Paris v. Shaughnessy

• Decision Date: 14 February 1956
• Citation: 138 F. Supp. 36
• Parties: Matter of the Petition of Jean Andre PARIS, Petitioner, v. Edward J. SHAUGHNESSY, as New York District Director of the United States Immigration and Naturalization Service, Respondent.
• Court: U.S. District Court — Southern District of New York

138 F. Supp. 36

Matter of the Petition of Jean Andre PARIS, Petitioner, v. Edward J. SHAUGHNESSY, as New York District Director of the United States Immigration and Naturalization Service, Respondent.

United States District Court S. D. New York.

February 14, 1956.

COPYRIGHT MATERIAL OMITTED

Abraham Kaufman and William H. Coogan, New York City, for petitioner.

Paul W. Williams, U. S. Atty., Harold J. Raby, Asst. U. S. Atty., New York City, of counsel, Roy Babitt, Attorney in Office of District Director of Immigration and Naturalization Service of United States, Department of Justice, New York City, of counsel, for respondent.

DAWSON, District Judge.

This case presents for decision cross-motions for summary judgment going to the merits of an alien's petition for a declaration of the invalidity of a deportation order and an injunction against its enforcement.

The papers raise the issue as to whether a person who was legally admitted to this Country for permanent residence prior to the passage of the Immigration and Nationality Act of 1952¹ and thereafter applied for exemption from the draft, and thereby became ineligible for citizenship, and later left the United States and entered it after the passage of the Immigration and Nationality Act of 1952, is now deportable on the ground that at the time of his later entry, he was a person ineligible for citizenship and, therefore, should have been excluded.

The Facts

The following facts appear to exist without substantial controversy:

The petitioner, a native of France, 27 years of age, arrived in this Country as a quota immigrant for permanent residence on October 24, 1950.

On or about March 16, 1951, petitioner registered for the draft with Local Board 13 in the City of New York. Thereafter, he applied at the Office of the Immigration and Naturalization Service for a re-entry permit, and he was advised that he would not be issued a re-entry permit without first obtaining from his local draft board a permit to depart from the United States. He applied to his local draft board for such a permit and was advised that the only way he could obtain it was to file an application as an alien for exemption from military service. Petitioner contends that he wished the re-entry permit so that he could return to France to visit his father who was ill at the time and was expected to die. Petitioner executed SSS Form 130, "Application By Alien For Relief From Training And Service In The Armed Forces." The application had on it the following statement: "I have read the Notice given below, and I understand that I will forever lose my right to become a citizen of the United States, and I may also be prohibited from entry into the United States or its territories or possessions as a result of filing this application." The application was filed on April 17, 1951. On the same day, he was classified in Class IV-C by his local draft board and was issued the permit to depart. The next day he was issued a re-entry permit by the Immigration and Naturalization Service. He thereupon left the United States.

Petitioner returned to the United States on or about April 7, 1952. He next left the United States on August 15, 1953, for a trip to France, having received a re-entry permit from the Immigration and Naturalization Service. He re-entered the United States on or about September 15, 1953. The Immigration and Nationality Act of 1952 became effective on December 24, 1952.

Petitioner, on February 23, 1955, was served with a warrant of arrest in deportation proceedings. On May 10, 1955, an order was entered by the Special Inquiry Officer granting petitioner voluntary departure in lieu of deportation, but holding that he was deportable under the provisions of § 212(a) (22) of the Immigration and Nationality Act on the ground that at the time of his last entry in the United States, he was within one or more classes of aliens not eligible for entry, to wit: aliens who were ineligible to citizenship. An appeal was taken to the Board of Immigration Appeals, and on September 28, 1955, the Board dismissed the appeal. A final order was entered on November 7, 1955, directing him to arrange to depart from the United States on or before December 9, 1955, and directing that should he fail to avail himself of voluntary departure, he should surrender on or before December 12, 1955, in complete readiness for deportation.

Petitioner is married to a United States citizen. He has no children. He is employed as a jewelry designer at a salary of approximately $20,000 a year.

