Fassilis v. Esperdy
Decision Date | 02 March 1961 |
Citation | 192 F. Supp. 84 |
Parties | Demetrios FASSILIS, Plaintiff, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Defendant. |
Court | U.S. District Court — Southern District of New York |
Fried & Mailman, New York City, for plaintiff; Elmer Fried, New York City, of counsel.
Morton S. Robson, U. S. Atty. for the Southern District of New York, New York City, for defendant; Roy Babitt, Special Asst. U. S. Atty., New York City, of counsel.
This is a motion, in behalf of the defendant, for summary judgment under Rule 56 of the Rules of Civil Procedure, 28 U.S.C., on the ground that there is no genuine issue as to any material fact. Defendant also moves, under Rule 30(b) of the Rules of Civil Procedure, to vacate the plaintiff's notice to take the deposition of the defendant.
This action was commenced on October 24, 1960, under Section 10 of the Administrative Procedure Act (5 U.S.C.A. § 1009) and Section 279 of the Immigration and Nationality Act (8 U.S.C.A. § 1329), to review the decision of the Attorney General denying the plaintiff's application under Section 245 of the Immigration and Nationality Act (8 U.S.C.A. § 1255) for an adjustment of his immigration status to that of an alien lawfully admitted to the United States for permanent residence. The plaintiff seeks a judgment under the Declaratory Judgments Act (28 U.S.C. § 2201) declaring the Attorney General's decision to be invalid.
It appears from the papers submitted on the motion that the following material facts exist without substantial controversy:
1. The plaintiff is an alien, a native and citizen of Greece.
2. The plaintiff last entered the United States on or about January 29, 1960 as a crewman.
3. On February 15, 1960 the plaintiff filed with the Immigration Service an application under Section 245 of the Immigration and Nationality Act (8 U.S. C.A § 1255) for adjustment of his immigration status to that of an alien lawfully admitted to the United States for permanent residence.
4. On March 29, 1960 plaintiff was interrogated by a Special Inquiry Officer of the Immigration and Naturalization Service.
5. Plaintiff was shown the record of his statements of March 29, 1960 before the Special Inquiry Officer and stated, under oath, that all of the statements made were true and correct.
6. On June 2, 1960 the defendant denied plaintiff's application for an adjustment of his status under Section 245 of the Immigration and Nationality Act on the ground that he was not eligible for such relief, being a crewman who was not a bona fide non-immigrant and not such a case as to warrant favorable discretionary action as provided by Section 245 of the act.
7. On February 15, 1960 and on June 2, 1960, Section 245(a) of the Immigration and Nationality Act (72 Stat. 699, Act Aug. 21, 1958) provided:
8. On August 23, 1960 the Regional Commissioner, Northeast Region, of the Immigration and Naturalization Service, the Attorney General's delegate, affirmed the defendant's decision denying plaintiff's application for adjustment of status under Section 245 of the Immigration and Nationality Act, on the discretionary authority granted to him under the act. No dispute exists as to the lawful delegation of the powers of the Attorney General to the District Director and the Regional Commissioner of the Immigration and Naturalization Service.
Plaintiff stated, at an examination conducted by an Immigration Officer, that five days after he landed in New York he married an American citizen. He testified that he met his wife in 1958 and saw her when his ship was in the United States. He indicated that he was desirous of giving up his work as a seaman.
An inspection of the record reveals that the District Director denied plaintiff's petition, finding that he was not a bona fide non-immigrant as required by the statute and by virtue of the discretionary authority granted to him by Section 245(a). The Regional Commissioner affirmed this determination on August 23, 1960, stating:
The plaintiff alleges in his complaint that the decision is "arbitrary and capricious" and represents an "abuse of discretion." Plaintiff also objects to the procedures followed by the Service. The Court finds no support in the record for either of these contentions. Where, as here, the statute granted to the Attorney General discretionary power in passing on these petitions, a reviewing court is severely limited in its examination of the exercise of that discretion.
In the case of Rizzi v. Murff, D.C.S.D. N.Y., 171 F.Supp. 362, 367, Judge Bryan stated:
A more restrictive position is taken in one of the few cases dealing with Section 245. Judge Wortendyke of the District Court for the District of New Jersey, held that the exercise of discretion, here involved, was not judicially reviewable:
"The statutory language construed in the foregoing cases, as...
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Manarolakis v. Coomey
...Cir.), cert. denied, 389 U.S. 856, 88 S.Ct. 72, 19 L.Ed.2d 121 (1967); Fassilis v. Esperdy, 301 F.2d 429 (2nd Cir. 1962), aff'g 192 F.Supp. 84 (S.D.N.Y.1961). Even if relief in this case were not precluded by statute, this court would be bound, on the facts, to affirm the decision of the Bo......
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Fassilis v. Esperdy
...moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U. S.C.A. In an opinion reported at 192 F. Supp. 84 (S.D.N.Y.1961), the district judge granted the defendant's motion against Fassilis on two theories — first, that there was no abuse by the administrative ......
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...ineligible for relief. The Service in the instant case concedes that the respondent is statutorily eligible. The alien crewman in the Fassilis case,1 supra, applied for relief under section 245 prior to its amendment on July 14, 1960. The District Director on June 2, 1960 denied relief on b......