United States v. Miller
Decision Date | 20 April 1948 |
Docket Number | Civ. No. 45-297. |
Parties | UNITED STATES ex rel. CAMMARATA v. MILLER et al. |
Court | U.S. District Court — Southern District of New York |
Herbert Zelenko, of New York City, Anthony Calandra, of Newark, N. J., and Sidney Kansas, of New York City, for petitioner.
John F. X. McGohey, U. S. Atty., of New York City (Harold J. Raby, Asst. U. S. Atty., of New York City, of counsel), for respondents.
This is a proceeding which we have accepted as a bill or petition filed on behalf of Frank Cammarata, seeking judicial review of a final order of deportation made by the Commissioner of Immigration and Naturalization (hereinafter called the "Service"), pursuant to the provisions of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1001 et seq., and hereinafter referred to as the "Act". With this pending, there has also been filed another petition (which we accept as an amendment to the original bill), to review a determination of the Commissioner refusing to allow the release of Cammarata under bond until the final determination and decision of this court on the first petition.
It is contended in opposition that this court is without jurisdiction to review the final order of deportation by proceedings instituted under the Act, and that petitioner's only remedy lies by writ of habeas corpus. It is argued that the provisions of the Act may not be applied to deportation proceedings because the statute provides that the decision of the Attorney General, (and, therefore, that of the Commissioner of Immigration and Naturalization as his duly delegated subordinate), "shall be final." § 19 of The Immigration Act of 1917, as amended, 8 U.S.C.A. § 155.
The pertinent portions of § 10 of the Act, 5 U.S.C.A. § 1009, are:
* * * * * *
"(b) The form of proceeding for judicial review shall be any special statutory review proceeding * * * or, in the absence * * * thereof, any applicable form of legal action * * *.
* * * * * *
* * *"
It is further provided by § 10, § 1009 (e) (B) of the Act that the court upon review shall "hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. * * *"
In United States ex rel. Lindenau v. Watkins, S.D.N.Y. Sept. 1947, 73 F.Supp. 216, it was held that the provisions of § 10 of the Act were applicable to judicial review of proceedings had by the Commissioner of Immigration and Naturalization directing deportation pursuant to the Immigration Law, 8 U.S.C.A. §§ 154, 156. Although the matter came before the court in that case on issues raised by writ of habeas corpus, and not as here by bill for review under the Act, it quite clearly appears that the district court was of the opinion that the provisions of the Act should be applied in both instances. In United States ex rel. Trinler v. Carusi, D.C.Pa., June 1947, 72 F.Supp. 193, judicial review was denied. There, the court held that § 10 of the Act "is inapplicable to the extent that judicial review is limited by statutes, and that, since the immigration statutes deny the right to judicial review except for the writ of habeas corpus, no other character of remedy is available under this section." (U. of Pa.L.Rev. Vol. 96, p. 269, 1947). And, concerning this holding the following observation was made: (U. of Pa.L.Rev., supra)
The Circuit Court of Appeals, Third Circuit, 166 F.2d 457, 461, reversed this holding of the District Court in United States ex rel. Trinler v. Carusi, supra, by decision rendered on February 16, 1948, the court stating:
and, further
We hold that the Act is applicable to the deportation proceedings here involved.
We now come to a consideration of the objection raised that this court is without power to release petitioner under bond pending determination of this bill for review.
We have determined that this court may entertain the bill for review under the provisions of the Act. Having done so, it seems to follow that as an incident to this power the court may do all acts necessary to accomplish and grant equitable relief to the petitioner, while his petition is pending before it. Here, it appears that the one form of equitable relief which might well be granted is the temporary release of petitioner under bond. One of the decisions of the Service which petitioner seeks to review is the denial to him of temporary release under bond. The granting of the prayer covering this portion of his bill would in itself effect his release under bond.
Still another objection to the jurisdiction of this court is made by respondents, in the following language:
This objection on jurisdictional grounds starts off with the proposition that the mere naming of the Commissioner of Immigration and the Attorney General, in this proceeding, does not confer jurisdiction over them, and, that since the Commissioner and the Attorney General are not inhabitants of this district, they are not actual parties to this proceeding. Transcontinental & Western Air v. Farley, 2 Cir., 71 F.2d 288; Butterworth v. Hill, 114 U.S. 128, 5 S.Ct. 796, 29 L.Ed. 119.
The petitioner is presently confined within this district, at Ellis Island. Habeas corpus would properly lie in this district. The Act was intended to enlarge and amplify the judicial power of review, not to restrict or limit it further. We hold it was the intention of the legislature to permit the filing of a petition or bill for review in any district in which habeas corpus proceedings might be properly brought.
Objection is further predicated upon the proposition that the Commissioner and the Attorney General are indispensable parties. Gnerich v. Rutter, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed. 1068; Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411. We hold that, at least for the purposes of the relief sought in the amendment to the bill for review...
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