Klapholz v. Esperdy

• Decision Date: 30 December 1961
• Parties: Samuel KLAPHOLZ (File No. A6 723 213), Plaintiff, v. P. A. ESPERDY, 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

201 F. Supp. 294

Samuel KLAPHOLZ (File No. A6 723 213), Plaintiff, v. P. A. ESPERDY, 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.

December 30, 1961.

Jackson G. Cook, New York City, for plaintiff.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, New York City, for defendant (Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel).

THOMAS F. MURPHY, District Judge.

In this alien's action for a declaratory judgment that he be admitted to the United States as a non-quota immigrant the government, before answer, moves for summary judgment. The principal facts are not in dispute.

Plaintiff, allegedly a native and citizen of Germany and possessed of a valid immigration visa, applied for admission to the United States upon his arrival at New York aboard the S.S. United States on July 30, 1956.¹

The Immigration Officer, finding plaintiff's name on a "Look Out" Book, telephoned the United States Attorney for the Eastern District of New York and in a short time the plaintiff was taken off the ship by a United States Marshal from the Eastern District of New York and lodged in the Federal House of Detention.² It would seem that at that time plaintiff knew there was the possibility of criminal charges being filed against him. He knew, too, that his brother and sister-in-law had been arrested two years before, on August 4, 1954, and that they had been indicted for conspiracy to smuggle diamonds into the United States.

On August 27, 1956, plaintiff was informed by the Immigration and Naturalization Service that he was paroled in the United States by the Service pursuant to § 212(d) (5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182 (d) (5), "pending completion of primary inspection."

In plaintiff's administrative file there appears the Form 1-122, dated August 2, 1956 (NOTICE TO ALIEN DETAINED FOR HEARING BY SPECIAL INQUIRY OFFICER) and a copy of a letter dated August 3, 1956, to the Warden of the Federal House of Detention requesting that the Form 1-122 be given to plaintiff. Plaintiff, however, claims that he did not receive this form but claims that the first time he received such a form was December 19, 1956.

On October 29, 1956, in the Eastern District of New York, plaintiff pleaded guilty to an information charging him with having violated §§ 2 and 545 of Title 18 U.S.C. in that he knowingly, wilfully and with intent to defraud the United States did cause, command and procure the smuggling and clandestine introduction into the United States at the New York International Airport on August 2, 1954, of certain merchandise which should have been invoiced, to wit, approximately 2149.56 carats of cut, polished diamonds having a domestic value of $243,810, which merchandise was subject to payment of duty of $24,381. On December 17, 1956, he was sentenced to 15 months imprisonment.

On January 23, 1957, at a hearing in exclusion proceedings held at the Federal Correctional Institute at Danbury, Connecticut, the plaintiff was found to be excludable under § 212(a) (9) of the Immigration and Nationality Act (8 U.S. C.A. § 1182(a) (9)) as an alien who had been convicted prior to admission of a crime involving moral turpitude. Thereafter, plaintiff successfully appealed to the Board of Immigration Appeals but the Attorney General, on review of that decision, reinstated the decision of the Special Inquiry Officer denying his admission and excluding him.

A preliminary question must first be resolved. Plaintiff brings this action under the Administrative Procedure Act, 5 U.S.C.A. § 1009. However, the Act of September 26, 1961, 75 Stat. 650, 653, Public Law 87-301, became effective 30 days after its approval and amended 8 U.S.C.A. § 1101 by adding § 1252(b) which provides, "Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under the provisions of section 236 of this Act (8 U.S.C. § 1226) or comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise."

The instant motion for summary judgment was heard prior to the passing and the effective date of the amendment. However, the Act further provides, "Any judicial proceeding to review an order of exclusion which is pending unheard on the effective date of this section shall be expedited in the same manner as is required in habeas corpus." Since there is no difference in the substantive law to be applied to exclusion cases when the declaratory judgment procedure rather than habeas corpus is employed (Brownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956)), we will not consider the change in nomenclature.

