Tacettin Say v. Del Guercio, 14976.

• Decision Date: 16 October 1956
• Docket Number: No. 14976.,14976.
• Citation: 237 F.2d 715
• Parties: TACETTIN SAY, Appellant, v. Albert DEL GUERCIO, Officer in Charge, Immigration and Naturalization Service, Los Angeles, California, and Henry G. Gratton, Deportation and Parole Officer, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 715 (1956)

TACETTIN SAY, Appellant, v. Albert DEL GUERCIO, Officer in Charge, Immigration and Naturalization Service, Los Angeles, California, and Henry G. Gratton, Deportation and Parole Officer, Appellees.

No. 14976.

United States Court of Appeals Ninth Circuit.

October 16, 1956.

Harry Wolpin, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max Deutz, Arline Martin, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge and LEMMON and HAMLEY, Circuit Judges.

DENMAN, Chief Judge.

Say, a merchant marine sailor, a citizen of Turkey, under a final order for deportation, but subsequently married to a citizen of the United States, appeals from the District Court's adverse decision in a declaratory judgment proceeding. The denied judgment he sought was that he was entitled to a stay of the order for his deportation and to an order reopening his case and modifying an order permitting him, as an alien so married, to go to Mexico to obtain a non-quota immigrant visa¹ to an order that he seek such entry from Canada.

Del Guercio's answer admits the marriage, the wife's seeking an order enabling Say to such a non-quota entry status and that his right to seek the non-quota status was granted with permission to leave the United States to secure a visa from the consular office in Mexico. The question here is whether he has shown grounds entitling him to an order changing the country of his non-quota entry from Mexico to Canada.

His complaint below states that on May 11, 1955, he went to Chula Vista, California, on the Mexican border, first to enter Tia Juana in Mexico across the line from Chula Vista and obtain from the United States Consulate there the necessary nonquota visa for a reentry into the United States and then to make his entry, but that at Chula Vista his attorney advised him that he could enter Tia Juana, Mexico only on the payment of a bribe, which his attorney refused to do. The allegation regarding his attorney's advice is put in issue by the answer. However, since no proof was offered no reason was established for Say's failure to enter Mexico for his non-quota entry into the United States.

On May 18, 1955, Say filed with the Immigration Service his motion for a reopening of the deportation proceeding and a stay of deportation to enable him to file a request that the place of his nonquota entry be from Canada rather than from Mexico. No allegation of the alleged need for a bribery to enter Mexico was offered to the Immigration Service, nor any other reason given why Say, being in Los Angeles, his right to go to Mexico and seek entry was not a sufficient exercise of the Bureau's obligation to him.

While the case was pending below, Say's second reopening motion was heard by a Special Inquiry Officer and denied on July 15, 1955. On appeal to the Board of Immigration Appeals, the board on August 25, 1955, held Say's motion to reopen was not supported by documentary proof. It dismissed the appeal and the "entire matter" was "remanded to the Special Inquiry Officer with the suggestion that he may wish to reconsider the proceedings". The Special Inquiry Officer "reviewed the entire record" and stated he saw no valid reason for altering his decision of July 15, 1955. We think Say had exhausted his remedy before the Immigration authorities.

The case was submitted to the District Court below on a record of the above facts, the complaint being treated as if amended to place them in issue.

The objection has been made that the district court lacked jurisdiction to entertain the complaint because the motion to reopen did not concern a final order. Before a hearing could be had on his motion to reopen, and on or about June 1, 1955, Say was ordered to surrender for deportation on June 6, 1955, at 11 A. M. That is to say, instead of staying the deportation, its immediate...