Estrada v. Ahrens

• Decision Date: 30 November 1961
• Docket Number: No. 18633.,18633.
• Citation: 296 F.2d 690
• Parties: Pedro ESTRADA, Alicia Perez De Estrada, his wife, Alicia Ybara and Maria Luisa Ybara, his minor children, Appellants, v. Edward P. AHRENS, District Director United States Immigration & Naturalization Service, Miami, Florida, as Agent for William Rogers, Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F.2d 690 (1961)

Pedro ESTRADA, Alicia Perez De Estrada, his wife, Alicia Ybara and Maria Luisa Ybara, his minor children, Appellants, v. Edward P. AHRENS, District Director United States Immigration & Naturalization Service, Miami, Florida, as Agent for William Rogers, Attorney General of the United States, Appellee.

No. 18633.

United States Court of Appeals Fifth Circuit.

November 30, 1961.

David W. Walters, Miami, Fla., for appellants.

Lavinia L. Redd, Asst. U. S. Atty., Miami, Fla., Douglas P. Lillis, U. S. Immigration Service, Richmond, Va., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.

Before RIVES, BROWN, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

Pedro Estrada, his wife, and his wife's two children, relying on the Administrative Procedure Act, 5 U.S. C.A. § 1001 et seq., seek judicial review of their exclusion from this country by the Immigration and Naturalization Service. They ask for a mandatory injunction compelling the defendant, Edward P. Ahrens, District Director of the Service at Miami, Florida, to fulfill the requirements of his office, as provided in 8 U.S.C.A. § 1225(b) and § 1226,¹ by admitting the plaintiffs into the United States for permanent residence or by referring their applications for admission to a special inquiry officer for proceedings consistent with 8 U.S.C.A. § 1226. They ask also that the Court issue a temporary restraining order prohibiting "the defense" from interfering with the plaintiffs' proceeding to the United States for the purpose of appearing before the Court; and that the Court prohibit "the defendant" from imposing a fine against any carrier bringing the plaintiffs to the United States without their now having visas in their physical possession. The district court dismissed the complaint for lack of jurisdiction. On appeal, the District Director makes two serious contentions: (1) that the plaintiffs lack legal standing because they are nonresident aliens absent from the country; (2) that the complaint fails to join as an indispensable party either the Attorney General or the Commissioner of the Immigration and Naturalization Service. He argues also that the complaint fails to state a claim upon which relief may be granted, an argument we find unnecessary to discuss except in a footnote.² We reject these contentions:

the plaintiffs are entitled to judicial review of the administrative action by which they are aggrieved. We limit the relief granted, however, because of the absence of the Commissioner from the suit.

Pedro Estrada was the Chief of Police of Venezuela during the regime of General Marcos Pérez Jiménez, usually described in the American press as a dictator. In January 1958 Jiménez and a number of his supporters fled from Venezuela. Estrada and his family arrived in Miami March 7, 1958, from the Dominican Republic with immigrant non-quota visas valid for four months for entry into the United States. Estrada's arrival raised a question whether his admission to the United States might be prejudicial to the interests of the country, and when the plaintiffs presented their visas the Immigration Inspector at Miami deferred the usual inspection in order to allow the Service time to conduct an investigation. The Estradas were admitted on parole for a period of thirty days. Estrada leased a house in Miami, paid six months rent in advance, entered his children in school, and made arrangements with a doctor for medical care for his wife who was expecting a child in May. Early in April Estrada called on Joseph Savoretti, then District Director at Miami, to ask if any decision had been reached in his case. He informed Savoretti that his wife was pregnant. He said also that he preferred to live permanently in Washington, D. C. After Savoretti cleared with his superiors, Estrada was given an additional parole period of thirty days and told that there was no objection to his going to Washington. Later in April the parole period was extended still another thirty days to June 6, 1958.

