THORNTON, District Judge.
The Court has before it plaintiff's motion for a preliminary injunction and defendant's motion to dismiss the complaint herein. The said motion of plaintiff is brief and is here set forth in its entirety:
"Now comes, Frank Cammarata, by his attorney, Joseph W. Louisell, and moves this Court for a preliminary injunction in this cause to enjoin the defendant Walter Sahli, his agents, officers, employees, successors and deputies and all persons acting through or under him, from enforcing a certain warrant directing the deportation of the plaintiff until the final determination of this cause.
"The grounds of this Motion are that plaintiff has filed a Motion with the Board of Immigration Appeals, Washington, D. C. for Re-opening and Reconsideration of the deportation proceedings to apply for relief from deportation under Public Law 85-316 of September 11, 1957 and regulations by the Attorney General promulgated thereunder. Said Motion was denied by the Board of Immigration Appeals on May 21, 1958 and, as charged in the complaint filed in this cause, said decision by the Board of Immigration Appeals was arbitrary, capricious and a denial of plaintiff's rights.
"Unless defendant is restrained from so doing, he will seek to enforce the warrant directing the plaintiff's deportation from the United States to the immediate and irreparable damage to plaintiff.
"No injury will result to the defendant from the granting of the injunction as the plaintiff is readily available for deportation in the event final judgment is rendered in favor of the defendant; that unless an injunction is granted as prayed for, plaintiff will be denied the opportunity to avail himself of statutory and administrative remedies provided in such matters by applicable statutes and regulations."
The motion of plaintiff's counsel on behalf of plaintiff which was denied by the Board of Immigration Appeals on May 21, 1958, was treated by said Board in its order of denial as follows:
"This case is before us pursuant to counsel's motion dated May 8, 1958 for reopening and reconsideration.
"The respondent is a 60-year-old married male, native and citizen of Italy, who stated that he first entered the United States about 1912 or 1913. An order of deportation was entered on June 4, 1931, and the respondent was deported on January 9, 1937. He testified that he reentered the United States as a stowaway in 1939 and that he has remained in this country since that time. In connection with an offense committed on July 1, 1925, the respondent was convicted on February 21, 1931 of armed robbery and was sentenced to imprisonment for a term of 15 to 30 years. On September 3, 1947 an order of deportation was entered by the Acting Commissioner and on January 20, 1948 we held that the respondent was not deportable on the lodged charge stated above but we affirmed the Acting Commissioner's order insofar as it directed deportation on the two charges stated in the warrant of arrest.
"The record file, which was transmitted to us with counsel's motion, does not indicate what transpired subsequent to July 19, 1948. Counsel failed to comply with the provisions of 8 C.F.R. 6.21 to the effect that the moving party shall state whether or not the alien is the subject of a pending criminal proceeding under 8 U.S.C. 1252(e) in cases where a deportation order is outstanding, and that there shall be included in the motion a statement as to whether or not the alien is subject to any pending criminal prosecution in cases where the motion is for the purpose of seeking discretionary relief. However, counsel's motion indicates that the respondent is presently confined in a Michigan prison and the Service has informed us that he is to be released on May 29, 1958. We observe from In re Cammarata's Petition (1954), 341 Mich. 528, 67 N.W.2d 677 that the respondent was extradited from Ohio and returned to Michigan on July 2, 1953 for violation of his parole. Hence, it appears that he has been incarcerated in a penal institution from July 1953 to the present time.
"Counsel's motion is predicated on Section 5 of the Act of September 11, 1957 (Public Law 85-316; 71 Stat. 639), and he requests that the respondent be given an opportunity to establish his eligibility for a waiver of the criminal grounds of excludability. Counsel asserts that the respondent's deportation would be an extreme hardship to his United States citizen spouse and children. Apparently there are three children who were born about 1927, 1931 and 1938.
"8 U.S.C. 1101(f) (7) precludes a finding of good moral character where the alien has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more during the period for which he is required to establish good moral character. This provision does not bar the granting of relief under Section 5 of the Act of September 11, 1957 since that statutory provision does not contain a specific requirement that the alien shall establish good moral character. However, the granting of such relief is discretionary.
"The respondent has apparently been confined to a penal institution since July 1953—a period of almost five years. We believe that he should not be granted relief under Section 5 of the Act of September 11, 1957 at this time because his recent imprisonment prevents a determination of whether or not he will rehabilitate himself and whether or not he is worthy of relief under that statutory provision. If we were to reopen the proceeding, we would find it necessary to exercise our discretion under Section 5 of the Act of September 11, 1957 by denying relief under that statutory provision. Accordingly, no useful purpose would be served in reopening the hearing. It is well settled that a rehearing in an administrative proceeding is not a matter of right but lies within the discretion of the agency making the order. United States v. Pierce Auto Freight Lines (1946) 327 U.S. 515, 535, 66 S.Ct. 687, 90 L.Ed. 821; Interstate Commerce Commission v. City of Jersey City (1944) 322 U.S. 503, 514, 64 S.Ct. 1129, 88 L.Ed. 1420. Assuming that the respondent is deported following his release from prison our action will not necessarily bar him permanently from returning to the United States since he may again apply under Section 5 of the Act of September 11, 1957 when he is in a position to establish that he merits that relief
"Order: It is ordered that counsel's motion be and the same is hereby denied."
The gist of plaintiff's contention here before this Court relates to the above denial by the Board on May 21, 1958 of the motion to reopen and reconsider the deportation proceedings which had culminated in the order of deportation of September 3, 1947. This order is one that was to have been put into effect as to plaintiff upon his release (May 29, 1958) from a Michigan prison where he has been confined since July 1953. (It appears from an office memorandum contained in Exhibit 2 herein from the Acting District Director of Detroit to the Chairman of the Board of Immigration Appeals, dated May 12, 1958, that the local Italian Consul had "committed to issue" a travel document and made arrangements to effect the deportation of the plaintiff to Italy via British Overseas Airways Corporation on May 29, 1958.) Plaintiff contends that the aforesaid denial by the Board on May 21, 1958, of the motion to reopen and reconsider was "arbitrary, capricious and a denial of plaintiff's rights."
It is the claim of plaintiff that the basis upon which he relies for relief is Section 5 of the Act of September 11, 1957, 8 U.S.C.A. § 1182b, hereinafter referred to as Section 5, which reads as follows:
"Any alien, who is excludable from the United States under paragraphs (9), (10), or (12) of section 1182 (a) of this title, who (A) is the spouse or child, including a minor unmarried adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or (B) has a son or daughter who is a Untied States citizen or an alien lawfully admitted for permanent residence, shall, if otherwise admissible, be issued a visa and admitted to the United States for permanent residence (1) if it shall be established to the satisfaction of the Attorney General that (A) the alien's exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, or son or daughter of such alien, and (B) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States; and (2) if the Attorney General, in his discretion, and pursuant to such terms, conditions, and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa and for admission to the United States. Pub.L. 85-316, § 5, Sept. 11, 1957, 71 Stat. 640."
Under this Act the bar is lifted as to certain aliens excludable under paragraphs (9), (10), or (12) of section 1182 (a) U.S.C.A., Title 8, to enable them to apply for admission to the United States.
As to aliens who are in this country and desire to take advantage of Section 5, there is available a provision in the regulations promulgated by The Commissioner of Immigration and Naturalization, which provision has been in effect for a number of years. This is a special provision to permit aliens, in certain classifications, within the United States to leave this country for Canada,...
