Siminoff v. Murff

• Decision Date: 13 July 1958
• Citation: 164 F. Supp. 34
• Parties: Joseph SIMINOFF, Ida Gottesman, Anna Taffler, Benny Saltzman, Felix Kusman, Rose Lightcap and Martin Young, Plaintiffs, v. John L. MURFF, District Director of the Third District of the Immigration and Naturalization Service at New York, New York, Defendant.
• Court: U.S. District Court — Southern District of New York

164 F. Supp. 34

Joseph SIMINOFF, Ida Gottesman, Anna Taffler, Benny Saltzman, Felix Kusman, Rose Lightcap and Martin Young, Plaintiffs, v. John L. MURFF, District Director of the Third District of the Immigration and Naturalization Service at New York, New York, Defendant.

United States District Court S. D. New York.

July 13, 1958.

Blanch Freedman and Gloria Agrin, New York City, for plaintiffs. Blanch Freedman, New York City, of counsel.

Paul W. Williams, U. S. Atty. for Southern Dist. of New York, New York City, for defendant. Roy Babitt, Sp. Asst. to the U. S. Atty., New York City, of counsel.

DAWSON, District Judge.

These are two motions and a cross-motion filed in the above-entitled action. The action, filed April 10, 1958, is for a declaratory judgment declaring that § 242(d) (4) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252, and Regulation 242.2(d) of Title 8 of the Code of Federal Regulations, as construed and applied, are unconstitutional, invalid and void, and that Provision (3) of Orders of Supervision, issued under the above statute and regulation on February 6, 1958, December 17, 1957 and December 27, 1957, is unauthorized by statute and an unreasonable exercise of power and discretion and unconstitutional, and, therefore, invalid and void.

Plaintiffs here, by an order to show cause, ask this Court to make the above declarations on motion, and ask that pending a determination of the action the defendant be enjoined from requiring the plaintiffs to comply with Provision (3) of the Orders of Supervision. On the basis of their allegation that § 242(d) (4) of the Immigration and Nationality Act of 1952 is unconstitutional, plaintiffs also ask the convening of a Three-Judge Court to hear and determine the action, pursuant to the provisions of 28 U.S.C. §§ 2282, 2284. Defendant, the United States Government, has cross-moved on affidavits under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C. for a summary judgment dismissing the complaint on grounds that there are no material issues of fact and defendant is entitled to judgment as a matter of law. The Government seeks a further order denying plaintiffs' motion for an injunction and vacating an existing temporary restraining order which was contained in plaintiffs' order to show cause which brought on plaintiffs' motion before this Court.

From the papers it appears, and the complaint so states, that plaintiffs are the subject of final administrative orders of deportation which have been outstanding for more than six months. Each plaintiff has been found deportable on the ground that, subsequent to entry, he was either a member of the Communist Party of the United States or a member of an organization advocating the overthrow of the Government. More than six months have elapsed from the entry of the orders of deportation, but the Government states that it is presently unable to execute the expulsion orders. Resultantly, plaintiffs have been permitted to remain at large, subject to the Attorney General's supervision under the authority contained in § 242(d) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252(d) and regulations promulgated thereunder. 8 C.F. R. § 242.2(d).

Pursuant to the above statute and regulation¹ the District Director of the Third District of the Immigration and Naturalization Service, issued a written Order of Supervision stating the supervisory regulations applicable to the plaintiffs in this action, and proper notice was given to the plaintiffs. The Order of Supervision includes Provision (3) which reads:

"That said alien shall not travel outside New York District, New York without furnishing written notice to the Assistant District Director for Deportation of the Immigration and Naturalization Service at the address shown in (5) 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 that Immigration Officer grants him written permission to begin the travel before the expiration of the 48-hour notice period."

Each of the plaintiffs has refused to sign the order pertaining to himself and this action was brought to set aside the Orders of Supervision.

