Kelch v. Kennedy

• Decision Date: 09 October 1962
• Docket Number: Civ. A. No. 13884.
• Citation: 209 F. Supp. 416
• Parties: Kalliope KELCH v. Robert F. KENNEDY, Attorney General of the United States.
• Court: U.S. District Court — District of Maryland

209 F. Supp. 416

Kalliope KELCH v. Robert F. KENNEDY, Attorney General of the United States.

Civ. A. No. 13884.

United States District Court D. Maryland, Civil Division.

October 9, 1962.

Konstantine J. Prevas, Baltimore, Md., for plaintiff.

Jos. D. Tydings, U. S. Atty., Arthur G. Murphy, Asst. U. S. Atty., Baltimore, Md., for defendant.

CHESNUT, District Judge.

This case has arisen in the administration of the Immigration and Naturalization Service of the United States. The plaintiff, an alien, has filed a complaint asking for an injunction against her deportation for overstaying the time permitted to her to remain in this country as a visitor, and for a declaratory judgment to the effect that the refusal of the Local Director of Immigration to extend the time for her voluntary departure is void as arbitrary and capricious. The Government has filed a motion to dismiss the case on the ground that as a result of the course of the proceedings in the Administrative Office, this District Court of the United States does not have jurisdiction because under the facts stated the sole and exclusive jurisdiction in the case has been vested in the United States Court of Appeals by the provision of the Congressional Act effective October 26, 1961, now codified as 8 U.S.C.A. § 1105a.

Counsel for the parties have agreed upon a stipulation of facts regarding the case which, in chronological order, are:

The United States of America by Joseph D. Tydings, United States Attorney, and Arthur G. Murphy, Assistant United States Attorney, for the District of Maryland, attorneys for the Defendant, and Konstantine J. Prevas, attorney for Plaintiff, stipulate as to the following facts and sequence of events in the above-entitled case. It is stipulated and agreed that the issue on proper joinder of parties and service of process is hereby waived and that the following facts exist:

"1. That Kalliope Kelch, an alien and native of Greece, entered the United States from Greece on November 5, 1961, with her children, Stellianos Floropoulos, age 16, and Constantinia Floropoulos, age 13, as a non-immigrant visitor at New York City to visit her daughter, Maria F. Harmandas in Washington, D. C., with permission to remain until January 5, 1962. Further extension could be granted.

"2. After twenty days she came to Baltimore to visit her cousins, Aristidis and Cathernine Bouloumbassis and on December 23, 1961 she married Harry Kelch, a citizen of Maryland.

"3. On February 8, 1962, Harry Kelch complained to immigration officials that he had married Kalliope Kelch in consideration for a promise that he would be paid $7,000, $1,000 to be paid at the time of marriage and $1,000 a month for six months; he was to live with her for three days after which time she would return to live with her cousin and after five years an annulment would be obtained at the expense of other parties. The alien denied these allegations at the hearing.

"4. On February 9, 1962, the immigration office at Baltimore, Maryland, applied for an Order to Show Cause why the alien should not be deported for having overstayed the time authorized.

"5. On February 16, 1962, notice was sent to the alien that a hearing would be held at the immigration office in Baltimore on March 27, 1962, at 11:00 A.M.

"6. On March 20, 1962, Attorney Avgerin of Chicago, Illinois, entered his appearance on behalf of Mrs. Kelch in the deportation hearing, after which she was notified that the hearing was postponed to April 25, 1962.

"7. On April 25, 1962, Order to Show Cause and Notice of Hearing was issued by the District Director to the alien to appear on this date to show cause why she should not be deported from the United States because she had remained longer than January 5, 1962, without authority.

"8. On April 25, 1962, a hearing was held before Daniel J. Schrull, Special Inquiry Officer, Immigration and Naturalization Service, at Baltimore, Maryland, at which time the alien admitted that she was deportable and she was granted voluntary departure in lieu of deportation at such time to be set by the District Director. A portion of the order stated that if she did not leave within the time set by the District Director, voluntary departure would be withdrawn without further notice or proceedings and the order of deportation would become effective immediately. Mrs. Kelch waived any appeal from that decision.

"9. On April 26, 1962, a Bill of Complaint for Annulment was filed by George C. Evering, Esq., on behalf of Harry Kelch (Case No. B86054, Docket 102B Folio 202, Circuit Court of Baltimore City).

"10. On April 30, 1962, the District Director by letter gave Mrs. Kelch until May 30, 1962, to voluntarily depart, with copy to her attorney of record.

