Dombrovskis v. Esperdy

• Decision Date: 13 March 1961
• Citation: 195 F. Supp. 488
• Parties: Janis Osvald DOMBROVSKIS, Tomislav Dragoievich, Bozidar Dunich, Ernest Vilhelms Elerts, Nikolo Grancaric, Sime Grancaric, Joso Grando, Mate Gregov, Krizan Ivanov, Slavko Jezina, Ljubo Komadina, Ivan Latkovic, Cesar Malesic, Sime R. Martinovich, Sime Matesic, Joso Patrk, Svetko Petric, Ante Spaleta, Pere Stojak, Giovanni Stroligo, Sime Telac, Joseph Zuzich and Frank Pavlak, Plaintiffs, v. P. A. ESPERDY, District Director, Immigration & Naturalization Service, United States Department of Justice, Defendant.
• Court: U.S. District Court — Southern District of New York

195 F. Supp. 488

Janis Osvald DOMBROVSKIS, Tomislav Dragoievich, Bozidar Dunich, Ernest Vilhelms Elerts, Nikolo Grancaric, Sime Grancaric, Joso Grando, Mate Gregov, Krizan Ivanov, Slavko Jezina, Ljubo Komadina, Ivan Latkovic, Cesar Malesic, Sime R. Martinovich, Sime Matesic, Joso Patrk, Svetko Petric, Ante Spaleta, Pere Stojak, Giovanni Stroligo, Sime Telac, Joseph Zuzich and Frank Pavlak, Plaintiffs, v. P. A. ESPERDY, District Director, Immigration & Naturalization Service, United States Department of Justice, Defendant.

United States District Court S. D. New York.

March 13, 1961.

Edith Lowenstein, New York City, for plaintiffs.

S. Hazard Gillespie, Jr., U. S. Atty. for the Southern Dist. of New York, New York City, Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel, for defendant.

DIMOCK, District Judge.

Motions for summary judgment have been made by plaintiffs and by defendant. In an opinion dated June 29, 1960, I granted defendant summary judgment dismissing plaintiffs' first claim, see D.C., 185 F.Supp. 478, and that claim is not now before me. I also granted plaintiffs' cross-motion to the extent of postponing and continuing the hearing of defendant's motion for summary judgment on the second claim in order to give plaintiffs an opportunity to take the depositions of certain persons. Plaintiffs have now completed the taking of depositions and have cross-moved for summary judgment.

Plaintiffs' applications for stays of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S. C. § 1253(h), have been denied. Plaintiffs contend that they have been victims of unlawful prejudgment of their cases by the Attorney General based on their status as crewmen. They seek relief by way of declaratory judgment and injunction. Plaintiffs are alien seamen, nationals of Yugoslavia or Latvia who reside in this country, and are admittedly deportable as illegal entrants or as temporary entrants who overstayed the period allowed them for shore leave.

Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), provides as follows:

"The Attorney General is authorized 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."

The pertinent administrative regulation reads in part:

"If the request for a stay of deportation is predicated upon a claim by the alien that he would be subject to physical persecution if deported to the country designated by the Service, he shall be requested, upon notice, to appear before a special inquiry officer for interrogation under oath. The alien may have present with him, at his own expense, during the interrogation any attorney or representative authorized to practice before the Service. The alien may submit any evidence in support of his claim which he believes should be considered by the special inquiry officer. Upon completion of the interrogation, the special inquiry officer shall prepare a written memorandum of his findings and a recommendation which shall be forwarded to the regional commissioner together with all the evidence and information submitted by the alien or which may be applicable to the case. The alien shall be served with a copy of the special inquiry officer's memorandum and recommendation and shall be allowed five days from date of service within which to submit written representations to the regional commissioner. If the alien refuses to appear for interrogation before a special inquiry officer when requested to do so or waives his appearance, all the pertinent evidence and available information in the case shall immediately be submitted to the regional commissioner. The decision whether to withhold deportation and, if so, for what period of time shall be finally made by the regional commissioner upon consideration of all the evidence submitted by the alien and any other pertinent evidence or available information." 8 C.F.R. 243.3 (b) (2).

