Ferraiola v. Murff

• Decision Date: 15 January 1958
• Parties: Pietro FERRAIOLA, Plaintiff, v. John L. MURFF, as District Director for the New York District, Immigration and Naturalization Service, United States Department of Justice, Defendant.
• Court: U.S. District Court — Southern District of New York

157 F. Supp. 611

Pietro FERRAIOLA, Plaintiff, v. John L. MURFF, as District Director for the New York District, Immigration and Naturalization Service, United States Department of Justice, Defendant.

United States District Court S. D. New York.

January 15, 1958.

Gerard E. Molony, Brooklyn, N. Y., for plaintiff.

Paul W. Williams, U. S. Atty., Southern Dist. of New York, New York City, for defendant.

EDELSTEIN, District Judge.

In an action under § 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009, plaintiff seeks to enjoin the defendant from executing an order and warrant for his deportation, and further prays that a judgment be made declaring an outstanding order and warrant for his deportation null and void. He moved for a preliminary injunction, and the defendant cross-moved for summary judgment. To the latter motion the plaintiff also cross-moved for summary judgment.

In 1949 the plaintiff was legally admitted into the United States as a seaman for a temporary period of shore leave not to exceed 29 days, but he overstayed his leave. In 1951 a warrant for his deportation was issued after the conclusion of deportation proceedings that have not been challenged. But in 1955 he married a native citizen of the United States, and his wife filed a petition on his behalf for a nonquota immigrant visa under § 205 (b) of the Immigration and Nationality Act, 1952, 8 U.S.C. § 1155(b), 8 U.S. C.A. § 1155(b), which was approved. Subsequently, the Board of Immigration Appeals withdrew the outstanding order of deportation and granted plaintiff's motion to reopen the proceedings to enable him to apply for the discretionary relief of voluntary departure, in lieu of deportation, and preexamination.

Within a year of the marriage, marital difficulties ensued and plaintiff and his wife ceased living together. In 1956, after receiving a communication including a statement by plaintiff's wife that she desired to withdraw the visa petition she had submitted on behalf of her husband, the Special Inquiry Officer entered an order withdrawing the previously granted relief of voluntary departure and preexamination, and reopening the proceedings for the purpose of receiving additional evidence bearing upon plaintiff's eligibility for the relief he sought. In his decision after the reopened hearing, the Special Inquiry Officer determined that the written withdrawal by the wife of her petition for a visa on behalf of the plaintiff served automatically to revoke the approval of that petition; he granted voluntary departure but denied the application for preexamination on...