Diminich v. Esperdy

• Decision Date: 29 December 1961
• Docket Number: No. 90,Docket 27086.,90
• Citation: 299 F.2d 244
• Parties: Graziano DIMINICH, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration & Naturalization Service, New York District, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

299 F.2d 244 (1961)

Graziano DIMINICH, Plaintiff-Appellant, v. P. A. ESPERDY, as District Director of the Immigration & Naturalization Service, New York District, Defendant-Appellee.

No. 90, Docket 27086.

United States Court of Appeals Second Circuit.

Argued November 29, 1961.

Decided December 29, 1961.

Certiorari Denied April 9, 1962.

Alfred Feingold, New York City, for plaintiff-appellant.

Roy Babitt, Special Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, New York City), for defendant-appellee.

Before CLARK, FRIENDLY and KAUFMAN, Circuit Judges.

Certiorari Denied April 9, 1962. See 82 S.Ct. 875.

FRIENDLY, Circuit Judge.

Diminich, a Yugoslav seaman who entered the United States illegally, appeals from an order of Judge MacMahon in the District Court for the Southern District of New York, which granted a motion for summary judgment by the District Director of the Immigration and Naturalization Service in an action to annul an order refusing to withhold deportation. The order resulted from an application for relief under § 243(h) of the Immigration Act of 1952, 8 U.S. C.A. § 1253, which authorizes the Attorney General "to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason." A Special Inquiry Officer of the Service, who had heard Diminich, recommended denial, and the Regional Commissioner for the Northeast Region, to whom the Attorney General has delegated his authority, 8 C.F.R. § 243(b) (2), followed that recommendation.

Before addressing ourselves to the issues raised with respect to § 243 (h), we shall rule on an alternative contention based on § 15(a) (3) of the Act of September 11, 1957, 71 Stat. 643, which authorizes consular officers to issue certain non-quota immigrant visas remaining from those authorized by the Refugee Relief Act of 1953, 50 U.S.C.A. Appendix §§ 1971-1971q, to "refugee-escapees," defined as including "any alien who, because of persecution or fear of presecution on account of race, religion, or political opinion has fled or shall flee (A) from any Communist, Communist-dominated, or Communist-occupied area * * *" as expanded by regulations, 8 C.F.R. § 245.1, permitting District Directors, upon application, to adjust the status of certain aliens under that section without the necessity of departure from the country if the State Department's Office of Refugee and Migration Affairs finds the alien qualified and allocates a visa. Although Diminich made no application under the 1957 Act, he contends that the District Director was bound to advise him of the possibilities that might, or might not, be open thereunder. We find no basis for so holding; and the Regulation has now been amended so as not to apply to crewmen. So we return to § 243(h).

Diminich was born January 11, 1938, at San Lorenzo di Albona, then in Italy, now in Yugoslavia. He began work as a seaman late in 1955. He deserted his vessel in Italy in November, 1956, avowedly in protest against being urged to attend Communist meetings on board and also for fear "they would put me ashore — out of work, because they didn't like anybody to go to church"; he remained in refugee camps in Italy until the summer of 1957, when he shipped on the "Anna Maersk," a Danish vessel. This he deserted on October 15, 1957, in New York, allegedly for the same reasons as his previous desertion in Italy. He was apprehended on April 2, 1959; a warrant of deportation, a petition under § 243(h), and a hearing swiftly followed.

At the hearing before the Special Inquiry Officer, Diminich testified that neither he nor any member of his family in Yugoslavia had been arrested "or in trouble with the authorities" since 1945 when an uncle was killed, allegedly "because he was against Communism"; however, the authorities "made difficulties for me inasmuch as they wanted me to join the Communist Party while I was there and I wouldn't do that; and when I was at home and I wanted to go to Mass they prevented me from doing so." He feared that if he were to return to Yugoslavia, he would be imprisoned, for "perhaps two years," "for the fact that I left and deserted my vessel and that proves that I am against Communism." On the other hand, he admitted that he was never deprived of an opportunity to earn a living in Yugoslavia despite his allegedly known anti-Communist views and religious devotion, and that his father is employed. The Special Inquiry Officer concluded that the application should be denied for lack of proof, and the Regional Commissioner for the Northeast Region, considering the evidence at the hearing "and other pertinent evidence and available information," so ordered.

If this were all, the case would not differ significantly from other deportation cases of Yugoslav seamen where the evidence has been held insufficient to warrant overturning the determination of the Attorney General or, more realistically, of his delegate, Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956), to whom Congress has confided discretion and who has access to information, not available to a reviewing court, against which the seaman's assertions must be weighed. See United States ex rel. Dolenz v. Shaughnessy, 200 F.2d 288 (2 Cir. 1952), cert. denied 345 U.S. 928, 73 S.Ct. 780, 97 L.Ed. 1358 (1953) under predecessor statute that "no alien shall be deported under any provisions of this chapter to any country in which the Attorney General shall find that such alien would be subjected to physical persecution"; United States ex rel. Dolenz v. Shaughnessy, 206 F.2d 392 (2 Cir. 1953); Sunjke v. Esperdy, 182 F. Supp. 599 (S.D.N.Y.1960), appeal dismissed April 13, 1960 (2 Cir.), cert. denied sub nom. Roncevich v. Esperdy, 364 U.S. 815, 81 S.Ct. 43, 5 L.Ed.2d 46 (1960); Blazina v. Bouchard, 286 F.2d 507 (3 Cir. 1961), cert. denied 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961). As in Blazina's case, the most reasonable inference from Diminich's testimony that he would be imprisoned on returning to Yugoslavia is that this would be punishment for desertion of his vessel, "a criminal sanction that is reconcilable with generally recognized concepts of justice," 286 F.2d at 511. Beyond that, Diminich's claims were simply of "difficulties"; repugnant as we find such interference with religious observance and freedom of association to be, "difficulties" are not the "physical persecution" which Congress chose to make the sole factor warranting a stay of deportation,¹ see 286 F.2d at 511, even if the Commissioner were required to credit Diminich's assertions, as he was not.

However, Diminich presses an additional point upon us. The background for this is the ruling of the Commissioner of Immigration in October, 1956, deferring action on the application of John Martinovich, who had made allegations of probable harsh treatment because of Catholic and anti-Communist sentiments, and of all other Yugoslav nationals making similar assertions, in order to allow the Service to collect reliable information as to conditions in Yugoslavia. This order was withdrawn on February 1, 1958, and the determinations of the Service resulting from its investigation were shortly set forth in a decision by the Assistant Commissioner of the Enforcement Division in Matter of Kale, Adm. Dec. A9 555 532, which, in May, 1958, was forwarded to Regional Commissioners with instructions that decisions as to all Yugoslav crewmen who had entered since 1945 and had been in Yugoslavia at some time since that date should be "based upon the criteria" stated therein. The decision stated that "various sources, including the personal observations of officers of this Service" in Yugoslavia had established that "The Government of Yugoslavia is completely under the domination and control of the Communist Party of Yugoslavia"; that "Advancement in almost any line of activity is, with few exceptions, limited to Party members"; that "The basic freedom to criticize, as we know...