Saturday, May 18, 1958, allegedly for urgent business reasons, Estrada left for Switzerland intending to spend only a few days and to return to this country as soon as he completed his business. He did not consult the Immigration Service or acquire a permit of re-entry. In a deposition taken April 19, 1960, Estrada says that at no time had anyone informed him that there were any restrictions on his freedom of movement. Savoretti testified that he had an oral understanding that Estrada would keep him informed of his whereabouts. May 21 Savoretti, who was able to identify Estrada's voice, telephoned Estrada in Switzerland, informed him that he should have requested permission before leaving, and told him that he could not return without first securing an immigrant visa. Estrada said that he had left on a Saturday and had not wanted to disturb Savoretti at home, but he had intended letting him know about his trip. The next day General Swing, Commissioner of the Immigration and Naturalization Service, notified all sea and air transportation companies that if any carrier brought Estrada to this country without his having an immigrant visa it would be subject to a fine of a thousand dollars and other penalties under Section 273 of the Immigration and Nationality Act, 8 U.S.C.A. § 1323. On the same day, in Miami Beach, Estrada's wife gave birth to a daughter, who became a United States citizen. According to Estrada, from the moment he left the United States his wife was questioned by immigration officers, personally and by telephone, at home and at the hospital on the day of the child's birth until her doctor protested against the questioning. June 10, 1958, against his protests, his wife and children joined him in Spain with the intention of their going back together to the United States. The plaintiffs allege that they made many inquiries and pleas to various United States embassies and to the Secretary of State to have their status clarified. They say that they have never abandoned or waived their applications for admission, and are still seeking to return to Miami and be admitted under their original visas.

I

A. In granting the defendant's motion to dismiss the action, the district court ruled that the "court does not have jurisdiction over the case by virtue of plaintiffs' absence from the United States at the time of the filing of the complaint and thereafter". Earlier, in denying a temporary restraining order, the district court found that "the record indicates by his action Estrada withdrew his application for admission". If the judgment of dismissal is based on a finding that Estrada withdrew his application, it is clearly erroneous. No evidence in the record supports this finding.

B. If the dismissal is based on the mere absence of the plaintiffs, it is erroneous for that reason. Except in cases involving an unwilling litigant, when a court's authority over persons and things within its territory gives it power to impose judgment, the immediate, physical presence or absence of parties to a suit is not a necessary precedent to the court's jurisdiction to decide the suit. The Estradas are not defendants refusing to submit to jurisdiction and against whom a valid personal judgment could not be entered; they are plaintiffs invoking the jurisdiction of the court. The requirement of jurisdiction is satisfied by a nonresident's consent to the court's exercise of jurisdiction. Here, the act of the plaintiffs in bringing suit automatically establishes consent to jurisdiction. Adam v. Saenger, 1938, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649; Restatement, Conflict of Laws §§ 81, 83; Leflar, Conflict of Laws § 29 (1959).

C. On appeal, the district director argues that as nonresident aliens absent from the country the Estradas have no legal standing to bring this action. He contends that the plaintiffs' case is predicated solely on the Administrative Procedure Act, and that the Act does not authorize actions by aliens who are not physically present within the United States. We would state the issue in terms of the right to judicial review: Under the Administrative Procedure Act and on the facts this case presents, are nonresident aliens, not now physically present in the United States, entitled to judicial review of administrative action by which they are aggrieved?

Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009(a), provides: "Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." The Act says "any person". It does not say "any citizen". It does not say "any person physically present in United States", as the District Director would have it say. The emphasis is on the breadth of coverage; there is judicial review unless a pertinent statute precludes it or the action questioned is a matter of agency discretion.

In Johnson v. Eisentrager, 1950, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255, on which the appellee relies, enemy aliens in Germany were denied writs of habeas corpus. Traditionally, until the enactment of the Immigration Act of 1952 and the Administrative Procedure Act of 1946, immigration orders were reviewable only on petition for writ of habeas corpus. In such proceedings the physical presence of the petitioner is meaningful. The essence of habeas corpus is the inquiry as to the physical detention of the individual and the delivery of his body into the hands of the courts. But in a proceeding questioning the validity of administrative action there is no necessary reason to produce the plaintiff in person in court. In Kokoris v. Johnson, 4 Cir., 1952, 195 F.2d 518, 519, five foreign seamen brought a declaratory action under the Administrative Procedure Act for review of agency action and for injunctive relief. The Court had this to say: "It should be noted in this connection that we...