United States v. Esperdy

• Decision Date: 12 September 1967
• Docket Number: No. 67 Civ. 3286.,67 Civ. 3286.
• Citation: 276 F. Supp. 1
• 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

276 F. Supp. 1

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.

No. 67 Civ. 3286.

United States District Court S. D. New York.

September 12, 1967.

Edward Q. Carr, New York City, for relators; Robert L. Feldt, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, New York City, for respondent; Francis J. Lyons, Sp. Asst. U. S. Atty., of counsel.

OPINION

McLEAN, District Judge.

Relators seek by habeas corpus to review a decision of the District Director of the Immigration and Naturalization Service which directed that they be deported to Yugoslavia. Relators, who are husband and wife, were members of the crew of the Yugoslav vessel Goranka, which arrived in Portland, Oregon, on June 22, 1967. They were allowed to go ashore temporarily under so-called D-1 Conditional Landing Permits. They deserted the vessel and proceeded to New York where on June 29, 1967, they were apprehended by immigration officers at the residence of Venka Kordic's brother, Srecko Olic. The Service thereupon revoked their conditional landing permits pursuant to 8 U.S.C. § 1282(b) and 8 C.F.R. § 252.2. The Goranka was still in a United States port at that time, scheduled to sail on July 7, 1967.

Before they could be returned to the vessel, relators, who were and are represented by an attorney, applied to the District Director to withhold their deportation pursuant to 8 U.S.C. § 1253(h) on the ground that if they were returned to Yugoslavia they would be persecuted because of their political opinions. An immigration inspector interviewed them on July 6 and July 7, 1967. The District Director concluded that they had made "no showing of persecution," and directed that they be returned to the ship.

Relators then applied to this court for a writ of habeas corpus. In the meantime the Goranka sailed without them. Judge Bonsal held that the Service should grant relators a further interview and an opportunity to call witnesses and to offer evidence in support of their claim of persecution. He denied the applications for a writ, without prejudice to their later renewal.

Thereupon, in accordance with Judge Bonsal's decision, a further interview was held on August 8 before an immigration inspector. Both relators testified. They also called as witnesses relator Venka Kordic's two brothers, Srecko Olic and Tomislav Olic. At the conclusion of this interview, relators' attorney requested an adjournment in order to enable him to produce an "expert witness." The adjournment was granted until August 15.

On August 11 relators' attorney applied to an attorney for the Immigration Service, who had succeeded the immigration inspector as the examining officer, for a further adjournment in order to produce such a witness. An adjournment was granted until August 17. On August 17 no such witness appeared and the request of relators' attorney for an additional adjournment was denied.

The District Director made his decision rejecting relators' application on August 23, whereupon relators obtained from me a writ of habeas corpus returnable on August 29, 1967. I held argument on that day and further additional argument at my request on September 6 at which time I requested and obtained from the Service its files pertaining to the brothers Srecko Olic and Tomislav Olic.

Relators urge that they were entitled to a quasi-judicial hearing before a Special Inquiry Officer, rather than to a mere interview by an official designated by the District Director. Judge Bonsal rejected this same contention upon relators' previous habeas corpus application. Nevertheless, I have examined it anew.

The usual alien whom the government seeks to deport has a statutory right to a hearing. 8 U.S.C. § 1252(b). Such a hearing is conducted before a Special Inquiry Officer who passes, among other things, upon a request of the alien that his deportation be delayed because of possible persecution in the country to which he is to be sent. 8 C.F.R. § 242.17 (c).

But an alien crewman who has deserted his vessel and whose landing permit has been revoked prior to the vessel's departure is a special case. He is not entitled to a formal deportation hearing. He may be summarily returned to his vessel. 8 U.S.C. § 1282(b). In 1960 Judge MacMahon held in United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (S.D.N.Y.1960), that despite this section, such a crewman is entitled to a hearing before a Special Inquiry Officer with respect to his claim of persecution. Judge MacMahon reasoned that the crewman had a statutory right under 8 U.S.C. § 1253(h) to a determination of his claim. The only procedure then provided in the regulations by which such a determination could be obtained was a hearing before a Special Inquiry Officer. Hence the court held that the crewman should be afforded such a hearing.

Since that decision, a new regulation has been promulgated, 8 C.F.R. § 253.1 (e). It provides in pertinent part:

"Any alien crewman * * * whose conditional landing permit issued under § 252.1(d) (1) of this chapter is revoked who alleges that he cannot return to a Communist * * * country because of fear of persecution in that country on account of * * * political opinion may be paroled into the United States under the provisions of section 212(d) (5) of the Act for the period of time and under the conditions set by the district director having jurisdiction over the area where the alien crewman is located."

This regulation seems to have been drawn to fit the present situation. It applies to an alien crewman (1) whose conditional landing permit has been revoked prior to the departure of his vessel and (2) who seeks a determination of his claim of persecution. Respondent contends that this regulation means that such an alien crewman is not entitled to a hearing before a Special Inquiry Officer, but only to an "interview" by the District Director or his representative. The District Director has so interpreted the regulation in practice.

Section 253.1(e) does not...