The scope of judicial interference with the Attorney General's denial of stays of deportation is limited to cases where the alien has been denied procedural due process, or has not been afforded fair consideration of his application. E. g., United States ex rel. Leong Choy Moon v. Shaughnessy, 2 Cir., 218 F.2d 316; see United States ex rel. Dolenz v. Shaughnessy, 2 Cir., 206 F.2d 392. A claim that plaintiffs' applications were prejudged on the basis of their status as crewmen would, if substantiated, warrant a conclusion that the applications had not been fairly considered. Plaintiffs have failed, however, to substantiate their claim.

In my original opinion dealing with defendant's motion for summary judgment, I found that the recommendations and orders of denial of plaintiffs' applications indicated on their face that there had been fair consideration of the applications. I incorporate here that finding, 185 F.Supp. 478, 483-484:

"Plaintiffs' contention that the records are irrelevant is without foundation. The records of the plaintiffs who applied for withholding of deportation and have not withdrawn their applications or asked that they be held in abeyance3 reveal

3. It is possible that some plaintiffs have not exhausted their administrative remedies with respect to the grievances alleged in the second claim, but defendant declines to make an issue of this saying: `If there is any substance with respect to the allegations in the second cause of action, we are not disposed to suggest that because these plaintiffs did not proceed to exhaust their remedies and to proceed to final determination, they would not have standing to sue. See, Joint Anti-Facist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. On the other hand, however, if it be shown by the defendant that there is no merit to the allegations of the complaint and that those applications which have resulted in final orders were decided on their merits without regard to the applicant's manner of entry into the United States, then those plaintiffs who have not reached the final administrative stage have no cause for complaint and the balance of the plaintiffs in whose cases final orders have entered must be denied relief as a matter of law.'

that an officer of the Immigration and Naturalization Service conducted an examination of each applicant and filed a `Memorandum and Recommendation of Special Inquiry Officer'. In all but one of the cases which have been acted upon by the Regional Commissioner of the Immigration and Naturalization Service, the Special Inquiry Officer wrote out findings and conclusions and recommended denial of the application, and the Regional Commissioner stated that `upon consideration of the entire record' the application was denied. In the one remaining case, that of Giovanni Stroligo, the Special Inquiry Officer recommended granting the application, but the Regional Commissioner ordered denial and detailed his reasons for so doing. The contents of these records have a clear tendency to show that the applications were determined on the merits. Each applicant's claim of physical persecution was thoroughly discussed and evaluated by the Special Inquiry Officer in his statement of findings and conclusions and also by the Regional Commissioner in the case of Giovanni Stroligo. The fact that the applicant was a crewman was mentioned in each `Memorandum' but there is not the slightest indication that the applicant was discriminated against because of that fact. A shadowy inference that the Special Inquiry Officer who prepared the `Memorandum' in the case of Ante Spaleta was perhaps influenced in his decision by the manner in which Spaleta had entered the United States might be drawn from the statement in his `Memorandum' that Spaleta had `entered the United States in deliberate evasion of the immigration laws of the United States'. Whatever this inference is worth, however, it would go only to the question of whether the legality of his entry was considered and would not be probative of the claim that his application was denied because of his occupation as a crewman."

The eleven plaintiffs who had their applications for stays denied suffered these denials during 1958. On October 21, 1956, J. M. Swing, the Commissioner of Immigration, issued an order deferring final action on the application for a stay of the deportation of one John Martinovich, a Yugoslav native and citizen, as well as on the applications and deportations of all other Yugoslav nationals who were found to be in circumstances similar to those of Martinovich. This had the effect of a stay of deportation as well. The purpose of this deferral of action was to allow the collection of reliable information concerning possible persecution on the part of the Yugoslav Government. Martinovich's circumstances were described as follows:

"Applicant asserts that as a Roman Catholic layman and as one who is personally opposed to Communism on political grounds and has never shown any sympathy for the Tito regime, he would be exposed to harsh treatment by the Communist authorities in Yugoslavia. Applicant admits, however, that no members of his family in Yugoslavia have been persecuted by the regime and that he has never actively or openly opposed Communism or the Tito regime."

Several of the plaintiffs had final action deferred on their applications pursuant to the Martinovich decision. On February 1, 1958, the Commissioner of Immigration withdrew the Martinovich order, and the results of the inquiry into the situation in Yugoslavia were set forth in The Matter of Kale, decided on April 23, 1958, by the Assistant Commissioner of the Enforcement Division. The Kale decision stated in part:

"Discussion: While specifically disavowing that the responsibility or burden of proof in an application for stay of deportation based on physical persecution under Section

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