Sentner v. Colarelli

• Decision Date: 04 October 1956
• Docket Number: No. 9440(1).,9440(1).
• Citation: 145 F. Supp. 569
• Parties: Antonia SENTNER, Plaintiff, v. Henry J. COLARELLI, Officer-in-Charge of the Immigration and Naturalization Service in the City of St. Louis, Missouri, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

145 F. Supp. 569

Antonia SENTNER, Plaintiff, v. Henry J. COLARELLI, Officer-in-Charge of the Immigration and Naturalization Service in the City of St. Louis, Missouri, Defendant.

No. 9440(1).

United States District Court E. D. Missouri, E. D.

October 4, 1956.

COPYRIGHT MATERIAL OMITTED

Sydney L. Berger, Evansville, Ind., R. L. Witherspoon, St. Louis, Mo., for plaintiff.

Harry Richards, U. S. Atty., and W. Francis Murrell, Asst. U. S. Atty., St. Louis, Mo., for defendant.

Before WOODROUGH, Circuit Judge, and MOORE and HARPER, District Judges.

MOORE, District Judge.

Plaintiff, an alien subject to a final order of deportation, brought this action against defendant, the Officer-in-Charge of the Immigration and Naturalization Service of the United States in St. Louis, to set aside, and enjoin the enforcement of, a certain "Order of Supervision" issued by defendant pursuant to Section 242(d) of the so-called McCarran-Walter Act (the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252(d)). Since the complaint charged that Section 242(d), and the Order of Supervision, were unconstitutional, a three-judge court was convened.

Defendant has filed a motion to dismiss upon various grounds, and an answer. Plaintiff has filed a reply, and a motion for summary judgment. As it appears from the pleadings that no material fact is in issue, the matter will be disposed of upon these pleadings.

Plaintiff is a foreign born resident of the United States. She arrived in the United States on an immigrant visa and was admitted for permanent residence on July 26, 1914, when she was eight years old. She has been a resident of the United States for more than thirty-nine years and has lived continuously in the City of St. Louis, Missouri, for more than twenty-eight years. She was married in St. Louis on February 19, 1935, and she has lived in the same house in St. Louis since 1942, together with her husband and two minor children, all of whom are native-born citizens of the United States.

In 1949, the government started deportation proceedings against plaintiff. Those proceedings culminated in an order of deportation on April 3, 1953. At one point during those proceedings the Attorney General sought to hold plaintiff without bail, but she was released by this court upon a writ of habeas corpus. Ex parte Sentner, D.C., 94 F.Supp. 77. Otherwise, plaintiff has at all times since 1949 been free on bond of $2000, which is still outstanding. She has at all times kept herself available for hearings, and has fully complied with all terms of the bond.

A little more than six months after the entry of the order of deportation, on October 9, 1953, defendant issued an "Order of Supervision", purporting to limit plaintiff's freedom in several respects, and pointing out that violation of the terms of such an order is a criminal offense, in violation of Section 242(d). Plaintiff thereupon brought this action to declare the order void, and a preliminary restraining order was issued.

During the pendency of this action, and shortly before the argument of this case, defendant modified the "Order of Supervision", and served the new order upon plaintiff. Neither party has taken the position that this new order renders the case moot, and neither has urged that the case be dismissed upon that ground. Nor should the case be dismissed as moot, for defendant should not be permitted to frustrate judicial review simply by issuing a new order from time to time. The complaint has been formally amended to seek review of "any orders" issued pursuant to Section 242(d). It is clear that the new order is now the basis of the controversy between the parties, and the oral argument has been directed in large measure toward the new order. Since the new order differs only slightly from to old one, the simplest way to dispose of the case is to regard the complaint as having been amended to seek review specifically of the new order. That order reads as follows:

"United States Department of Justice Immigration and Naturalization Service "District File No. A-4579002 "A.R. No. A-4579002 "Date January 16, 1956

"Order of Supervision

"In the case of Antonia Sentner, whose deportation in accordance with law was ordered on April 3, 1953.

