Spinella v. Esperdy

• Decision Date: 11 October 1960
• Citation: 188 F. Supp. 535
• Parties: Michael SPINELLA, Plaintiff, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Southern District of New York

188 F. Supp. 535

Michael SPINELLA, Plaintiff, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service, Defendant.

United States District Court S. D. New York.

October 11, 1960.

Leon Rosen, New York City, for plaintiff.

S. Hazard Gillespie, Jr., U. S. Atty. for Southern Dist. of New York, New York City, for defendant. Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel.

LEVET, District Judge.

The defendant has moved for summary judgment.

In his complaint, the plaintiff states:

"First: That this is an action for a Declaratory Judgment under the Declaratory Judgment Act (28 U. S.C. § 2201), for review under the Administrative Procedure Act (5 U.S.C. § 1009) and for a permanent injunction. It arises under the Immigration and Nationality Act of 1952, particularly Section 249 (8 U. S.C. § 1259) and under the Constitution of the United States, particularly Article I, Section 9, Clause 2; Article III, Section 2; and the Fourth, Fifth and Eighth Amendments thereto. Jurisdiction of this Court is based upon the above-named provisions, Section 279 of the Immigration and Nationality Act (8 U. S.C. § 1329) and 28 U.S.C. § 1331."

The plaintiff, a native and citizen of Italy, alleges that he was admitted to the United States in 1899 when four years old; that he was a lawful resident of the United States, but was unlawfully deported by agents of the United States Immigration and Naturalization Service on June 12, 1953.

The complaint states:

(1) That the Immigration and Naturalization Service initiated deportation proceedings against plaintiff on April 1, 1952, charging that plaintiff on February 1, 1952, had entered the United States without a visa and without inspection.

(2) That after a hearing on said charges and on plaintiff's application for suspension of deportation and for pre-examination and voluntary departure, an order of deportation was entered by the hearing officer on May 9, 1952, based on said charges, and denying plaintiff's application for discretionary relief from deportation.

(3) The complaint further states that plaintiff appealed from the above order of deportation and denial of discretionary relief to the Board of Immigration Appeals, which dismissed said appeal on November 7, 1952. A subsequent motion for reconsideration, filed on November 29, 1952, was denied on February 19, 1953.

(4) The plaintiff further alleges that upon the commencement of the aforesaid deportation proceedings, he was imprisoned and denied bail; that a petition for a writ of habeas corpus for release on bail pending an administrative determination of deportability was dismissed by the District Court for the Southern District of Florida, and that upon an appeal therefrom to the Court of Appeals of the Fifth Circuit, this appeal was dismissed as moot, United States ex rel. Spinella v. Savoretti, 5 Cir., 1953, 201 F.2d 364, and a petition for certiorari was denied by the United States Supreme Court on June 8, 1953, 345 U.S. 975, 73 S.Ct. 1124, 97 L.Ed. 1390.

(5) Thereafter, plaintiff was seized in Washington, D. C., taken to Maryland and then to New York, where he was deported by plane to Italy.

(6) Now plaintiff claims that defendant Esperdy has threatened to arrest him, hold him without bail, and deport him from the United States, pursuant to Section 242(a) of the Immigration and Nationality Act (8 U.S.C.A. § 1252(a)). Nowhere does plaintiff assert in plain language that he now resides in the United States. The only statements remotely resembling this in the complaint are as follows:

"Third: * * * Since that time 1899 he has been a lawful permanent resident of the United States."

"Fifth: * * * Plaintiff alleges that said deportation was illegal, null and void and that while he has resided abroad pursuant thereto, he has in fact maintained a continuous residence in the United States for purposes of Section 249(b) of the Immigration and Nationality Act."

The records of the Immigration Commissioner submitted to this court on this motion show the following:

Proceedings before Administrative Bodies

(1) Extensive deportation hearings were held before a hearing officer, commencing on April 8, 1952, at which plaintiff was represented by experienced counsel. The hearing officer concluded that on February 1, 1952, plaintiff had entered the United States at Miami, Florida, without an immigration visa and had claimed to be a citizen, knowing this claim to be false; that he was thereby subject to deportation; and that the plaintiff's application for (discretionary) suspension of deportation should be denied.

