Tom We Shung v. McGrath
| Citation | 103 F. Supp. 507 |
| Decision Date | 27 February 1952 |
| Docket Number | Civ. A. No. 276-50. |
| Parties | TOM WE SHUNG v. McGRATH, Atty. Gen., et al. |
| Court | U.S. District Court — District of Columbia |
Jack Wasserman, Washington, D. C., Andrew Reiner, New York City, of counsel, for plaintiff.
Charles M. Irelan, U. S. Atty., Ross O'Donoghue, Asst. U. S. Atty., District of Columbia, Washington, D. C., for defendants.
This is an action for a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, and for review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., in connection with the exclusion of a Chinese alien. The plaintiff in his complaint requests "an order declaring that the hearing accorded the plaintiff before the Board of Special Inquiry was unfair, null and void, and further declaring that the plaintiff Tom We Shung is the blood son of Tom Wing and is admissible to the United States under Public Law 271, 79th Congress (8 U.S.C. 232)."
The plaintiff contends that the hearing before the Board of Special Inquiry which heard his case was null and void for the reasons that the Board was improperly composed of two immigrant officials and a clerk-stenographer; that the Board was subject to the control of officials engaged in investigatory functions, in violation of Section 5(c) of the Administrative Procedure Act, 5 U.S.C.A. § 1004(c); and that the Board was not composed of hearing examiners appointed in conformity with Section 11 of the Act, 5 U.S.C.A. § 1010. Plaintiff further contends that the finding of the Board should be set aside under the provision of Section 10(e) (B) (5) of the Act, 5 U.S.C.A. § 1009(e) (B) (5), because it was not supported by substantial evidence or any evidence whatsoever.
Even before enactment of Public Law 843, 81st Congress, 8 U.S.C.A. § 155a, which specifically exempted immigration proceedings from the hearing provisions of the Administrative Procedure Act, they had been held inapplicable to exclusion proceedings before a Board of Special Inquiry, since Section 7(a) of the Act, 5 U.S.C.A. § 1006(a), specifically exempts from these provisions proceedings before "boards or other officers specially provided for by or designated pursuant to statute."1
Since Section 10(e) (B) (5) is confined to hearings held pursuant to the Act, it would be inapplicable to the hearing here involved, even if Section 10 be held applicable to immigration proceedings.
Since the complaint presents an actual controversy between the alien and immigration officials over the plaintiff's eligibility under 8 U.S.C.A. § 232 for admission to the United States, which enables the plaintiff to seek judicial review under the Declaratory Judgment Act, 28 U.S.C.A. § 2201,2 it is not necessary to consider the applicability of the judicial review provision of the Administration Procedure Act.
Under the express provisions of the statute, the decision of the Board of Special Inquiry is final, when affirmed on administrative appeal, and is reviewable by the courts only when the administrative officers have manifestly abused the power and discretion conferred on them.3
The scope of review under the facts in this case—an exclusion case involving the attempted entry into this country by a Chinese alien—is therefore limited to a determination of (a) whether the statutory requirements have been complied with, and (b) whether there has been an abuse of discretion by the immigration authorities. This is so whether the plaintiff's action be considered under the Declaratory Judgment Act or under Section 10(e) of the Administrative Procedure Act.
I find that there has been compliance with the applicable statutory requirements, and that the Board of Special Inquiry was properly constituted. I further find that, even if it were not so constituted, no timely objection was made thereto, although the plaintiff was admittedly represented by counsel...
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United States v. Murff
...on which it became effective, December 28, 1945. 2 28 U.S.C.A. § 2201. 3 60 Stat. 243 (1946), 5 U.S.C.A. § 1009. 4 Tom We Shung v. McGrath, D.C.D.C. 1952, 103 F.Supp. 507. 5 Tom We Shung v. Brownell, D.C.Cir., 1953, 207 F.2d 132. 6 1953, 346 U.S. 906, 74 S.Ct. 237, 98 L. Ed. 405. The Court ......
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United States v. Reid
...might otherwise result. See Hormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037; but cf. Tom We Shung v. McGrath, D.C.D.C. 1952, 103 F.Supp. 507. On a fundamental question going to the essence of due process, petitioner should not be penalized for failure of counsel to......
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Brownell v. We Shung
... ... Shung first sought judicial review of this order by a declaratory judgment action instituted before the effective date of the Immigration and Nationality Act of 1952. His complaint was dismissed on the ground that the order was valid. Tom We Shung v ... McGrath, D.C., 103 F.Supp. 507, affirmed sub nom. Tom We Shung v. Brownell, 93 U.S.App.D.C. 32, 207 F.2d 132. We vacated the judgment and remanded the cause to the District Court with directions to dismiss it for lack of jurisdiction, 346 U.S. 906, 74 S.Ct. 237, 98 L.Ed. 405, on the authority of Heikkila ... ...
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Tom We Shung v. Brownell
...were unfair and a legal nullity. These questions are fully dealt with by District Judge Keech in an opinion reported in 1952, 103 F. Supp. 507. We agree with his conclusions (1) that the Board was properly constituted, if not, that failure to make timely objection to its composition rendere......