"Section 242(d) of the Immigration and Nationality Act provides:

"`Any alien, against whom a final order of deportation as defined in subsection (c) heretofore or hereafter issued has been outstanding for more than six months, shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General. Such regulations shall include provisions which will require any alien subject to supervision (1) to appear from time to time before an immigration officer for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such reasonable written restrictions on his conduct or activities as are prescribed by the Attorney General in his case. Any alien who shall willfully fail to comply with such regulations, or willfully fail to appear or to give information or submit to medical or psychiatric examination if required, or knowingly give false information in relation to the requirements of such regulations, or knowingly violate a reasonable restriction imposed upon his conduct or activity, shall upon conviction be guilty of a felony, and shall be fined not more than $1,000 or shall be imprisoned not more than one year, or both.'

"Therefore, it is hereby ordered that such alien shall be placed under supervision and permitted to be and to remain at large upon the following terms:

"(1) That said alien shall produce himself, at time and place designated, for deportation pursuant to the order of deportation.

"(2) That said alien shall upon request produce himself at a time and place designated for the purpose of submitting to medical and psychiatric examination and/or to furnish such information as may be deemed fit and proper.

"(3-a) That said alien shall notify the Officer in Charge of the Immigration and Naturalization Service at the address shown in (4) hereof of any change in residence or employment, within the immigration district, within 48 hours after change is made.

"(3-b) That said alien shall apply to the Officer in Charge of the Immigration and Naturalization Service at the address shown in (4) for permission to change place of residence from one immigration district to another, at least 48 hours prior to such change.

"(4) That said alien shall report in Person on the 9th day of each month at ____ (a. m.) (p. m.) to the Officer in Charge of the Immigration and Naturalization Service at Room 602, New Federal Building, 12th and Market Streets, St. Louis, Mo.

"(5) That said alien shall conduct herself in a lawful and orderly manner.

"(6) That said alien shall terminate and remain disassociated from, membership in, if any, support or other activity, if any, in or in furtherance of the doctrines and policies of, the Communist Party of the United States, the Communist Political Association, the Communist Party of any state, or of any foreign state, or of any political or geographical subdivision of any state, any section, subsidiary, branch, affiliate, or subdivision of any such group or organization.

"(7) That such alien shall refrain from `associating' with any person, knowing or having reasonable ground to believe that such person is a member of or affiliated with or is engaged in any promotion of any of the activities mentioned in subparagraph (6) above, provided that the term `associating' as used in this subparagraph shall not be construed to include members of such alien's family or professional legal counsel if such associations are not used in furtherance of the doctrines, policies, or activities of any of the organizations or activities mentioned in subparagraph (6).

"(8) That said alien shall not violate section 2385 of the `Smith' Act of June 25, 1948 (section 2385 of Title 18 U.S.Code) and Section 4 of the Internal Security Act of September 23, 1950 (section 783 of Title 50, U.S.C.A.).

"(9) That said alien shall upon request report in person for the purpose of giving information under oath to an immigration officer concerning her conduct, associations and activities.

"(10) That said alien shall not travel outside the State of Missouri without obtaining prior permission from the officer-in-charge, Immigration and Naturalization Service, St. Louis, Mo.

"Henry Colarelli "St. Louis, Mo.

"(Officer in Charge, Immigration and Naturalization Service).

"I, Antonia Sentner, hereby acknowledge that I have read and understand the terms of this order, a copy of which I have received. I further understand that failure to comply with the terms of this order or with any of the conditions of 242(d) of the Immigration and Nationality Act, will subject me to prosecution.

("Signature typed in, but alien did not sign) _____________________________________ Antonia Sentner (Alien's signature) 5673 Cabanne Ave., St. Louis, Mo "(Signed) "Ernest W. Rosenkoetter _______________________ "Immigration Officer "Investigator "U. S. Immigration & Naturalization Service "St. Louis, Mo. (Address).

"I, _______ hereby acknowledge that I understand the terms set forth above and hereby agree to furnish a written report ______ each month to the Officer in Charge concerning the alien's name, registration number, current address, place of employment, associates, and organizational activities, and that I will immediately report any failure on the part of the alien to comply with the terms of the order or information coming to my attention which might indicate that the alien intends to abscond or otherwise

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