United States v. Esperdy

• Decision Date: 11 August 1964
• Parties: UNITED STATES of America ex rel. S. Hal MERCER on Behalf of Lydie Michel, Relator, v. P. A. ESPERDY, District Director, Immigration and Naturalization Service, New York District, Respondent.
• Court: U.S. District Court — Southern District of New York

234 F. Supp. 611

UNITED STATES of America ex rel. S. Hal MERCER on Behalf of Lydie Michel, Relator, v. P. A. ESPERDY, District Director, Immigration and Naturalization Service, New York District, Respondent.

United States District Court S. D. New York.

August 11, 1964.

Thomas J. Cleveland, S. Hal Mercer, Brooklyn, N. Y., for relator.

Robert Morgenthau, U. S. Atty., S. D. N. Y., New York City, Roy Babitt, Sp. Asst. U. S. Atty., Immigration and Naturalization Service, New York City, of counsel, for respondent.

TENNEY, District Judge.

Relator, a 20-year old female alien and citizen of the Republic of Haiti, arrived in the United States on or about September 27, 1961, and was paroled as a visitor until October 4, 1961. On that date, she was admitted to New York as a visitor under bond and was thereafter granted until April 26, 1962, to depart from the United States.

When relator failed to depart and remained after that date without permission, deportation proceedings were instituted against her pursuant to Section 241(a) (2) of the Immigration and Nationality Act (herein referred to as "Act"), 8 U.S.C. § 1251(a) (2) (1953); to wit, that she was an alien who, after admission as a non-immigrant, remained in the United States for a longer period than was authorized.

At the hearings before a Special Inquiry Officer — commencing on June 5, 1962, and extending until June 13, 1962 — relator was represented by an attorney and spoke through a French-language interpreter. She conceded alienage and deportability but sought the privilege of voluntary departure.

During the course of the proceedings, relator, by an application dated June 7, 1962, sought a stay of deportation if, as a result of the hearings, she was ordered deported. She based her application on the fact that her brother had been forced to flee for his life from Haiti due to his political activities; that in the event she were deported no other country would accept her and she would be forced to return to Haiti where she feared for her safety. However, on June 13, 1962, the last day of the hearings, when the Special Inquiry Officer was about to begin hearing testimony on her application, relator, through her attorney, withdrew said application for a stay of deportation and relied solely on the prior application for the privilege of voluntary departure.

In his decision, the Special Inquiry Officer granted her application for voluntary departure in lieu of deportation, but provided in his order that in the event of her failure to depart at the time fixed, the privilege of voluntary departure would be withdrawn and she would immediately be deported to Columbia or, if Columbia refused to accept her, to Haiti. No appeal was taken from that decision.

Relator did not depart voluntarily on July 16, 1962, the time fixed by the Service, and on August 8, 1962, a deportation order to Hiati was issued, Columbia having refused to accept her. She was notified of that action on August 16, 1962.

Thereafter, on September 12, 1962, pursuant to the warrant of deportation, relator was placed aboard a Pan-American flight at Idlewild International Airport, destined for Haiti. The plane set down in Kingston, Jamaica, where relator remained as an in-transit passenger for one hour. She was then placed aboard her connecting flight to Port-au-Prince, Haiti. However, due to extreme turbulence, the plane was diverted back to Miami. Upon her arrival in Miami, the flight was cancelled for mechanical difficulty and relator was erroneously admitted, until October 11, 1962, by the Immigration Officer in Miami as a non-immigrant visitor for pleasure, the officer being unaware of relator's deportation status.

Relator thereafter proceeded to New York where it would appear she established residence.

On September 5, 1963, the Immigration and Naturalization Service (herein referred to as "Service"), by Order to Show Cause and Notice of Hearing, charged relator with being subject to deportation in that she had re-entered the country without special permission after a prior arrest and deportation.

Prior to the hearing, relator submitted an application dated September 24, 1963, requesting a stay of deportation to Haiti, pursuant to Section 243(h) of the Act, which authorizes the Attorney General to withhold deportation of an alien to any country "in which in his opinion the alien would be subject to physical persecution." She based her application on the fact that her brother and other members of her family had openly opposed the Duvalier regime.

