Caetano v. Shaughnessy
| Decision Date | 29 July 1955 |
| Parties | Matter of the Petition for Review on behalf of Jose Zurrapa CAETANO or Jose Caetano Zurrapa, Petitioner, v. Edward J. SHAUGHNESSY, District Director of Immigration and Naturalization of the District of New York, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Nemeroff, Jelline, Danzig & Paley, New York City, Aaron L. Danzig, New York City, of counsel, for petitioner.
J. Edward Lumbard, U. S. Atty., New York City, Eliot H. Lumbard and Lester Friedman, New York City, of counsel, for respondent.
On the ground that after admission to the United States as a visitor for pleasure petitioner failed to comply with the conditions of such status, the Immigration and Naturalization Service ordered his deportation. Petitioner thereupon instituted this proceeding to review said determination. The respondent then moved to dismiss the proceeding pursuant to Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. The parties have submitted affidavits and, upon the argument, the respondent handed up the entire administrative file. The motion will therefore be treated as one for summary judgment.
The petition alleges that (i) no legal evidence of any nature was produced at the hearing that can form the basis of a finding and order for deportation; (ii) the decision and order was illegal and erroneous in that there was no legal substantial evidence on the record as a whole to support the same; and (iii) the proceedings were void in their entirety for failure to comply with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq.
The third ground was heretofore raised by the very counsel who appear for the petitioner in this proceeding in Couto v. Shaughnessy, 2 Cir., 1955, 218 F.2d 758, certiorari denied 349 U.S. 952, 75 S.Ct. 879. It was rejected there and its present reiteration by counsel adds no weight to it.
In the administrative record, as Exhibit 2, is a signed, sworn statement dated September 29, 1954, bearing petitioner's name. It is admitted in said statement that Jose Caetano Zurrapa arrived at the Port of New York in July 1952 as a visitor intending to stay about sixty days and that he had not secured any extensions of his temporary stay. The statement discloses compliance with 8 C.R.F. 242.11(c), the officer who obtained the same having identified himself to Jose Caetano Zurrapa, warned him that any statements made by him may be used against him in any subsequent proceeding, and placed him under oath.
Based upon the information thus disclosed a warrant of arrest was served on petitioner charging him with violating Section 241(a) (9) of the Immigration and Naturalization Act, 8 U.S.C.A. § 1251(a) (9), in that after admission to the United States as a non-immigrant, to wit, a visitor for pleasure under Section 3(2) of the Immigration Act of 1924, he failed to comply with the conditions of such status.
The petitioner was afforded hearings before a Special Inquiry Officer to show cause why he should not be deported He admitted his name was Jose Zurrapa Caetano, that he was single, and that he was the same person upon whom the warrant of arrest bearing his name was served. Upon advice of counsel, he refused to answer the below noted pertinent questions concerning his status and entry, asserting as ground for such refusal that his answers might tend to incriminate him.
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