Paris v. Shaughnessy, 137
| Decision Date | 02 July 1957 |
| Docket Number | No. 137,Docket 24017.,137 |
| Citation | 247 F.2d 1 |
| Parties | In the Matter of the Petition of Jean Andre PARIS, Plaintiff-Appellant, v. Edward J. SHAUGHNESSY, as New York District Director of the United States Immigration and Naturalization Service, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Abraham Kaufman and William H. Coogan, New York City, for plaintiff-appellant.
Paul W. Williams, U. S. Atty., New York City (Harold J. Raby, Miriam R. Goldman, Asst. U. S. Attys., New York City, of counsel), for defendant-appellee.
Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
Jean Andre Paris, who had entered this country as a quota immigrant for permanent residence in 1950, petitioned the U. S. District Court for the Southern District of New York for a declaration of the invalidity of a deportation order issued against him in 1955. He also sought an injunction against enforcement of the deportation order. Petitioner and respondent each moved for a summary judgment. On the cross-motions the court below denied the petitioner's motion and granted the respondent's motion, thereby dismissing the petition. Petitioner appeals. The opinion below is reported at D.C.S.D.N.Y.1956, 138 F. Supp. 36, where the facts are more fully set forth.
Prior to passage of the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., Paris voluntarily made application on April 17, 1951 to be relieved from liability for training and service in the armed forces, as permitted pursuant to Section 4(a) of the Selective Service Act of 1948, 62 Stat. 604-606.1 In so doing he debarred himself from becoming a citizen of the United States. Ceballos v. Shaughnessy,2 2 Cir., 1956, 229 F.2d 592, affirmed 1957, 352 U.S. 509, 77 S. Ct. 545, 1 L.Ed.2d 583.
At the time when he applied to be exempted from military service, Paris, as an alien permanent resident of this country, could depart from the United States, visit abroad, and re-enter, legally. Not until the Immigration and Nationality Act of 1952 became law did his subsequent ineligibility to become a citizen affect his freedom in this regard.3
Now the Immigration and Nationality Act of 1952 excludes from admission for permanent residence aliens who are ineligible for citizenship;4 and, of course, provides for the deportation of aliens who at the time of entry are excludable.5 When Paris last departed the United States on August 15, 1953, and then entered this country on September 15, 1953, the Immigration and Nationality Act of 1952 was in effect, and so by Section 212(a) (22) thereof Paris was an excludable alien. He contends, however, that the provisions of Section 405(a),6 the so-called "saving clause," of the 1952 Act apply to him; that, as to him, Section 212(a) (22) is inapplicable; and that he is as non-deportable now as he was in 1952.
But Paris misreads Section 405(a). His pre-existing status of non-deportability would have remained unchanged unless the 1952 Act otherwise specifically provided. Section 212(a) (22) of that Act does so otherwise specifically provide. Cf. Lehmann v. United States, ex rel. Carson, 77 S.Ct. 1022; Mulcahey v. Catalanotte, 77 S.Ct. 1025.
The judgment below is affirmed.
1 Section 4(a) of the Selective Service Act of 1948, 62 Stat. 604-606:
* * *" 50 U.S.C.A.Appendix, § 454(a).
2 The statute involved there was the Selective Training and Service Act of 1940, 55 Stat. 844, 845, the comparable language being found in Section 3(a) thereof:
"Except as otherwise provided in this Act, every male citizen of the United States and every other male person residing in the United States, who is between the ages of twenty and forty-five * * * shall be liable for training and service in the land or naval forces of the United States: Provided, that any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with the rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States * * *."
3 Under the Immigration Act of 1924 Paris was a "non-quota immigrant" when returning from a visit abroad, the pertinent part of Section 4 (former 8 U.S.C.A. § 204) thereof reading:
And Section 13(c) of that Act (former 8 U.S.C.A. § 213(c)) read:
"No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a non-quota immigrant * * *."
4 The pertinent provision is Section 212 (a) (22), 8 U.S.C.A. § 1182(a) (22), reading:
§ 212(a) (22), 8 U.S.C.A. § 1182(a) (22):
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United States v. Hoellger
...When Section 4(a) of the Selective Service Act of June 24, 1948 Was in Force. a. Court of Appeals for the Second Circuit: Paris v. Shaughnessy, 1957, 247 F.2d 1, certiorari denied 355 U.S. 926, 78 S.Ct. 384, 2 L.Ed.2d 357. b. Courts of Appeals for Other Circuits: Petition of Cuozzo, 3 Cir.,......
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