In support of her assertions, relator submitted a detailed affidavit of her brother, setting forth his activities while he was in Haiti and subsequent to his flight from that country. It appears therefrom that he had been imprisoned in Haiti on two occasions for taking an active part "in all phases of democratic testimony against the repressive regime of Duvalier", and that eventually he and other members of his family had been forced to seek political asylum in the Venezuelan Embassy in Port-au-Prince "in order not to be subjected to further physical persecution." The affidavit further asserted that he entered the United States as a political refugee in 1959 and that he served as Secretary General of the National Union of Haitian Workers in Exile. The objectives of said organization, as set forth in its registration statement on file in the Justice Department, Washington, D. C., "is mainly fighting for the restoration by democratic means of democracy and freedom in Haiti." It listed "underground groups in Haiti" as its foreign principals. Relator's brother was also the director of publications of said organization.

In her application, relator asserted that, by reason of the foregoing activities of her brother, she feared physical persecution if she were forced to return to Haiti.

It would seem, from the record before this Court, that no action was taken until March 10, 1964. On that date, P. A. Esperdy, District Director of the Service, ordered the cancellation of the Order to Show Cause dated September 5, 1963. The order was cancelled on the grounds that the original deportation order of August 8, 1962 was still outstanding, there having been no entry affected by relator in Kingston, Jamaica, or any other foreign place, and, further, that her admission in Miami, on September 12, 1962, as a visitor for pleasure, was an administrative error. Thus, in effect, there had been neither an execution of the original deportation order nor a new entry, and relator was held to be presently deportable under the original deportation order.

Relator thereafter submitted two motions to the Service. The first, dated March 10, 1964, sought, in not too-precise language, multiple relief — including an order opening all deportation proceedings, staying deportation, reinstating the September 24, 1963 application for a stay on the grounds of physical persecution under Section 243(h) of the Act, and/or granting the privilege of voluntary departure. It is not clear from the papers whether this motion was filed or served on the Service or whether it was ever pursued by relator, since, on March 18, 1964, relator filed a second and more complete motion.

This latter motion, which included as a supporting document an affidavit of relator's brother, was for an order reopening the hearing for the purpose of withholding deportation under Section 243(h) of the Act.

It would appear that the thrust of both motions was that by the arbitrary cancellation of the September 5, 1963 proceedings, without affording relator an opportunity to press her application under Section 243(h) of the Act, the Service "violated the rudiments of fair play" and denied relator her rights. Furthermore, that the decision cancelling those proceedings made no mention, or disposition, of her application to stay deportation for fear of physical persecution.

The Special Inquiry Officer denied the motions to reopen the June 1962 proceedings, and for reconsideration of the applications for voluntary departure and stay of deportation.

The motion for voluntary departure was denied because relator had been accorded that privilege in June of 1962 and had abused it by not departing.

Regarding the motion to reopen the proceedings, the Special Inquiry Officer was of the opinion that the present application to withhold deportation under Section 243(h) of the Act was the same application, though more extensive in words, as that made in June of 1962, and subsequently withdrawn by relator.

Under 8 C.F.R. § 242.22 (Supp.1963) "a motion to reopen will not be granted unless the Special Inquiry Officer is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing." Pursuant to that Section, the Special Inquiry Officer held that:

"The evidence now sought to be presented was available. She was afforded an opportunity to do so at the hearing. No new circumstances have arisen since the hearing which justifies the request to reopen the hearing for reconsideration of the application for withholding of deportation to Haiti." He further held that, even if he were to consider the present application as being a new one, it would be denied as not having been made within the ten-day period specified in 8 C.F.R. § 242.17(c) (Supp.1963), and thus untimely.

Relator appealed to the Board of Immigration Appeals which dismissed her appeal on April 29, 1964. Thereafter, on May 1, 1964, she petitioned this Court for a Writ of Habeas Corpus.

The gravamen of the within petition would seem to be that the Service acted arbitrarily and capriciously in refusing to reopen the 1962 proceedings to permit relator to submit her application for a stay of deportation under Section 243(h) of the Act, especially since lack of execution of the 1962 order, and the fact that relator still was in the United States on the date of her application was not due to any...