United States v. Esperdy

• Decision Date: 25 July 1967
• Docket Number: 67 Civ. 2592.
• Citation: 274 F. Supp. 873
• Parties: UNITED STATES of America ex rel. Tomislav KORDIC and Venka Kordic, Relators, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, or such other person, if any, who may have said relators in custody, Respondent.
• Court: U.S. District Court — Southern District of New York

274 F. Supp. 873

UNITED STATES of America ex rel. Tomislav KORDIC and Venka Kordic, Relators, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, or such other person, if any, who may have said relators in custody, Respondent.

67 Civ. 2592.

United States District Court S. D. New York.

July 25, 1967.

Edward Q. Carr, Jr., Attorney-in-Chief, The Legal Aid Society, by Robert L. Feldt, New York City, of counsel, for relators.

Robert M. Morgenthau, U. S. Atty. for S. D. New York, by James G. Greilsheimer, Asst. U. S. Atty., for respondent.

MEMORANDUM

BONSAL, District Judge.

Petitioners Tomislav Kordic (husband) and Venka Kordic (wife), citizens of Yugoslavia, seek writs of habeas corpus alleging that they are unlawfully detained in the Southern District of New York by P. A. Esperdy, District Director, Immigration and Naturalization Service, New York, New York (the District Director).

Petitioners are husband and wife who were employed as crewmen (cooks) on board the Yugoslav vessel M/V GORANKA. They last arrived in the United States on or about June 22, 1967 at Portland, Oregon. They were issued D-1 conditional landing permits as alien crewmen and were allowed to go ashore. They travelled by plane from Portland to New York without permission and on June 29 were located in Astoria, New York City. Their conditional landing permits were revoked and they were detained pursuant to 8 U.S.C. § 1282(b); 8 C.F.R. 252.2, and are now being held for deportation to Yugoslavia.

Petitioners are represented by the same attorney who contended before the Immigration and Naturalization Service that they were entitled to a hearing before a Special Inquiry Officer, which hearing was not accorded. On July 6 the husband was interviewed by an Immigration Inspector. For reasons which are not clear, his attorney did not appear until the interview had been concluded. The wife was interviewed on July 7, with her attorney present, and refused to answer questions on the advice of her attorney on the ground that she was entitled to a hearing before a Special Inquiry Officer.

Petitioners claim that if they are returned to Yugoslavia they will suffer political persecution. 8 U.S.C. § 1253(h). On July 6, 1967 the husband was interviewed in New York by an Immigration Inspector (see 8 C.F.R. 253.1(e)) who denied his claim on the ground that the allegations of possible persecution in Yugoslavia "do not appear to be convincing." The District Director reviewed the transcript of the husband's interview by the Immigration Inspector and on July 6 endorsed the transcript, "No showing of persecution made — Return crewman to ship — Wife has failed to appear for hearing although offered opportunity to do so — Return her to ship also."

Petitioners contend that they are entitled to have their claims heard by a Special Inquiry Officer of the Immigration and Naturalization Service rather than by an Immigration Inspector who has investigatory or prosecutorial duties. This contention was raised by petitioners' attorney on July 6 at the end of the husband's interview and on July 7 when he advised the wife not to answer questions asked by the Immigration Inspector. Petitioners urge that they are entitled to a hearing before a Special Inquiry (non-enforcement) Officer, relying on United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (S.D.N.Y.1960); 8 U.S.C. § 1253(h); 8 C.F.R. 253.1(e), and on the Administrative Procedure Act, 5 U.S.C. § 1004. On the other hand, respondent contends that an interview or hearing before an Immigration Inspector is sufficient since 8 C.F.R. 253.1(e) provides for parole "into the United States * * * under the conditions set by the district director * * *" giving the District Director discretion in handling claims by alien crewmen of political persecution and at such an interview or hearing, petitioners may be represented by counsel,¹ may testify and may present documentary evidence and witnesses to support their claim and if their claim is denied they may obtain judicial review. See Vucinic v. United States Immigration and Naturalization Service, 243 F. Supp. 113 (D.C.Oregon 1965); cf. Maggiore Bakery, Inc. v. Esperdy, 238 F. Supp. 374 (S.D.N.Y.1964).

Since the promulgation of the current regulations under § 1253(h), 8 C.F.R. 243 (1967), alien crewmen are not entitled to a hearing before a Special Inquiry Officer. See Vucinic v. United States Immigration and Naturalization Service, supra; Glavic v. Beechie, 225 F.Supp. 24 (S.D.Texas 1963), aff'd per curiam, 340 F.2d 91 (5th Cir. 1964). Section 1253(h) authorizes the Attorney General to withhold deportation of an alien "to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion * * *" but does not provide for a hearing...