United States v. Mackey

• Decision Date: 25 August 1953
• Docket Number: Civ. 86-57.
• Citation: 115 F. Supp. 45
• Parties: UNITED STATES ex rel. MATRANGA v. MACKEY, Commissioner of Immigration and Naturalization et al.
• Court: U.S. District Court — Southern District of New York

115 F. Supp. 45

UNITED STATES ex rel. MATRANGA v. MACKEY, Commissioner of Immigration and Naturalization et al.

Civ. 86-57.

United States District Court S. D. New York.

August 25, 1953.

Alfred E. Santangelo, New York City, Peter C. Giambalvo, Brooklyn, N. Y., Joseph S. Hertogs, San Francisco, Cal., and Frank Desimone, Beverly Hills, Cal., for relator.

J. Edward Lumbard, U. S. Atty. for the Southern District of New York, New York City (Harold J. Raby, Asst. U. S. Atty., and Lester Friedman, Attorney, Immigration & Naturalization Service, Dept. of Justice, New York City, of counsel), for respondent.

DIMOCK, District Judge.

This is a habeas corpus proceeding by an alien now held by immigration officials under a warrant of deportation. He has raised numerous points of which he now presses two: first, that the finding as to his deportability was unlawful in that the basis of deportation was improper and the hearing he was afforded was unfair in certain respects and, second, that there was error in the denial of his application for suspension of deportation in that confidential information was considered by the Board of Immigration Appeals and the denial was an abuse of discretion.

Taking up these contentions I conclude that the finding as to deportability must be upheld.

Relator did not raise the question of the impropriety of the basis of deportation in his administrative appeals. While I doubt his right to present this question on this writ before having exhausted his administrative remedies with respect to it by raising the point before the appropriate administrative bodies, I will briefly consider it.

Prior deportation proceedings were commenced against relator in 1942, but he was granted the privilege of voluntary departure and pre-examination instead of being formally deported. He was given permission to go to Canada to apply for an immigrant visa and to return. If the visa had been granted, his status would have become that of a legally admitted alien and he would not be now subject to deportation because of improper entry. In December of 1945 he went to Canada for one day in order to apply for the immigrant visa. The visa was not granted and he returned to the United States without one. The ground for his deportation warrant is that he at that time entered the United States without a valid immigrant visa and is deportable under sections 13 and 14 of the Immigration Act of May 26, 1924, 8 U.S.C. §§ 213, 214.

Relator argues that this return was not an entry within the meaning of the statute. He voluntarily entered Canada with the knowledge and intention of entering a foreign country. It is true that he departed for a short time and that it was done with the hope, intention, and, indeed, for the purpose, of returning to the United States for permanent residence. Nevertheless, his return constituted an entry within the meaning of the statute. Schoeps v. Carmichael, 9 Cir., 177 F.2d 391, 396. The fact that his departure was under the pressure of a deportation proceeding should not change the result. See United States ex rel. Bartsch v. Watkins, 2 Cir., 175 F.2d 245; United States ex rel. Rubio v. Jordan, 7 Cir., 190 F.2d 573. It would be anomalous to hold that a return which would have constituted a legal entry if accomplished under a visa did not amount to an entry of any kind in the absence of the visa. At the least, the circumstances here are not so fortuitous and extraordinary as those which the Supreme Court found in Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17, to constitute an exception to the general rule that every return of an alien from a foreign country to the United States constitutes an entry within the meaning of the statute.

Relator complains that the administrative hearing was unfair in that evidence was improperly admitted and that the hearing officer prejudged his case. He supplies no particulars that support these claims. On reviewing the record of the hearing I find no basis for concluding that the hearing officer acted unfairly. Likewise, I find no such errors with respect to evidence as would render the hearing unfair. Schoeps v. Carmichael, 9 Cir., 177 F.2d 391, 395, supra.

A more troublesome point is raised by the conceded consideration of evidence outside of the record by the Board of Immigration Appeals in affirming the denial of relator's application for suspension of deportation. The Board exercised the discretion it has under section 19(c) of the Immigration Act of 1917, as amended, 8 U.S.C. 155(c), continued in effect as to pending cases by section 405(a) of the Immigration and Nationality Act of 1952 8 U.S.C.A. § 1101 note, and concluded that relator was not a worthy subject for that relief.

The Board in considering this evidence relied in part upon the new regulations issued pursuant to the Immigration and Nationality Act of 1952, and expressly referred to 8 C.F.R. (Revised 1952) § 244.3, which authorizes the use of confidential information if in the opinion of the Board disclosure would be prejudicial to the public interest, safety, or security. Respondent did not in argument contend that this regulation was applicable. If it had been I would doubt that the conditions it prescribes had been complied with. I agree, however, that it is inapplicable. This application was made before the enactment of the Immigration and Nationality Act of 1952 and section 405(a) of that Act, above referred to, provides that the Act shall not affect such applications. The regulations having been issued under the Act, must, I should think, follow the same pattern and the question must be resolved on the basis of the former regulations.

The Court of Appeals of this circuit has recently had occasion to discuss, although not decide, the question of the legality of the Board's consideration of matters outside the record on applications for suspension of deportation. United States ex rel. Accardi v. Shaughnessy, 206 F.2d 897. In that case, the court distinguished the case of Alexiou v. McGrath, D.C.D.C., 101 F. Supp. 421, and assumed arguendo that "since the Attorney General has provided by regulations the procedure by which a deportable alien is accorded a hearing on his application to suspend deportation, that he is entitled to procedural due process in the conduct of such hearing; that is, the requirements of a fair hearing must be met."

The Alexiou case is relied on by relator for the proposition that confidential information outside of the record may not be considered in determining applications for suspension of deportation. The Alexiou case differs from that at bar in that the court was there concerned with eligibility for suspension of deportation rather than its discretionary suspension and was there concerned with...