Jimenez v. Barber
| Decision Date | 30 January 1958 |
| Docket Number | Misc. No. 716. |
| Citation | 252 F.2d 550 |
| Parties | Martin JIMENEZ, Appellant, v. Bruce BARBER, District Director of the Immigration and Naturalization Service for the Thirteenth Immigration District, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lloyd E. McMurray, San Francisco, Cal., for appellant.
Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before POPE, FEE, and HAMLEY, Circuit Judges.
On May 29, 1951, Martin Jimenez, a citizen of Mexico, was arrested by officers of the Immigration and Naturalization Service of the Department of Justice upon a warrant issued on January 2, 1940. In the warrant, it was charged that Jimenez was in the United States in violation of the Immigration Act of 1924, in that at the time of entry in 1928 he was not in possession of an unexpired immigration visa. Thereafter, hearings were held on the warrant charge.
During the course of these hearings, Jimenez applied for suspension of deportation under the provisions of 8 U.S. C.A. § 155 (now 8 U.S.C.A. § 1254). A hearing was had on this application, during which Jimenez refused to answer questions about his membership in or affiliation with certain organizations, including but not limited to the Communist Political Association and the Communist Party. These questions pertained not only to the five-year period immediately prior to the application, but to years prior thereto.
On August 14, 1952, the hearing officer recommended that Jimenez be deported, and that his application for suspension of deportation be denied. From this recommended decision, plaintiff appealed to the Board of Immigration Appeals. His appeal to the Board was denied on March 9, 1954. Jimenez was then taken into custody for purposes of deportation. He filed a petition in the district court for a writ of habeas corpus, naming as defendant Bruce Barber, District Director of the Immigration and Naturalization Service for the Thirteenth Immigration District. The petition was denied. Jimenez then appealed to this court (No. 14477).
On February 16, 1955, while this appeal was pending, Jimenez abandoned his former position of refusal to answer all questions regarding his membership in or affiliation with organizations, and requested the Board to reopen his case. He offered, if the case was so reopened, to testify regarding his membership in or affiliation with organizations for the five-year period during which, under the provisions of 8 U.S.C.A. § 155, he was required to establish good moral character. Implicit in this conditioned offer was his continued refusal to answer questions concerning his memberships, associations, and beliefs before the five-year period.
The application to reopen the case was denied by the Board on March 22, 1955, on the ground that Jimenez had failed to establish his eligibility for suspension of deportation. On March 31, 1955, Jimenez filed, in connection with the appeal then pending in this court, a motion to augment the record by adding matters pertaining to his change of position before the Board. Appellee responded with a motion to dismiss the appeal as moot. Both motions were denied on April 27, 1955.
On May 23, 1955, and while his appeal from the order denying his petition for a writ of habeas corpus was still pending in this court, Jimenez instituted another suit in the district court, for the purpose of forestalling his deportation. In this action, which again named Barber as defendant, Jimenez sought injunctive and declaratory relief. He conceded that there was a lawful basis for his deportation, but contended that the Board had improperly disposed of his application for suspension of deportation. He also contended that the Board had acted arbitrarily in denying his request for reconsideration of the application. On June 1, 1955, while this new proceeding was pending before the district court, the appeal then pending here in the habeas corpus proceeding was dismissed by agreement of the parties.
On August 29, 1955, the district court, acting upon the motion of Barber, dismissed the action for injunctive and declaratory relief. Jimenez again appealed to this court. Pending this appeal, he obtained an order from this court staying his deportation until further order of this court. Jimenez v. Barber, 9 Cir., 226 F.2d 449. We thereafter affirmed the judgment dismissing the action. Jimenez v. Barber, 9 Cir., 235 F.2d 922, certiorari denied 78 S.Ct. 327.
On January 13, 1958, Barber notified Jimenez that he must surrender for deportation on January 21, 1958. Jimenez thereupon filed with Barber, for transmission to the Board of Immigration Appeals, a motion to reopen appellant's case and for a stay of execution. In a supporting affidavit, he alleged that he would now answer the questions which he had theretofore refused to answer, and would answer any similar questions relating to the whole period of his stay in the United States. He further alleged in this affidavit that he would deny membership in the Communist Party and the Communist Political Association; and that he would establish that the Board was in error in its ruling on the status of appellant's wife during a premarital period of cohabitation.
At the time of filing with Barber this motion to reopen his case, Jimenez asked Barber for an interim stay of execution of the deportation order pending a ruling by the Board of Immigration Appeals. On January 20, 1958, Barber denied the request for an interim stay of execution.
Later the same day, Jimenez filed the instant action in the district court, seeking an injunction, both preliminary and permanent, and a temporary restraining order prohibiting his deportation until a reasonable time after the decision of the Board on his motion to reopen his case. It is alleged in the complaint that Barber's action in denying an interim stay was arbitrary, capricious, "and designed to punish plaintiff for his temerity in testing by litigation" the interpretation of the deportation statute...
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