Plaintiff's first claim is that he was admitted to permanent residence in the United States on July 30, 1956, and therefore he may not be excluded. His argument is that he left the ship in the custody of a Marshal and not an officer of the INS; that he was neither told that his inspection had been deferred or told that he had been paroled, and since he was in possession of a proper immigration visa and all proper papers he was not excludable at that time. In addition, he claims that when the formal notification of August 27, 1956, was given to him that he was paroled into the United States such notification was ineffective since he already had been admitted and jurisdiction in a criminal case had been exercised over him, which would have been improper had he not in fact and in law been admitted. What this boils down to is that if plaintiff was admitted on July 30, 1956, his conviction on a plea of guilty on December 17, 1956, was subsequent to his entry into the United States and, therefore, would not be a ground for excluding him although it might be the ground of subjecting him to deportation.

Basically, plaintiff's argument is that since the Service did not, on shipboard, parole him into the United States and since it did not exclude him it must have admitted him. It is conceded that the Service failed to give plaintiff a Form 1-122 "immediately" as required by the regulations (8 C.F.R. 235.6); but it is equally true that it failed to stamp his visa "Admitted" which is the regulated method of marking visas of persons admitted; these stamped visas are then filed to be a permanent record of admission (8 C.F.R. 235.4 and § 240(a), Act of 1952, 8 U.S.C.A. § 1230(a)); nor was he given Form 1-151 (Alien registration receipt card certifying the time and place of his admission), 8 C.F.R. 264.1(c) (1).

We are satisfied that the regulation 8 C.F.R. 235.6 requiring the examining immigration officer who detains an alien for further inquiry before a Special Inquiry Officer to "immediately sign and deliver to the alien a notice that the alien is being detained for hearing by a Special Inquiry Officer (Form 1-122)," is concerned with the problem of giving an alien adequate notice of why he is detained so that he can prepare to meet the inquiry. Otherwise the concluding sentence of the regulation requiring the notice to be explained through an interpreter, if necessary would have no purpose. Nowhere does plaintiff make any claim that his hearing was unfair or that he had inadequate time to prepare, or that he pleaded guilty under some misapprehension that he would be thereby secure from exclusion.

We hold, therefore, that the failure of the examining inspector to give the plaintiff Form 1-122 on board the S.S. United States did not constitute an "admission" of the alien. In United States ex rel. Fink v. Tod, 1 F.2d 246, 256 (2d Cir., 1924), reversed on confession of error, 267 U.S. 571, 45 S.Ct. 227, 69 L. Ed. 793 (1925), the court said: "When an alien arrives and applies for admission to the country, he may be detained and held without warrant until the immigration officials have determined whether he is entitled to admission. Until that question is determined, the immigration authorities need no process to detain the alien in their custody. The original jurisdiction to hold and exclude rests upon the custody of his person acquired at the time of his arrival, and this original jurisdiction continues until the question of his right to be admitted has been determined in his favor and the proceedings before the immigration officials may be regarded as closed." See, too, Patton v. Tod, 297 F. 385, 396 (2d Cir., 1924); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir., 1954); United States v. Lazarescu, 104 F.Supp. 771 (D.Md., 1952).

As to plaintiff's claim that his removal from the ship by the Marshal and the exercise of criminal jurisdiction over him by the government removed him from the jurisdiction for exclusion purposes of the Immigration Service, it is contrary to almost all of the cases that have considered the problem. United States ex rel. Ling Yee Suey v. Spar, 149 F.2d 881 (2d Cir., 1945); United States ex rel. Pantano v. Corsi, 65 F.2d 322 (2d Cir., 1933); Ng Lin Chong v. McGrath, 91 U.S.App.D.C. 131, 202 F.2d 316 (1952); United States ex rel. Camezon v. District Director, 105 F.Supp. 32 (S.D. N.Y., 1952); Gomes v. Tillinghast, 37 F.2d 935 (D.Mass., 1930); United States ex rel. Metassarakis v. Reimer, 8 F.Supp. 82 (S.D.N.Y., 1934).

The only case which suggests that the bringing of an alien into this country by authorities other than the Immigration Service constitutes an entry for exclusion purposes is Blumen v. Haff, 78 F.2d 833 (9th Cir., 1935) cert. denied 296 U.S. 644, 56 S.Ct. 248, 80 L.Ed. 458, which was specifically disapproved in United States ex rel. Bradley v. Watkins, 163 F. 2d 328 (2d Cir., 1947) and impliedly disapproved in United States ex rel. Ling Yee Suey v. Spar, supra.

We learn from these cases that entry means freedom from governmental restraint, not merely going ashore or crossing the border, and that prior and...