De Koning v. Zimmerman, 10181.

• Decision Date: 13 February 1950
• Docket Number: No. 10181.,10181.
• Citation: 89 F. Supp. 891
• Parties: de KONING v. ZIMMERMAN, District Director of Immigration and Naturalization.
• Court: U.S. District Court — Eastern District of Pennsylvania

89 F. Supp. 891

de KONING v. ZIMMERMAN, District Director of Immigration and Naturalization.

No. 10181.

United States District Court E. D. Pennsylvania.

February 13, 1950.

Abram Orlow, Philadelphia, Pa., for plaintiff.

Gerald A. Gleeson, United States Attorney, Philadelphia, Pa., James P. McCormick, Assistant United States Attorney, Philadelphia, Pa., for defendant.

GANEY, District Judge.

This case arises upon a motion to dismiss a complaint in a civil action. The action was brought (1) to have defendant's order, notifying the plaintiff to depart the United States, declared null and void, and (2) to review a decision of the Board of Immigration Appeals, or for a declaratory interpretation of Sec. 19(c) (2) (b) of the Immigration Act of 1917, as amended¹. Without regard to the merits of his case, that decision, as a matter of law, denied plaintiff the right of seeking discretionary suspension of his pending deportation by the Attorney General of the United States under Sec. 19(c) (2) (b).

In substance the following facts are averred in the complaint. The plaintiff, a citizen of the Netherlands, was allowed to enter the United States in 1922 for permanent residence. That was his first entry into this country. He remained here until 1930, a period of more than seven consecutive years. Sometime thereafter he obtained a non quota visa as a returning resident alien through the American Consulate General in Holland. However, he did not return here until October 29, 1946, when he was admitted for a temporary period of three months as a business visitor². He has remained here since that date. Subsequently a warrant of arrest in deportation proceedings was issued against him by the immigration authorities³. The warrant charged him with being subject to deportation because he was violating the provisions of the Immigration Act of 1917, as amended in 1924, 8 U.S.C.A. § 145 et seq., in that he failed to maintain his exempt business status. In the course of the deportation proceedings, he applied for suspension of his deportation, or in the alternative for voluntary departure with pre-examination. The Commissioner of Immigration recommended voluntary departure but denied all other relief requested by plaintiff. Upon review of this recommendation and denial, the Board of Immigration Appeals, on September 13, 1949, dismissed the plaintiff's appeal. On October 6, 1949, after he was notified and advised by the District Director of Immigration, the defendant herein, to depart the United States within sixty days of receipt of the notice, plaintiff brought this civil action.

On the same day this court issued an order to show cause why defendant's order directing plaintiff to depart should not be declared null and void. At the time the show cause order was signed by the court, plaintiff was not in defendant's custody, nor has he been taken into custody since.

The defendant's motion poses four questions, the answer to any one of which in favor of the defendant will require us to dismiss the complaint. They are as follows: (1) Are deportation proceedings subject to review under the provisions of Sec. 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009? (2) Is the defendant a proper party to this action? (3) Is the defendant's order reviewable? (4) Does Sec. 19(c) (2) (b) of the Immigration Act of 1917, as amended, grant to the plaintiff the right to file an application for discretionary suspension of deportation based on his residence in this country? A single paragraph will be devoted to answering each of the questions posed.

1. The case of Podovinnikoff v. Miller, Commissioner of Immigration, et al., 3 Cir., 179 F.2d 937, January 30, 1950 has answered the first question for us. In answering that question, our Court of Appeals adhered to the views expressed in United States ex rel. Trinler v. Carusi, 3 Cir., 1948, 166 F.2d 457.

2. The test for determining whether a subordinate official is a proper party to an action is set forth in Williams et al. v. Fanning, 1947, 332 U.S. 490, 494, 68 S.Ct. 188, 92 L.Ed. 95, and in Hynes v. Grimes Packing Co., 1949, 337 U.S. 86, 96, 69 S.Ct. 968. If the order of the defendant or his superior be declared null and void and the defendant insists on enforcing that order after it has been declared null and void, a decree by this court restraining him from proceeding any further with the enforcement of that order will effectively grant the relief desired by plaintiff against that particular defendant.⁴ See Yanish v. Phelan et al., D.C.N.D.Cal.1949, 86 F.Supp. 461.

3. In the event that plaintiff fails to comply with defendant's "notice" within the time specified therein, an order of deportation will be issued against him. Because the latter has not been issued, defendant contends that his "notice" to plaintiff to depart voluntarily is not an order and therefore not reviewable by this court. The case of Chicago & Southern Air Lines v. Waterman S. S. Corp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, tells us that an administrative order is reviewable if it imposes an obligation on the complaining party. Defendant's "notice" to depart does just that. We, therefore, since plaintiff has pursued his administrative remedies, need not wait until the ultimate order of deportation is issued before we have authority to declare defendant's order or the one he is enforcing as having no legal effect.

4. Section 19(...