Corona v. Landon, 15014.

• Decision Date: 13 March 1953
• Docket Number: No. 15014.,15014.
• Citation: 111 F. Supp. 191
• Parties: CORONA v. LANDON, District Director et al.
• Court: U.S. District Court — Southern District of California

111 F. Supp. 191

CORONA v. LANDON, District Director et al.

No. 15014.

United States District Court S. D. California, C. D.

March 13, 1953.

Esther Shandler, Los Angeles, Cal. for plaintiff.

Walter S. Binns, U. S. Atty., Clyde C. Downing, Asst. U. S. Atty., and Arline Martin, Asst. U. S. Atty., Los Angeles, Cal., for defendants.

YANKWICH, Chief Judge.

The plaintiff, Francisco Espinoza Corona, is a native of Mexico. He entered the United States for permanent residence at Laredo, Texas, on March 29, 1928. In January, 1945, he went to Mexico for a short visit, returning on January 28, 1945. He is married to a native-born citizen, Dominga Franco Corona, and is the father of two native-born sons, aged seven and four years. He lives with his family.

On October 17, 1946, a warrant of arrest was issued by the Immigration and Naturalization Service which was served on him on or about May 27, 1947. He is at liberty on a bond of $4000.00.

The warrant of arrest charged that the plaintiff entered the United States at San Ysidro, California, on January 28, 1945, and has been found in the United States in violation of the immigration laws and subject to deportation under the Act of October 16, 1918, as amended, in that he has been found to have been, prior to entry, a member of an organization, association, society or group, that advises, advocates or teaches the overthrow, by force or violence, of the Government of the United States.

Hearings upon the charge contained in the warrant began on April 14, 1950. On April 26, 1951, at the conclusion of the hearings, the Hearing Officer issued his decision recommending that plaintiff be deported from the United States upon the warrant charge and upon additional charges, introduced at the hearings, that the plaintiff was found to have been, both before and after entry, a member of the Young Communist League of the United States, a section, subsidiary, branch, affiliate or subdivision of the Communist Party of the United States.

After timely exceptions were filed with the Commissioner of Immigration and Naturalization, the Commissioner affirmed and adopted the recommendations of the Hearing Officer in so far only as they related to his finding that the plaintiff had been, both before and after entry, a member of the Young Communist League. The Commissioner deleted the charge contained in the warrant that the plaintiff was, prior to entry, a member of an organization, association, society, or group that advises, advocates or teaches the overthrow, by force or violence, of the Government of the United States.

The Commissioner's decision was affirmed by the Board of Immigration Appeals on November 19, 1952. The order affirmed by the Board is final and a warrant for the plaintiff's arrest has been issued pursuant to it.

In a Complaint for a review under the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011, directed only against H. R. Landon, District Director, Los Angeles District of the Immigration and Naturalization Service, plaintiff, after stating the facts just recited, alleges, generally, that the administrative hearing was unlawful and void, and that he was denied due process and a fair hearing. He challenges the constitutionality of Section 22 of the Internal Security Act of 1950, 8 U.S.C.A., former Section 137, now Section 1182(a)(28)(C) of the same title, which makes membership in any section, subsidiary, branch, affiliate or subdivision of the Communist Party by an alien after entry a ground for deportation. He seeks a determination that the Order and Warrant for his deportation are void as are also all the deportation proceedings. He requests us to enjoin the defendant Landon from deporting him. An Order to Show Cause was issued on January 28, 1953. Prior to the hearing on the Order to Show Cause, the defendant moved to dismiss upon the ground that the Court had no jurisdiction of the matter and that the Commissioner of Immigration was an indispensable party to the proceedings without whose presence in court the matter cannot be determined.

