Bufalino v. Kennedy, 17140.
Decision Date | 06 June 1963 |
Docket Number | No. 17140.,17140. |
Citation | 322 F.2d 1016,116 US App. DC 266 |
Parties | Russell BUFALINO, Appellant, v. Robert F. KENNEDY, Attorney General of the United States, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. David Carliner, Washington, D. C., with whom Mr. Jack Wasserman, Washington, D. C., was on the brief, for appellant.
Mr. Gil Zimmerman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Max Frescoln, Asst. U. S. Attys., were on the brief, for appellee.
Before WASHINGTON, DANAHER and WRIGHT, Circuit Judges.
Appellant is an alien, a native and citizen of Italy. He has, however, been a resident of this country since age 10. In proceedings not relevant here, he was ordered deported. The validity of that deportation order can no longer be challenged. See Bufalino v. Holland, 3 Cir., 277 F.2d 270 (1960), cert. denied, 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85 (1960). In these proceedings, he asks judicial review of the administrative denial of two applications for discretionary relief filed in connection with his deportation case. On motion of appellee, the District Court granted summary judgment. We reverse and require a hearing in the District Court on the issue of prejudgment. We do not reach the other issues urged on appeal.
The two applications in suit arise under Sections 2491 and 243(h)2 of the Immigration and Nationality Act. In his § 249 application, appellant prays for the grant of permanent resident status, alleging that he has been a resident alien since before 1940. The District Director,3 Immigration and Naturalization Service, Philadelphia, Pennsylvania, denied appellant's application for permanent resident status under § 249, stating: The Regional Commissioner affirmed the order of the District Director. Efforts by appellant to have the matter certified to the Assistant Commissioner, Examinations, Immigration and Naturalization Service, Washington, D. C., were unavailing. Thus action on the § 249 application was brought to a final administrative conclusion.
In his § 243(h) application, appellant alleged physical persecution if returned to Italy, and asked for a temporary stay of deportation. In accord with the regulations promulgated to implement § 243 (h),4 this application for temporary suspension of deportation was first considered by a Special Inquiry Officer and, on appeal from his ruling, the Regional Commissioner, both of whom denied it.
Appellant then brought this action in the District Court, invoking the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009. He alleged, inter alia, in the District Court that the Immigration Service had prejudged his applications and asked for an evidentiary hearing on the issue of prejudgment. When the District Court granted appellee's motion for summary judgment, appellant brought this appeal. He attacks the District Court's judgment on several fronts, including its failure to grant a hearing on the issue of prejudgment.
In his complaint in the District Court, appellant alleged:
The appellee did not deny or explain any of these allegations by answer, in his motion for summary judgment, or in his "Defendant's Statement of Material Facts as to Which There is No Genuine Issue" filed with the District Court in support of his motion for summary judgment.
The facts and issues in Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), are remarkably close to the present case. There Accardi, having been ordered deported, applied to the Immigration Service for discretionary relief in the form of a suspension of deportation under § 19(c)5 of the Immigration Act of 1917. Under the regulation6 promulgated pursuant to this section, the discretion to grant the relief authorized by the statute was delegated to the Board of Immigration Appeals. Accardi alleged that the Board had prejudged his application for suspension of deportation because he, Accardi, was on a "confidential list of `unsavory characters' whom the Attorney General wanted deported," id. 347 U.S. at 267, 74 S.Ct. at 503, and that this list was "circulated" among the...
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Bufalino v. Immigration and Naturalization Service
...on other grounds in other forums. See Attorney General v. Bufalino, 125 U.S. App.D.C. 273, 371 F.2d 738 (1966); Bufalino v. Kennedy, 116 U.S.App.D.C. 266, 322 F.2d 1016 (1963). The details of the various protracted proceedings taking place during those years are not relevant to the issues p......
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Bufalino v. Detroit Magazine, Inc.
...683 F.2d 639 (CA 2, 1982). See also Bufalino v. Immigration & Naturalization Service, 473 F.2d 728 (CA 3, 1973); Bufalino v. Kennedy, 116 U.S.App.D.C. 266, 322 F.2d 1016 (1963); United States v. Bufalino, 285 F.2d 408 (CA 2, 1960); United States v. Bufalino, 518 F.Supp. 1190 (SD NY, 1981); ......
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Matter of Bufalino
...against the respondent on June 7, 1962. The respondent appealed and the appellate court, on June 6, 1963, reversed (Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir.)) and directed that the cause be returned to the District Court for a trial upon the limited issue of the respondent's contention......
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Matter of Lennon
...that his case has been prejudged by the Service. Counsel has cited Accardi v. Shaughnessy, 347 U.S. 260 (1954), and Bufalino v. Kennedy, 322 F.2d 1016 (D.C.Cir., 1963), as authority for this contention. Both of those cases involved aliens who were concededly deportable and were denied discr......