. Barbaro
    • United States
    • U.S. District Court — District of Massachusetts
    • January 25, 1974
    ...an appellate court may take notice of a federal regulation which has not been called to the attention of the trial court, Batista v. Nicolls, 213 F.2d 20 (1 Cir. 1954); Green v. United States, 176 F.2d 541 (1 Cir. 1949). Copies of AR 735-10 and AR 735-11 as in effect at all times material t......
  • Aguilera-Flores v. Landon
    • United States
    • U.S. District Court — Southern District of California
    • September 22, 1954
    ...followed the Rubinstein case in Pedreiro v. Shaughnessy, 1954, 213 F.2d 768. The First Circuit took the contrary position. Batista v. Nicolls, 1954, 213 F.2d 20. I agree with the holding in Rubinstein that Congress, in enacting the 1952 Act, intended that deportation orders be reviewable un......
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