I am of the view that the Complaint does not state a claim upon which relief can be granted. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. I do not believe that the determination of the Commissioner of Immigration ordering deportation can be reviewed in an action against the District Director. Conceding that, generally, the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., applies to deportation proceedings, Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, and that the scope of judicial inquiry is broadened, 5 U.S.C.A. § 1009(e), the decisions to this effect do not substitute other methods of review for the accepted method of reviewing an order of deportation by habeas corpus. 5 U.S.C.A. § 1009. Sung v. McGrath, supra, was such a proceeding. The only question before the Court was whether certain requirements, — especially the one which prevents certain prosecuting officers from acting as judicial officers, — contained in the Administrative Procedure Act applied to such hearing. That case is made the basis for the decision of the Court of Appeals for the Ninth Circuit in Yanish v. Barber, 9 Cir., 1950, 181 F.2d 492. The Court, in a very brief per curiam decision, merely held, after citing Sung v. McGrath, supra, that the Administrative Procedure Act and the regulations under it applied to proceedings instituted prior to the enactment of the Act. It did not rule, and I do not interpret it as passing upon any other grounds advanced by Judge Harris in his decision. Yanish v. Wixson, D.C.Cal.1948, 81 F.Supp. 499. In the absence of a binding decision from the Court of Appeals for the Ninth Circuit, I share, as the more logical one, the view expressed in such decisions as Connor v. Miller, 2 Cir., 1949, 178 F.2d 755; Podovinnikoff v. Miller, 3 Cir., 1950, 179 F.2d 937; Slavik v. Miller, 3 Cir., 1950, 184 F.2d 575, and Paolo v. Garfinkel, 3 Cir., 1952, 200 F.2d 280, that in an action such as this, where the final order of the Commissioner of Immigration and Naturalization is in issue, he is an indispensable party. If we apply to these proceedings, indiscriminately, the ruling of the Supreme Court in Williams v. Fanning, 1947, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95, we will find ourselves reviewing, as the plaintiff here seeks to have us review, all the actions of the Commissioner in a proceeding to which he was not a party.

Under the teachings of Williams v. Fanning, supra, that could well be done provided the conditions were such that

"the decree which is entered will effectively grant the relief desired by expending itself on the subordinate official who is before the court." Williams v. Fanning, supra, 332 U.S. 494, 68 S.Ct. 189.

The reason why the Court held that a proceeding against the local postmaster was adequate under the circumstances were these: The Postmaster General, after a hearing in Washington, D. C., found that Williams' weight-reducing enterprise was fraudulent. He issued a fraud order, 39 U.S.C.A., §§ 259, 732, directing the Postmaster at Los Angeles, California, to refuse payment of any Money Order drawn to the order of the petitioners, to advise the sender that the payment had been forbidden, and to stamp "fraudulent" on all mail matter directed to the petitioner and to return it to the sender.

Williams' business, as the opinion says, was located at Los Angeles. The fraud order affected his business in that locality. The Postmaster General did not issue an order at large commanding every postmaster who might receive mail addressed to Williams to refuse it. He specifically directed the postmaster of Los Angeles to do the enumerated matters. The Supreme Court considered the local postmaster the only indispensable party because it was he who declined to cash money orders, marked the mail "fraudulent" and refused to allow it to be delivered under a direct order issued to him. Rightly, as the Court said:

"* * * If he desists in those acts, the matter is at an end." Williams v. Fanning, supra, 332 U.S. at page 494, 68 S.Ct. at page 189.

Similarly, Koepke v. Fontecchio, 9 Cir., 1949, 177 F.2d 125, which is referred to as warranting the relief sought in this case, discloses the fact that there, as in Williams v. Fanning, supra, the Court was dealing with a localized business. The question before the Court was whether the plaintiff's premises in use as a motor court were controlled housing accommodations. The Court being of the view that they were not, the doctrine of Williams v. Fanning, supra, was applied, for the reason that such declaration in an action against the area rent director would effectively determine the issue of decontrol, and would leave the owner undisturbed by the only official who could interfere, the local area rent director.

In the present case, the Order of Deportation affects not the petitioner's property or business located in a particular place, but his person. The warrant of deportation which follows the Order of Deportation is not directed to a particular director. It is a general warrant of deportation which may be served in any district where the plaintiff is found. 8 U.S.C.A. §§ 1251, 1252. The district director performs no other function than to execute the warrant in his district if the deportee is found there.

This is the ministerial act of a subordinate officer. An attack on it could not bring up for determination the validity of the warrant of arrest and of the orders of the Commissioner under which a particular district director might take the deportee into custody.¹ Indeed, as Judge Goodrich pointed out in Paolo v. Garfinkel, 3 Cir., 1952, 200 F.2d 280, if the deportee moved to another district, a ruling in his favor in the district of his former residence would not prevent the execution of the warrant by the director of the district to which he has moved, who was not a party to the action. Judge Goodrich aptly stated:

"What Mr.

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