Mastrapasqua v. Shaughnessy

Decision Date02 March 1950
Docket NumberDocket 21527.,No. 140,140
Citation180 F.2d 999
CourtU.S. Court of Appeals — Second Circuit


Charles Graff, of New York City, for appellant.

Irving H. Saypol, of New York City (William J. Sexton, Louis Steinberg and Lester Friedman, of New York City, of counsel), for appellee.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The statutes authorizing voluntary departure of deportable aliens, and the suspension of their deportation, state that the Attorney General "may" grant these forms of relief. In considering applications for such relief, then, the Attorney General exercises powers of discretion. In addition to these powers granted by statute, the Attorney General, by regulation, has also established the discretionary relief of "pre-examination." See 8 C.F.R. 142. He has delegated all of these discretionary powers to the Commissioner of Immigration and Naturalization and to the Board of Immigration Appeals. See 8 U.S.C.A. § 458(a); 8 C.F.R. 90, 150. His regulations have the force and effect of law. See Caha v. United States, 152 U.S. 211, 14 S.Ct. 513, 38 L.Ed. 415; Boske v. Comingore, 177 U. S. 459 20 S.Ct. 701, 44 L.Ed. 846. The Regulations specifically provide that a person, like Mastrapasqua, subject to deportation, may apply for one or all of these forms of discretionary relief: (1) voluntary departure; (2) suspension of deportation; (3) pre-examination. See 8 C.F.R. 150.6 (g) (3).6

Courts have no power to review administrative discretion when it is reasonably exercised. United States ex rel. Weddeke v. Watkins, 2 Cir., 166 F.2d 369, 373, certiorari denied, 333 U.S. 876, 68 S.Ct. 904, 92 L.Ed. 1152. But, in appropriate circumstances, they can compel correction of an abuse of discretion or can compel an official to exercise his discretion where he has obviously failed or refused to do so. Such an obvious refusal occurs, we think, when an official sets up a class of cases as to which he refuses ever to exercise any discretion, one way or the other, if that class is not rationally differentiated from other cases, not within that class, where he uses his discretion case by case. Thus, where a trial judge refused to pass upon petitions for naturalization "because of a policy * * * not to grant citizenship during the war" to a certain class of persons, it was held that the upper court could direct him to exercise his discretion. Schwab v. Coleman, 4 Cir., 145 F.2d 672. This same doctrine has often been applied to officials who are not judges. See, e. g., the statement in Wilbur v. United States, 281 U.S. 206, 218, 50 S.Ct. 320, 74 L.Ed. 809.

The Board here has held that the discretionary power delegated to it by the Attorney General cannot be exercised to allow Mastrapasqua either pre-examination or suspension of deportation. The sole ground given has been that Mastrapasqua is a member of a class to which the Attorney General has decided that, as a matter of policy, such discretionary relief shall not be accorded. For here, the Board, in denying these two types of relief to Mastrapasqua, has twice held that it was bound by the decision of the Attorney General in Matter of Lagomarsino, No. A-5955999, and the nature of that decision appears from the following:

Lagomarsino (like Mastrapasqua) came to the United States on an Italian vessel which, for security reasons, was seized by the American authorities. On May 21, 1941, the Board affirmed a decision denying his application for voluntary departure and pre-examination. On October 24, 1945, however, because of Lagomarsino's record while living in this country, and because of his marriage to an American citizen, the Board granted pre-examination and a stay of deportation. The Commissioner, on November 5, asked the Board to reconsider its position. He said that, as to aliens present in the United States "solely because of reasons connected with the war," it was the "policy" of the Immigration Service "not to apply procedures looking to the adjustment of their status in the United States." The Commissioner said that the most favorable action theretofore taken in such cases had been to grant permission to depart voluntarily and to give consideration to applications for permission to re-apply within one year after departure. Considering the Commissioner's request, the Board, on December 14, 1945, agreed that "as a general policy where an alien has been brought to this country because of conditions arising out of the war, he should be returned to his native or adopted country * * * as soon as practicable." But, said the Board, this general policy "should be administered in such a manner as not to bring about harsh consequences." Accordingly, the Board granted Lagomarsino pre-examination, voluntary departure, and permission to re-apply within one year of departure. Because, however, "a question of policy" was involved, the Board, at the Commissioner's request, referred its decision and order to the Attorney General for review. On February 8, 1946, the Attorney General directed that the Board's order of December 14, 1945, be set aside, and that the Board's earlier order, of May 21, 1941 — the order denying voluntary departure and pre-examination — be reinstated and approved. The Board had referred its decision and order to the Attorney General under Title 8, Sec. 90.12, Code Fed.Regs. That section (see 1945 Supplement) provided that, if the Attorney General reversed the decision of the Board, he should "state in writing his conclusions and reasons for his decision." But, the Attorney General's order of February 8, 1946 merely directed the Board to reverse itself; the Attorney General gave no explanation or justification.

