United States v. Esperdy

Decision Date22 September 1960
Citation186 F. Supp. 909
PartiesUNITED STATES of America ex rel. Gilberto Luis TRUJILLO-GONZALEZ, Relator, v. Peter A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Respondent.
CourtU.S. District Court — Southern District of New York

Isaac Sachs, Sachs & Spector, New York City, Joseph L. Andrews, New York City, of counsel, for relator.

S. Hazard Gillespie, Jr., U. S. Atty. for Southern District of New York, New York City, Roy Babitt, New York City, of counsel, for respondent.

MacMAHON, District Judge.

Petitioner is a native of Colombia, who entered the United States as a crewman at Jacksonville, Florida, on May 1, 1960. On May 5, 1960 petitioner's ship arrived in New York City where petitioner was given shore leave and eventually failed to depart with his vessel.

On June 17, 1960 petitioner was taken into custody as a deportable alien. He then applied to the Attorney General for an adjustment of his status to that of a permanent resident under Section 245 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1255.1 Section 245 provides for adjustment of status, in the discretion of the Attorney General, to those for whom a permanent resident visa is immediately available. Petitioner based his application upon the claim that he was a citizen of a non-quota country, Colombia, for which permanent resident visas are always available. He contended, therefore, that discretion should be exercised to permit him to adjust his status in the United States without the necessity of requiring him to depart and re-enter with a permanent resident visa issued by a consular officer abroad.

The Immigration and Naturalization Service held a hearing at which petitioner was represented by counsel to determine petitioner's eligibility for change of status under Section 245 and to determine whether or not the facts warranted such change in the discretion of the Attorney General. The District Director denied the application on two grounds: (1) petitioner was statutorily ineligible for a change of status because he was not a bona fide immigrant seaman, and (2) the facts did not warrant the exercise of discretion in favor of petitioner.

On appeal, the Regional Commissioner affirmed the finding of the District Director, but solely "on the ground that the facts do not warrant the exercise of discretion in favor of the applicant." Petitioner was then given an opportunity to depart voluntarily from the United States by August 4, 1960. On that date, this writ of habeas corpus was issued.

The court, on the return to a writ of habeas corpus, may review a challenged administrative determination. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868; Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. However, the scope of judicial review of administrative action by the Attorney General in immigration matters is narrowly restricted. United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Rizzi v. Murff, D.C.S.D.N.Y.1959, 171 F.Supp. 362, 367 and cases there cited.

An examination of the transcript of the hearing held by the Immigration Service on June 28, 1960 discloses an adequate basis for discretionary denial of petitioner's application for a change in his status. Thus, petitioner admitted that on one prior occasion in New Orleans he had missed another ship. At that time, he had returned to the pier, found that his ship had departed, and had immediately reported to the Immigration office. Immigration officials then took him to Gulfport, where he was put on board the vessel.

Petitioner's recent conduct in New York differs sharply from his earlier actions in New Orleans. In New York, he never returned to the pier, nor did he ever report to the Immigration office. His explanation on the hearing was that he was unable to find the Immigration office because he could not speak English. Yet he admitted that he was able to find his way to Baldwin, Long Island, where he obtained...

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1 cases
  • Matter of Barrios
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • January 22, 1963
    ...barred to alien crewmen. Entry as a "bona fide nonimmigrant" was a statutory requirement of section 245 at the time the alien in the Trujillo-Gonzalez case applied for relief under section 245. The District Director denied relief on two grounds (1) statutory ineligibility and (2) the facts ......

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