Moutsos v. Shaughnessy

• Decision Date: 19 February 1957
• Citation: 149 F. Supp. 116
• Parties: Petros M. MOUTSOS, Plaintiff, v. Edward J. SHAUGHNESSY, District Director of the New York District of the Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Southern District of New York

149 F. Supp. 116

Petros M. MOUTSOS, Plaintiff, v. Edward J. SHAUGHNESSY, District Director of the New York District of the Immigration and Naturalization Service, Defendant.

United States District Court S. D. New York.

February 19, 1957.

William L. Standard, New York City, for plaintiff, Lester E. Fetell, New York City, of counsel.

Paul W. Williams, United States Atty., Southern Dist. of New York, New York City, for defendants, Roy Babitt, Special Asst. to the U. S. Atty., and General Attorney, Immigration & Naturalization Service, New York City, of counsel.

DAWSON, District Judge.

This is a motion for a temporary injunction to stay the deportation of the plaintiff. The defendant has cross-moved for summary judgment.

The plaintiff is a twenty-four year old Greek seaman who entered the United States on October 10, 1955 as a member of a ship's crew. He has been ordered deported on the ground that he has remained in the United States beyond the time allowed him as a non-immigrant seaman.

A hearing was held before a Special Inquiry Officer of the Immigration and Naturalization Service at which plaintiff was represented by counsel. The Special Inquiry Officer found the plaintiff deportable and not entitled to the favorable exercise of administrative discretion to permit voluntary departure. An appeal was taken to the Board of Immigration Appeals which, after consideration of counsels' arguments and examination of the record, dismissed the appeal.

The plaintiff does not contend that he is legally in the country. The issue of his deportability has not been raised on this motion. As a matter of fact, at the hearing before the Special Inquiry Officer, no evidence was offered by plaintiff on the issue of deportability. The issue raised herein solely relates to the question as to whether plaintiff should have been entitled to make a voluntary departure.

At the hearing before the Special Inquiry Officer plaintiff made application for the privilege of voluntary departure, under the provisions of 8 U.S.C.A. § 1254(e). The hearing officer found that plaintiff was statutorily eligible for the privilege of voluntary departure but concluded:

"* * * While, as previously indicated, it is found that this respondent is statutorily eligible for the relief of voluntary departure, it is considered in light of the other factors of record, particularly his association with the O.E.N.O., his refusal to admit or deny membership in the Communist Party of Greece, his admitted efforts in obtaining subscriptions and collections of subscription fees for the `Naftergatis', a newspaper which he admits was published by the O.E.N.O., as well as the attitude of this respondent that the Government of the United States has no right to inquire into his political beliefs, that this respondent has not demonstrated that he is a person deserving of favorable administrative discretion."

Plaintiff admitted at the hearing that he was a member of the O.E.N.O., an association of Greek seamen which plaintiff admitted was outlawed as illegal by the Greek Government. He was then asked:-

"Q. Are you now a member of a Communist Party?

"A. Everybody can believe whatever he wants to believe in.

"Q. Please answer the question.

"A. Everybody has his own beliefs. You cannot command me what to believe in.

"Q. Do you believe in Communism?

"A. That concerns me, no one else." Transcript p. 45.

Plaintiff asks relief in this proceeding on several grounds:

1. That the hearing was arbitrary. A careful study of the hearing shows that it was not arbitrary. Full opportunity was given to plaintiff to present his case and he was throughout represented by experienced, although somewhat voluble, counsel. It is true that counsel asked for an adjournment which was denied. This denial was made, however, only after counsel indicated that he did not know whether there would be any evidence for him to present at the adjourned hearing. No party has an inflexible right to adjournment. His...