Sovich v. Esperdy

• Decision Date: 13 July 1962
• Citation: 206 F. Supp. 558
• Parties: Stefano SOVICH, Plaintiff, v. P. A. ESPERDY, as District Director of Immigration and Naturalization Service, New York District, Defendant.
• Court: U.S. District Court — Southern District of New York

206 F. Supp. 558

Stefano SOVICH, Plaintiff, v. P. A. ESPERDY, as District Director of Immigration and Naturalization Service, New York District, Defendant.

United States District Court S. D. New York.

July 13, 1962.

Major & Sintich, New York City (Anton G. Sintich, New York City, of counsel), for plaintiff.

Robert M. Morgenthau, U. S. Atty., for the S. D. of New York, New York City (Roy Babitt, Special Asst. U. S. Atty., of counsel), for defendant.

WEINFELD, District Judge.

The plaintiff brings this action for an order declaring arbitrary and capricious the Attorney General's refusal to stay his deportation to Yugoslavia on the claim of physical persecution pursuant to section 243(h) of the Immigration and Nationality Act.¹

The defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. upon the ground that there are no genuine issues of fact and that the defendant is entitled to judgment as a matter of law.

The plaintiff, now thirty-seven years of age, was born in a town in Italy which, under a treaty between Italy and the Allied Powers, became a part of Yugoslavia.

Plaintiff entered the United States as a crewman aboard a Panamanian vessel and overstayed his twenty-nine day leave. There is no issue as to the plaintiff's deportability. The basis of his application to the Attorney General that his deportation to Yugoslavia be withheld was he feared physical persecution because of his political and religious views and because he successfully "escaped" from Yugoslavia; further, that if returned there he would be barred from governmental employment for the same reasons.

The instant declaratory judgment suit rests essentially upon the same grounds and contains allegations that the refusal of the Attorney General's designate to grant the requested relief was the result of preconceived action and is arbitrary and capricious.

Upon a careful review of the transcript of the hearing afforded petitioner, at which he was represented by counsel of his own choice, and of the entire record of the proceedings, it appears that the plaintiff had a fair opportunity to present his application for relief under section 243(h); that the Attorney General's designate, the Regional Commissioner, fairly exercised his discretion,² that the order is sufficient on its face; that no errors of law were committed. In sum, that plaintiff was not denied procedural due process.³

Plaintiff resided in the town in which he was born from his birth in 1925 until he left Yugoslavia in 1956. His father, mother and sister still live in Yugoslavia. He served in the Yugoslav army as a private for nineteen months in 1948 and 1949. In civilian life he was a fisherman and farmer.

In September 1956, according to his testimony, he went, or as he terms it "escaped," with eleven others to Italy and was permitted to remain by the Italian authorities as a refugee. After a year he shipped as a seaman aboard a Panamanian vessel and served in that capacity for thirteen months. On one of the trips he was granted shore leave and entered the United States on October 12, 1958, but failed to return to his vessel upon the expiration of his leave and has remained here since. He is employed here as a kitchen helper.

At his hearing before the Special Inquiry Officer he testified that if returned to Yugoslavia he fears he will be jailed because he "escaped" and because he is opposed to Communism. He further testified that he never belonged to the Communist party; was never politically active; never publicly expressed himself against Communism in his town, but privately confided his opposition to friends. He believes that one of them reported him to the authorities and he was warned early in 1956 by a local official to desist from making such utterances and that he did so desist. He admitted that while in Yugoslavia he was never physically harmed or mistreated; was never imprisoned or charged with any crime. The Special Inquiry Officer was of the view that since the plaintiff was not in any way mistreated after his alleged utterances were reported to the authorities, it was reasonable to believe he would not be persecuted therefor upon his return. The Special Inquiry Officer did recognize the likelihood that plaintiff might be subjected to criminal prosecution for illegal departure from Yugoslavia under recognized juridical procedure, but concluded that this was not the physical persecution contemplated by section 243(h). Accordingly, he recommended that the plaintiff's application for a stay of deportation be denied because of failure to establish that he would be subjected to physical persecution if returned to Yugoslavia. The Regional Commissioner, after a review of the record, concurred in the recommendations and denied plaintiff's application.

The administrative power to withhold deportation vested in the Attorney General under section 243(h) is a broad one and, while subject to judicial review, its exercise may not be overturned by the courts except upon a showing that the alien has been denied appropriate procedural due process and fair consideration of his application.⁴ The record abundantly establishes that petitioner was afforded a full and fair opportunity to present evidence in support of his application, which he did, and that his various contentions were fully considered; that they failed to persuade the Regional Commissioner to exercise favorably the Attorney General's discretion affords no ground for judicial interference.

The plaintiff presses hard that if returned to Yugoslavia he will be denied government employment. But this matter also was considered by the Regional Commissioner. It appears that at no time while plaintiff was in Yugoslavia was he ever in government employment except for his military service. His regular occupation was that of farmer and fisherman. The asserted likely denial of government employment would not preclude his resumption of those activities in which he had engaged before his departure from Yugoslavia.

Finally, plaintiff seeks to raise an issue of fact as to the place to which he may be deported. He claims that he was born an Italian; that he is a native of Italy and that his deportation to Yugoslavia is therefore improper.

His complaint alleges that he was granted the privilege of voluntary departure to be effected no later than February 2, 1959 and specified Italy as the country to which he was to be deported in the event he was unable to effect his departure within the time granted; that he personally made efforts through the Italian Consulate General in New York to be admitted into Italy, but failed to secure admission either there or to some other non-Communist country; that the only country...