However, since, in Lagomarsino, he overruled the Board and thus agreed with the Commissioner, it seems clear that the Attorney General was acting in accordance with a "policy" of refusing to consider whether or not to give discretionary relief of pre-examination to any persons coming within a fixed category, i. e., those whose presence in the United States is due solely to the war. It is also clear that the Board felt constrained by the Lagomarsino decision to apply the "policy" based on this classification to Mastrapasqua's requests for, first, pre-examination, and, later, suspension of deportation. No justification of this classification is in the record of either the present case or in Matter of Lagomarsino. Nor can we discern any. There seems no more rationality in this classification than there would be in arbitrarily refusing to consider discretionary relief for all left-handed men or for all whose names begin with the first thirteen letters of the alphabet. Consequently, we conclude that the classification is capricious.7

We need not here decide whether the district court, in a habeas corpus proceeding or otherwise, can properly, by mandamus, direct that discretion be exercised, one way or the other, without regard to this classification. For the district court can properly release Mastrapasqua from custody unless that action is taken.8

Accordingly, we remand with directions to the district court to order appellant released from custody unless, within a reasonable time to be determined by the district court, the Immigration and Naturalization Service exercises discretion, one way or another, with respect to Mastrapasqua upon his application for pre-examination or suspension of deportation.9

Reversed and remanded.


Board Decision of October 1, 1948 on Mastrapasqua.

File No. 56074/211


Motion in Deportation Proceedings

This record is before us on motion to reconsider an order entered by this Board December 12, 1947, granting the respondent voluntary departure within sixty days after notification of decision and further providing for his deportation to Italy in the event he fails to depart within the time limit above stated. The respondent in an affidavit in support of motion urges that this Board grant the additional privilege of preexamination. Respondent avers that he has been in the United States for more than seven years, that his departure would result in a great hardship in that it would entail residence in a foreign land for a long period of time while awaiting a quota visa, and that this Board in a similar case (Matter of Corrao, 5190348, May 7, 1947) granted the privilege of preexamination.

The respondent, a native and citizen of Italy, last entered the United States at Boston, Massachusetts, on June 7, 1940, as an Italian seaman. Following the entry of Italy into World War II, the respondent's vessel remained in port. The respondent remained on board until removed by the Coast Guard on March 30, 1941, pursuant to the program to avoid the sabotage of Italian vessels interned as a result of Italy's entry into the war. A warrant for the respondent's arrest was issued March 31, 1941. A warrant for his deportation on the charge laid under the Act of 1924, to wit: that after entry as a seaman he remained longer than permitted, is dated May 23, 1941.

During the war the respondent was interned at Fort Missoula, Montana, along with other Italian seamen. He was paroled in March of 1944. Since his parole the case has been considered several times on motion. Warrants of deportation have on at least two occasions been withdrawn to give the respondent an opportunity to depart voluntarily.

The respondent now seeks the additional privilege of preexamination and refers to the action taken in the Matter of Corrao (supra). While it is true that the facts of this case are similar, this Board finds that on November 20, 1946, we granted the alien Corrao voluntary departure, denied his application for preexamination, and placed him on notice that unless departure was effected within the time limit set, we proposed to order his deportation....

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    ...or can compel an official to exercise his discretion where he has obviously failed or refused to do so." Mastrapasqua v. Shaughnessy, 180 F.2d 999, 1002 (2d Cir.1950) (compelling INS and BIA to act upon petition for review of deportation The government's challenge thus fails if the Attorney......
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