Siminoff v. Esperdy
| Decision Date | 18 June 1959 |
| Docket Number | No. 283,Docket 25367.,283 |
| Citation | 267 F.2d 705 |
| Parties | Joseph SIMINOFF, Ida Gottesman, Anna Taffler, Benny Saltzman, Felix Kusman, Rose Lightcap and Martin Young, Plaintiffs-Appellants, v. P. A. ESPERDY, District Director of the Third District of the Immigration and Naturalization Service at New York, New York, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Blanch Freedman, New York City (Gloria Agrin and David M. Freedman, New York City, on the brief), for plaintiffs-appellants.
Roy Babitt, Sp. Asst. U. S. Atty., S. D. N. Y., New York City (Arthur H. Christy, U. S. Atty., New York City, on the brief), for defendant-appellee.
Before CLARK, Chief Judge, WATERMAN, Circuit Judge, and EDELSTEIN, District Judge.
This is an appeal from a decision of Judge Dawson, Siminoff v. Murff, D.C. S.D.N.Y., 164 F.Supp. 34, granting summary judgment dismissing plaintiffs' complaint. There is no dispute as to the material facts. Plaintiffs are aliens who have lived in this country for many years (20 to 53 in fact). They have been ordered deported because of membership in the Communist Party of the United States; these orders were entered as long ago as November 1951. Due apparently to exigencies of the cold war which are not likely to vanish overnight, the Immigration and Naturalization Service has been unable to effect the deportation of any of them since that date. In this action for a declaratory judgment and injunctive relief plaintiffs challenge the validity of a provision of an Order of Supervision issued to each of them by the Immigration and Naturalization Service under § 242(d) (4) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252(d)(4). This provision states:
"That said alien shall not travel outside New York District, without furnishing written notice to the Asst. District Director for Deportation of the Immigration and Naturalization Service * * * of the places to which he intends to travel and the dates of such travel, at least 48 hours prior to beginning the travel unless the Immigration Officer grants him written permission to begin the travel before the expiration of the 48-hour notice period."
It is definitively settled that the Attorney General's power of supervision under § 242(d) of the Immigration and Nationality Act is limited solely to assuring the availability of a deportable alien for deportation when that event should become feasible; and as this supervision may of necessity drag on into a lifetime surveillance, the powers granted by the section must be sparingly exercised. Barton v. Sentner, 353 U.S. 963, 77 S.Ct. 1047, 1 L.Ed.2d 901, affirming Sentner v. Colarelli, D.C.E.D.Mo., 145 F.Supp. 569; United States v. Witkovich, 353 U.S. 194, 77 S.Ct. 779, 1 L.Ed.2d 765. The Sentner and Witkovich cases also make clear that orders issued under § 242(d) are to be held to these standards by a rather strict court review.
The New York District of the Immigration and Naturalization Service, to which this order limits plaintiffs, includes New York City itself and only those suburban counties adjacent thereto which are within the State of New York. Hence plaintiffs' uncontradicted affidavits below not surprisingly show that the Service's orders worked substantial hardship and inconvenience on each of them. Thus they are prevented from making sudden, though natural, trips to work or to visit their children or relatives across the Hudson in New Jersey or up in nearby Connecticut. By way of contrast plaintiffs are ordered by other provisions of the same Orders of Supervision to report to the Immigration and Naturalization Service only four times a year and to notify the Service of changes in residence or employment 48 hours after the event. Requiring 48 hours' advance notice by them for trips which would be ordinarily planned and taken on the spur of the moment cannot, we think, be justified as reasonably necessary to assure their availability for deportation in the halcyon future when their native countries or some others will accept them. At a very minimum, in plaintiffs' present circumstances an order of this nature should be limited to notice mailed to the Service immediately prior to a trip and applicable only to trips of some considerable distance or duration.
It is, of course, not our function to define in detail a proper order; and beyond our previous comments we do not feel that we should go. The attorney for the defendant in his affidavit to the district court referred to several "offers" to modify the regulations made to and rejected by the plaintiffs. Since, however, these were never issued as official orders, we do not see that they are before us; nor...
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