The major issue on this motion appears to be the reasonableness of Provision (3) of the Orders of Supervision, and whether this provision was issued in conformity with the statute and the federal regulation, and whether there was an improper delegation of authority to the District Director. Although plaintiffs appear generally to attack the constitutionality of § 242(d) of the Immigration and Nationality Act of 1952, supra, their real objection appears directed to the reasonableness of this Order of Supervision, and they take the position that if this order is held properly issued under the statute, then the statute as so interpreted is unconstitutional. As stated in their affidavits, plaintiffs' position essentially is that Provision (3) goes beyond supervision reasonably calculated to assure their continued availability for deportation.

The Court has examined the statute, regulation and Provision (3) of the Orders of Supervision, and the affidavits of plaintiffs, and accepting all the facts that plaintiffs state in their affidavits as true facts, the Court cannot conclude that the Order of Supervision is unreasonable or constitutes an abuse of discretion or improper exercise of delegated authority.

The Supreme Court has recently considered § 1252(d) and there upheld the constitutionality of this section, at least to the extent that it assures reasonable inquiries and supervision which insure the continued availability for deportation of aliens who have been declared deportable.² United States v. Witkovich, 1957, 353 U.S. 194, 199, 200-201, 77 S. Ct. 779, 1 L.Ed.2d 765; see, also, Sentner v. Colarelli, D.C.E.D.Mo.1956, 145 F. Supp. 569, affirmed per curiam sub nom. Barton v. Sentner, 1957, 353 U.S. 963, 77 S.Ct. 1047, 1 L.Ed.2d 901. As so interpreted the statutory section came within the power of the Congress to exercise the sovereign right of the United States to regulate the admission and expulsion of aliens within its territory. See Carlson v. Landon, 1952, 342 U.S. 524, 534-537, 72 S.Ct. 525, 96 L.Ed. 547; United States v. Witkovich, D.C.N.D.Ill.1956, 140 F.Supp. 815, 817, affirmed 1957, 353 U.S. 194, 77 S.Ct. 779, 1 L.Ed.2d 765.

Resultantly, if the Order of Supervision imposed upon plaintiffs here is within the authorization of the statute and is reasonably calculated to inform the District Director of Immigration and Naturalization of the continued availability of the plaintiffs for deportation, then the Court holds that the provisions raise no constitutional issues. Section 242(d) of the Immigration and Nationality Act (see full text in footnote 1, supra) provides that an alien against whom a final order of deportation is outstanding shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General. Among other provisions, "such regulations shall include provisions which require any alien subject to supervision (1) to appear from time to time before an immigration officer * * * (3) to give information under oath as to his * * * 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 * * *." 8 U.S.C.A. § 1252(d).

Provision (3) of the Orders of Supervision applicable to these plaintiffs provides that plaintiffs will give 48-hour notice to the Assistant District Director for Deportation if they plan to leave the New York District, unless the immigration officer gives permission to leave sooner. Such a notice must state the places the plaintiff intends to travel and the dates of such travel. Such a provision certainly appears on its face to be a reasonable one calculated to apprise the Immigration Service of the whereabouts of the plaintiff, which they must know if an opportunity for deportation arises. The provision further appears to be within the meaning and intent of the statutory sections and particularly to be in accord with subdivision (4). The Court believes that the statutory authorization appears from the mere statement of the above provision. The Court cannot find from the affidavits and statements of the plaintiffs that it is unreasonable to require that such notice be given or that the Attorney General, acting through the District Director for Immigration, has abused his discretion in directing such supervision. It is particularly to be noted that this provision does not require that the plaintiffs secure the permission of the Director of Immigration to make a trip, but provides only that they give appropriate notice that they are making a trip. See Sentner v. Colarelli, supra. Plaintiffs, in their affidavits, state that it is unreasonable to require them to report on movements outside of the New York District when they may make longer trips within the District than in going to such places outside of the District as Newark, Palisades Park and other nearby countryside areas in Connecticut. Plaintiffs variously include a carpenter, a milk salesman, a house painter and a nurse, and all state that they have occasional jobs arising in nearby areas, particularly in New Jersey, or that they have families or relatives living in places such as Connecticut and that this provision for notice interferes considerably with the performance of their work tasks or the enjoyment of pleasant familial relationships. Resultantly, plaintiffs state that Provision (3) is a physical restriction upon their movements designed to fetter and to control their activities, to hamper them in the making of a living and to harass their families.

The Court agrees that in individual cases the provision for...