There appears to be no dispute that petitioner signed the application for exemption from military service voluntarily and with full knowledge that it would make him ineligible to citizenship in the United States. There is also no dispute that petitioner sought the privilege of immigration into the United States and thereafter used his alien status as a recourse for escaping military duty and now seeks to preserve a right to remain in the United States and to enter and reenter the United States in the same manner as though he had not refused to perform military service.

The Law

The law is clear that a person who secured exemption from service in the military forces by execution of SSS Form 130 became permanently debarred from becoming a citizen of the United States.²

There can also be no dispute that under the provisions of the Immigration and Nationality Act of 1952, a person who was not eligible for citizenship is not admissible into the United States as an immigrant for permanent residence.³

The Act further provides that an alien who is in the United States may be deported if he was, at the time of his entry, within one or more classes of aliens excludable by the law existing at the time of such entry.⁴

Under the Act which was in effect at the time of petitioner's entry into the United States, and which preceded the Immigration and Nationality Act of 1952, petitioner had the status of a "nonquota immigrant", which is defined as "An immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad".⁵ However, that Act provided specifically in § 13(c), 8 U.S.C. § 213(c), "No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b) * * * of section 4 * * *." Therefore, at the time of petitioner's original admission into the United States and of his execution of SSS Form 130, the mere fact that he was ineligible to citizenship would not have prevented him leaving the United States and returning as a non-quota immigrant under the law then in effect.

The 1952 Act, however, which was in effect at the time of his latest entry into the United States, has no such provision and specifically provides that among the classes of aliens who shall be ineligible to receive visas and who shall be excluded from admission into the United States are "Aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmigrants".⁶

When petitioner returned to the United States in 1953, he did not return as a "non-immigrant". See definition of "immigrant", § 101(a) (15) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101(a) (15).

Petitioner has the same status (a nonquota immigrant)⁷ under the 1952 Act as he had under the preceding Act, but the prior Act attached to this status a right not provided in the 1952 Act, i. e., the right of such person who had been admitted for permanent residence to thereafter leave and re-enter the Country regardless of eligibility to citizenship.

It is the contention of petitioner that prior to the passage of the 1952 Act, he had the status of a non-quota immigrant and the right to leave and re-enter the United States, even though ineligible to citizenship, and that this right was preserved by the savings clause of the 1952 Act.⁸

The question here presented — which is a novel one, so far as I can ascertain — is whether the savings clause of the 1952 Act preserved to a person who had been admitted for permanent residence under the previous Act the right to leave and re-enter, irrespective of his qualification for citizenship, because the previous Act gave him that right, and whether this right was preserved even though his reentry occurred at the time when the 1952 Act was effective, which specifically prohibited the entry of such an alien.

That the alien had the status under the previous Act of a non-quota immigrant is undoubted. The fact that he took a step which debarred him from citizenship did not at that time make him subject to deportation, for his status as an alien admitted for permanent residence remained unimpaired, despite the passage of the 1952 Act. However, did that status carry with it the right to leave and re-enter the Country at the time when the 1952 Act was in effect, when the precise language of that Act prohibited the entry of an immigrant who was ineligible for citizenship?

Under early immigration acts, it was held that the provisions for exclusion and deportation of aliens were confined to "alien immigrants" and that this term did not include alien residents returning after a temporary absence from the Country. See Lapina v. Williams, 1914, 232 U.S. 78, 86, 34 S.Ct. 196, 58 L.Ed. 515. However, after the passage of the Act of March 3, 1903, 32 Stat. 1213, the Supreme Court in the Lapina case held that an alien resident who left the Country for a few months and then re-entered and resumed the occupation of prostitute could be deported on the ground that she had practiced prostitution within three years after the time of her entry into the Country. The Court held that the deportation and exclusion provisions applied to aliens "irrespective of any qualification arising out of a previous residence or domicil in this country", 232 U. S. at page 91, 34 S.Ct. at page 200.

In Shaughnessy v. United States ex rel....