Gagliano v. Bernsen, 16393.

• Decision Date: 17 May 1957
• Docket Number: No. 16393.,16393.
• Citation: 243 F.2d 880
• Parties: Joseph GAGLIANO ex rel. Frank GAGLIANO, Appellant, v. Sam BERNSEN, Acting O.I.C., U.S.I.& N.S. New Orleans, Louisiana, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

243 F.2d 880 (1957)

Joseph GAGLIANO ex rel. Frank GAGLIANO, Appellant, v. Sam BERNSEN, Acting O.I.C., U.S.I.& N.S. New Orleans, Louisiana, Appellee.

No. 16393.

United States Court of Appeals Fifth Circuit.

May 17, 1957.

Dean A. Andrews, Jr., Gretna, La., for appellant.

Prim B. Smith, Jr., Asst. U. S. Atty., New Orleans, La., M. Hepburn Many, U. S. Atty., New Orleans, for appellee.

Before RIVES, JONES and JOHN R. BROWN, Circuit Judges.

JONES, Circuit Judge.

On January 3, 1956, a complaint was filed in the District Court for the Eastern District of Louisiana, by "Joseph Gagliano, through and on relation of his son, Frank Gagliano", instituting suit against Sam Bernsen, Acting Officer in Charge, United States Immigration and Naturalization Service at New Orleans, Louisiana. Joseph Gagliano, by judicial and administrative proceedings, had been successful in delaying deportation from the time a warrant of deportation was issued on February 4, 1954, until December 22, 1955. During December and prior to the twenty-second of that month action adverse to him was taken by the District Court for the Eastern District of Louisiana, the Court of Appeals for the District of Columbia, the Court of Appeals for the Fifth Circuit, the Supreme Court of the United States, and the Board of Immigration Appeals. The complaint was sworn to by Frank Gagliano who, in his jurat, avers that "he is the party bringing" the suit "for and on behalf of his father". In the complaint it was alleged that on December 22, 1955, there was pending on behalf of Joseph Gagliano, among other matters, a Motion for Stay of Deportation by reason of illness and a Motion for Stay of Deportation because of the threat of physical persecution if deported to Italy. Other matters then pending, as set forth in the complaint, need not be here recited. Frank Gagliano, the son, further alleged that the immigration officers called at the premises of Gagliano in New Orleans and took him to the U. S. Public Health Service Hospital in New Orleans where he was given a physical examination after which he was kept in custody and taken by plane to Miami, Florida, thence to New York City, and from there to Italy. The complaint charges that the "spiriting of the body of Gagliano out of this jurisdiction, is and was illegal", a violation of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq., the Regulations issued thereunder and particularly the due process provision of the Fifth Amendment to the Constitution of the United States.

The complaint requested the court to decide the following:

"1. Whether or not the USI&NS may deport an alien without first notifying the alien to prepare for deportation?

"2. Whether or not the USI&NS may deport an alien without calling upon his bondsman to surrender the alien at a time and place set by the USI&NS?

"3. Whether or not the USI&NS may deport an alien without first cancelling his enlargement under administrative bail and notifying the alien to report for deportation?

"4. Whether or not the USI&NS may deport an alien by taking him in physical custody under the pretext of giving the alien a physical examination?

"5. Whether or not the USI&NS may remove an alien from one jurisdiction to another to defeat judicial process?

"6. Whether or not prior to actual deportation is there a duty on the part of the USI&NS to notify alien as to the disposition of his administrative pleadings?

"7. Whether or not the USI&NS may notify an alien of denial of administrative motions when he is held incognito and his whereabouts are unknown to alien and counsel?

"8. Whether or not the USI&NS has the power to short circuit judicial proceedings by removing an alien from one administrative jurisdiction to another?

"9. Whether or not, under the facts of this deportation procedure, did the USI&NS deport Gagliano, in the manner pointed out by law?"

The prayer of the complaint was that under the "all writs" statutory provision, 28 U.S.C.A. § 1651, the court command "the defendant agency" to restore the status quo by returning Joseph Gagliano to his New Orleans residence, that it answer the questions propounded, and for such other relief as the cause may permit.

The prayer of the complaint was that United States District Attorney, moved to dismiss the complaint on several grounds, among them being (1) lack of jurisdiction over the subject matter, Joseph Gagliano having been deported before the action was brought; (2) the failure to join the Attorney General as a party, he being an indispensable party beyond the jurisdiction of the court, (3) the absence of any right of ...