Kavadias v. Cross, Civ. No. 904.

• Decision Date: 03 November 1948
• Docket Number: Civ. No. 904.
• Citation: 82 F. Supp. 716
• Parties: KAVADIAS v. CROSS.
• Court: U.S. District Court — Northern District of Indiana

82 F. Supp. 716

KAVADIAS v. CROSS.

Civ. No. 904.

United States District Court N. D. Indiana, Hammond Division.

November 3, 1948.

Edmond Leeney, of Hammond, Ind., for petitioner.

Alexander M. Campbell, U. S. Atty. Northern Dist. of Indiana, of Fort Wayne, Ind., for respondent.

SWYGERT, District Judge.

The petitioner is an alien, born in Greece on October 23, 1914, and always a citizen of that country. He arrived at Montreal, Canada, in 1940 as a seaman. There he deserted his ship and was smuggled into the United States at some point on the Canadian border. His entry into the United States was illegal, in that he did not have an immigration visa entitling him to enter this country.

On July 12, 1941, a deportation proceeding was commenced against the petitioner by the issuance of a warrant for his arrest, the warrant having been signed by an authorized representative of the Immigration and Naturalization Service. On August 30, 1941, a hearing was had before an Immigration Service Inspector. On July 3, 1942, the Board of Immigration Appeals adopted the findings and recommendations of the Inspector and ordered the petitioner be deported to Canada. Canada refused to accept him, and because of the war conditions in Greece, the deportation order was held in abeyance.

On November 5, 1942, the Board of Immigration Appeals amended the order by providing that the petitioner be deported to Wales. Throughout the proceeding the petitioner was not in actual custody of the Immigration authorities, since he had been released upon his own recognizance.

The petitioner was inducted into the military service of the United States on March 5, 1943. He was honorably discharged from the Army on June 25, 1943, "for convenience of the Government to join the Armed forces of Greece." He was supposed to join the Greek Navy in New York. However, he failed to do so and now states that the reason he did not was because Greek sailors told him that Greeks were fighting each other in Egypt and he did not wish to fight his own countrymen.

A further hearing was conducted in petitioner's deportation proceeding on July 19, 1945. The Immigration Service Inspector thereafter recommended that the petitioner be deported to Greece. This recommendation was acted upon by the Board of Immigration Appeals on October 17, 1945, and, at the petitioner's request, it was ordered that he be permitted to depart voluntarily from the United States at his own expense. This order provided also that the warrant of deportation be withdrawn. The petitioner failed to depart from the country voluntarily, but he did leave the Pittsburgh area where he had been living. On November 5, 1946, the Board of Immigration Appeals reinstated the warrant of deportation. The new warrant was issued on December 3, 1946. The Immigration Service officials lost track of the petitioner from the time he left Pittsburgh until October 13, 1947, when he was apprehended. He was taken to the Hammond, Indiana, office of the Immigration and Naturalization Service and revealed that he had been married a few days before to a citizen of the United States. A further investigation was conducted by an Immigration Service Inspector and thereafter the petitioner filed a motion with the Board of Immigration Appeals to "reopen and to reconsider" the deportation order so as to permit him to show that his deportation would result in "serious economic detriment to his wife." In ruling on this motion, the Board of Immigration Appeals restated the pertinent facts and then said: "This record makes it clear that respondent has not cooperated with the immigration authorities. His conduct indicates that he deliberately absconded in 1945 in order to prevent his deportation to Greece. He revealed his whereabouts only when he married an American citizen and thought that he could obtain discretionary relief. We do not think that his is a deserving case. We shall deny his motion."

Subsequently, the petitioner asked the Board of Immigration Appeals to reconsider this decision, but his request was denied. On March 24, 1948, the petitioner was taken into custody by the Immigration Service officials pending his removal to Greece. On the same day, this habeas corpus proceeding was instituted. An order was entered for the respondent to show cause why a writ should not issue. When the show cause order came on for hearing, evidence was submitted by both the petitioner and the respondent. The foregoing statement of facts is a resumé of that evidence. During the pendency of this proceeding, the petitioner was released from the custody of the Immigration officials after he had posted a $2,000 bond. The petitioner on June 12, 1948, filed an application with the Naturalization Service for leave to petition for naturalization.

The petitioner grounds his claim to the issuance of a writ of habeas corpus and a discharge from the custody of the respondent upon two propositions.

First, he contends that after his marriage on October 2, 1947, he became entitled to request suspension of his deportation under the provisions of Title 8 U.S.C.A. § 155(c). He alleges that, although the decision to suspend the deportation is within the discretion of the Attorney General or his delegated representative, such discretion must not be exercised arbitrarily. It is his position that a refusal of the Board of Immigration Appeals to afford him a hearing on the issue of the economic detriment which may result to his wife from his deportation is arbitrary and contrary to the law.

Secondly, petitioner says that he is an honorably discharged veteran of World War II and eligible for citizenship under Public Law 567, 80th Congress, 2d Session, dated June 1, 1948, 8 U.S.C.A. § 724a. It is his contention that his deportation now would be inconsistent with the express wishes of Congress to qualify such alien veterans for naturalization.

As to the petitioner's first contention, it should be pointed out that the administrative regulations governing deportation proceedings provide that during the deportation hearing the Immigration Service Inspector shall advise the alien of his right to apply for suspension of deportation under Section 155(c). Title 8, Code of Federal Regulation, § 150.6 If such application is made, the inspector is required to take evidence on this question and then, after stating his conclusions of law, to submit a proposed order in regard to suspension of the deportation "in accordance with the judgment he has made on the basis of the evidence adduced at the hearing." This power of the Attorney General or his delegate, the Immigration and Naturalization Service, to suspend a deportation order is discretionary. See United States ex rel. Salvetti v. Reimer, 2 Cir., 1939, 103 F.2d 777; Ex parte Panagopoulos, D.C.S.D.Cal.19...