"11. On May 22, 1962, Mr. Prevas entered his appearance on behalf of Mrs. Kelch and, by letter of same date, requested extension of time within which to effect voluntary departure, reading as follows:

"`Immigration and Naturalization Service "`707 N. Calvert Street "`Baltimore 2, Maryland "`Re: Extension of Voluntary Departure "`Kalliope Kelch A12 148 830 "`Stellianos Floropoulou A12 148 741

"`Gentlemen:

"`On behalf of the above named, request is hereby made for extension of time within which to effect voluntary departure.

"`Mrs. Kelch has been sued by her husband for an annulment of their marriage, and these proceedings are pending in the Circuit Court of Baltimore City, case number 86054. I have been retained by Mrs. Kelch to defend this action, and I have this day filed an answer to the suit. We are denying the allegations upon which the suit is based, and are asking for a full hearing before a Chancellor in Equity.

"`It is clearly evident that Mrs. Kelch has at stake certain valuable marital rights in the action pending against her. It is requested that your service cooperate in this matter so that this woman may have her day in court. It would be impossible to defend this action without her presence and without the presence of her son Stellianos Floropoulou, who is a witness to the cohabitation of the parties to the suit.

"`I also enclose herewith form G-28 for each of the above cases.

"`Yours truly "`Konstantine J. Prevas

"`Enclosures

"`P.S. Duplicate copy also enclosed for use in file A12 148 741'

"12. On May 23, 1962, an Answer and Cross-Bill of Complaint was filed on behalf of Mrs. Kelch by Mr. Prevas to the Bill of Complaint for Annulment; on May 24, 1962, an Order Directing Payment of Counsel Fees and Alimony Pendente Lite was signed by the Circuit Court unless cause to the contrary were shown on or before June 8, 1962.

"13. On May 28, 1962, Mrs. Kelch wrote to the immigration service indicating employment of new counsel, with copy to Mr. Avgerin.

"14. On May 29, 1962, Mr. G. A. McKinnon, Deputy District Director, Immigration and Naturalization Service, Baltimore, Maryland, by telephone, notified Mr. Prevas that the request for extension was denied and on the same date an Answer on behalf of Mr. Kelch to the Cross-Bill of Complaint was filed.

"15. On May 31, 1962, notice was sent to Mrs. Kelch advising her that she was supposed to have notified the immigration office on or before May 21, 1962, of her arrangements for departure and further that the request of Mr. Prevas for an extension of time within which to voluntarily depart was being denied and a warrant of deportation was being issued on the same date. Voluntary departure was withdrawn; Mrs. Kelch was ordered deported and warrant of deportation was issued on the same day.

"16. On June 5, 1962, a motion to take testimony in open court in the annulment proceedings was filed by the alien.

"17. On June 13, 1962, the plaintiff in the annulment proceedings issued summonses for witnesses and on June 15, 1962, he filed an Answer to the Order providing for payment of counsel fees and alimony pendente lite. (Order Nisi).

"18. On June 18, 1962, complaint for Declaratory Judgement and prayer for injunction was filed by Mrs. Kelch, in the District Court of Maryland.

"19. On June 20, 1962, motion of Defendant, United States Government, to dismiss the complaint was filed.

"20. On June 27, 1962, the Plaintiff filed a request for hearing on the motion of the Government.

"21. On August 1, 1962, application number 9338 for marriage of Mrs. Kelch and John Gianaros was made in the Court of Common Pleas of Baltimore City and the parties were married in Baltimore City on August 3, 1962.

"22. On September 13, 1962, the appearance of John de Kowzan, an associate of Mr. Prevas, was filed in the annulment proceedings as co-counsel for Mrs. Kelch and the file referred to Paul Rome, Esq., Equity Examiner, to take testimony in the annulment proceedings."

The 1961 Act prescribes that immigration and deportation proceedings against an alien shall be in accordance with §§ 1031-1042 inclusive, of title 5 U.S.C.A. relating to appeals affecting final orders of determination of certain prescribed agencies of the United States. The principal purpose for the amending statute of 1961 is very fully and conclusively set out in the Committee Report to be found in House Report 1086, 87th Cong. 1st Sess. U.S. Code & Congressional Administrative News, 1961, Vol. 2, beginning at page 2950 but more specifically pp. 2966-2974. See particularly pp. 2968-2969, including a copy of a letter from the then Deputy Attorney General, Mr. Byron White, to the Honorable Emanuel Cellar, Chairman of the House Judiciary Committee, reviewing prior decisions of the Supreme Court including Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).

Counsel for the alien concedes that there was an order of deportation and that the order also permitted voluntary departure specifying the ultimate date for voluntary departure as being May 30, 1962. However, he contends that the order should not be considered as a final order by reason of a request for extension of time for voluntary departure which was...