(2) On September 15, 1952, a request was made before the Board of Immigration Appeals to reopen the hearing to submit additional evidence which, as conceded by plaintiff's then counsel, pertained solely to the question of discretionary relief. His attorney appears to have admitted at this hearing that Spinella was subject to deportation on the ground that he had no proper visa at the time of his last entry.

(3) On or about November 7, 1952, the Board of Immigration Appeals, in a five and one-half page report, dismissed the appeal, denied the application for suspension, concluded that the plaintiff was deportable, and that if only as a matter of discretion no relief should be granted. The record of plaintiff was cited as establishing deportability on the charges in the warrant of arrest.

(4) A subsequent motion to reconsider this decision was denied by the Board of Immigration Appeals on February 19, 1953. On June 11, 1953, a warrant of deportation was issued by the Commissioner of Immigration at Washington, D. C.

(5) Later, on or about March 6, 1959, the plaintiff made application to the United States Department of Justice, Immigration and Naturalization Service, for permission to reapply for admission into the United States. This application was denied on March 25, 1959, which decision was affirmed by the Acting Regional Commissioner, Southeast Region, on July 8, 1959. No further action was taken on the application.

Habeas Corpus Proceedings in the United States District Court for Florida

(1) On or about April 4, 1952, plaintiff, as relator, petitioned the United States District Court for the Southern District of Florida, Miami Division, for a writ of habeas corpus, which was denied by that court. On April 15, 1952, plaintiff filed an appeal from the district court's denial to the Court of Appeals for the Fifth Circuit.

(2) On or about June 15, 1952, plaintiff submitted a petition for writ of habeas corpus for bail, pending the appeal, to Mr. Justice Black of the United States Supreme Court and secured an order on June 25, 1952 for $10,000 bail, which plaintiff thereupon posted.

(3) On or about January 29, 1953, the Fifth Circuit, in a per curiam decision, dismissed the appeal from the district court's decision as moot, stating in part: "We think it clear: that appellant has exhausted his administrative remedies; that the deportation order is now final; that the question raised by his appeal, whether the court erred in denying him bond pending the deportation proceedings, has become moot; and that the appeal should be dismissed." 201 F.2d 364.

Declaratory Judgment and Injunction Proceedings in the District Court of the District of Columbia

(1) Sometime in 1956, plaintiff instituted an action against the Attorney General in the United States District Court of the District of Columbia seeking (1) to declare the deportation order, (2) the order denying discretionary relief, and (3) the ouster, illegal; and (4) to enjoin the defendant from interfering with plaintiff's return to the United States. Upon application for preliminary injunction to permit plaintiff's return to the United States to press the action, Judge Letts of the District Court of the District of Columbia denied the motion on June 23, 1956.

(2) On June 14, 1957, United States District Judge McGuire, in the aforesaid action in the District of Columbia, denied plaintiff's motion for summary judgment and granted that of the defendant, the Attorney General. After reviewing the proceedings theretofore taken, Judge McGuire declared:

"The petitioner appears to make much of the fact that the authorities acted in relation to the execution of the warrant before the mandate of the Court of Appeals had been received. This is of no moment. The original proceeding in the Southern District of Florida was not a proceeding to challenge the validity of his seizure as an immigrant without a visa (he admits this was proper and was convicted in criminal proceedings arising out of the representations made) but a habeas corpus proceeding in the nature of an application for bail which became moot by the action of Mr. Justice Black. So the failure to wait for the filing of a mandate which he now claims to be critical means nothing at all. The administrative proceedings were long since over and had been resolved against him. He took no legal steps in relation to them. Indeed, he even asked for voluntary departure and that was denied as it should have been on the record. Nothing remained. That being the situation, the warrant of deportation became immediately operable. It was immediately executed, as it should have been, and his deportation was therefore one in pursuance of law." (See unreported memorandum decision, p. 3.)

(3) On February 13, 1958, an appeal by Spinella from the District Court of the District of Columbia to the Court of Appeals for that circuit was dismissed.

The plaintiff now contends that the order of deportation upon which he was deported was illegal, null and void for the following reasons:

(1) No visa for plaintiff's return from Havana, Cuba, was required under Sections 175.44(f) and 176.202(h) of Title 8, Code of Federal Regulations.

(2) Plaintiff did not enter the United States without inspection, as charged. The record of the administrative hearing (a) contains insufficient evidence of false and misleading...