Vardjan v. Esperdy

• Decision Date: 18 September 1961
• Citation: 197 F. Supp. 931
• Parties: Floriana VARDJAN, Plaintiff, v. P. A. ESPERDY, as District Director of the New York District of the Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Southern District of New York

197 F. Supp. 931

Floriana VARDJAN, Plaintiff, v. P. A. ESPERDY, as District Director of the New York District of the Immigration and Naturalization Service, Defendant.

United States District Court S. D. New York.

September 18, 1961.

Fried & Mailman, New York City, for plaintiff, Elmer Fried, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, for defendant, Roy Babitt, Sp. Asst. U. S. Atty., New York City, of counsel.

LEVET, District Judge.

Defendant originally moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. An order was sought dismissing the instant complaint on the ground that it failed to state a claim upon which relief can be granted and that the defendant was entitled to judgment as a matter of law. In connection with this motion, defendant submitted plaintiff's administrative file in the Immigration and Naturalization Service (Exhibit A) containing the record of the proceedings held pursuant to Section 243 (h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h), which are involved herein.

Under Rule 12(c), when "matters outside the pleadings are presented to and not excluded by the court, the motion for judgment on the pleadings shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See also Moore, Federal Practice (2d ed.) ¶ 12.15.

The court has found the administrative file to be of valuable assistance and has therefore not excluded it. Since there is admittedly no genuine issue in this case as to any material facts, the court will accordingly treat defendant's motion as one for summary judgment. The parties were given an opportunity to submit additional briefs on the points of law involved herein and any other material pertinent to the determination of the motion for summary judgment.

Plaintiff, a native of Yugoslavia, presently residing in Brooklyn, New York, entered the United States as a temporary visitor on June 17, 1957. Having remained here beyond the time permitted by law, she was ordered deported under a warrant of deportation dated October 18, 1960; such order has become final.¹ On July 26, 1960, plaintiff applied for withholding of her deportation under the provisions of Section 243(h)² of the Immigration and Nationality Act, 8 U.S. C.A. § 1253(h), claiming she would be subject to physical persecution if returned to Yugoslavia.

On December 15, 1960, at a hearing on her application before a Special Inquiry Officer appointed by the Commissioner of Immigration and Naturalization, plaintiff declined, on advice of counsel, to offer any evidence relative to her claim of persecution on the ground that said Special Inquiry Officer "was not a duly appointed hearing examiner, pursuant to the requirements * * * of Section 5 of the Administrative Procedure Act of 1946 (5 U.S.C. Sec. 1004), but was willing to produce evidence before an officer qualified to take evidence under law." (See Paragraph Eighth of the complaint.) The Special Inquiry Officer advised plaintiff and her counsel that, under such circumstances, he intended "to recommend the denial of the application, if for no other reason, lack of prosecution." (See minutes of hearing, December 15, 1960, p. 5, found in Exhibit A.)

On January 5, 1961, the Special Inquiry Officer recommended that plaintiff's application be denied "in that the applicant has failed to establish that she would be physically persecuted if deported to Yugoslavia." (See Memorandum and Recommendation of Special Inquiry Officer, File A-11 076 903, in Exhibit A.) The Regional Commissioner, who alone has authority to pass upon petitions for withholding of deportation under Section 243 (h), subsequently denied plaintiff's application on January 17, 1961. In deciding the matter "upon consideration of the available record and any other pertinent evidence or available information," he found that "The available information does not establish that the applicant was actually persecuted while residing in Yugoslavia and there is nothing to support her claim that she will be persecuted if she returns to that country." (See determination of Regional Commissioner in Exhibit A.) He therefore concluded: "All available information relating to the applicant and to conditions in Yugoslavia have been carefully considered. In my opinion, the applicant will not be physically persecuted if she returns to Yugoslavia. Her application will be denied." (Ibid.)

Plaintiff thereupon instituted the instant action under Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, and Section 279 of the Immigration and Nationality Act of 1952, 8 U.S. C.A. § 1329, for a judgment declaring that defendant would be acting unlawfully and in excess of his authority in deporting plaintiff under the outstanding order of deportation since she was not accorded her statutory rights in the Section 243(h) proceedings, and for an injunction enjoining said deportation until plaintiff's alleged statutory rights have been accorded her. Plaintiff contends that the denial of her application was illegal and violative of due process since she was denied an opportunity to present her claim in accordance with the requirements of Section 5 of the Administrative Procedure Act, 5 U.S.C.A. § 1004.

Defendant's answer admits that plaintiff refused to submit evidence in the Section 243(h) proceeding before the Special Inquiry Officer (Paragraph 1), but alleges as a separate defense (Paragraph 5) that the complaint fails to state a claim upon which relief can be granted.

I

Defendant takes the position that the Section 243(h) proceedings before the Special Inquiry Officer fully comported with the administrative procedure established by the Attorney General for such matters. It is initially argued that plaintiff merely challenged the legal competency of the Special Inquiry Officer and declined in effect to prosecute her claim; that the facts alleged in the complaint do not state a legal wrong within the meaning of Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, and Section 279 of the Immigration and Nationality Act, 8 U.S.C.A. § 1329, so as to entitle plaintiff to invoke judicial relief at this juncture.

Defendant concedes in his brief that the Regional Commissioner did dispose of plaintiff's claim on the merits and denied the discretionary relief requested. The argument is advanced, however, that despite its final character, this disposition was necessitated by the regulations since a stay of deportation remained in effect while plaintiff's application under Section 243(h) was pending. Otherwise, defendant asserts, an applicant's failure to prosecute or proceed further upon an objection to some interim proceeding would work an indefinite stay of deportation.

The thrust of this argument is that plaintiff's failure to prosecute her claim by presenting evidence is not equivalent to the denial of her application on its merits so as to render judicial review of the administrative action appropriate. Defendant would have plaintiff resubmit her application under Section 243(h), this time offering proof before the Special Inquiry Officer.

The court is cognizant of the undesirability of premature judicial intervention in administrative proceedings. However, the salutary principle of administrative finality would not seem to be violated here. Certainly the Regional Commissioner was not frustrated by plaintiff's decision not to submit evidence before the Special Inquiry Officer, for he determined her application on the merits, as evidenced by the administrative file and conceded in argument by defendant. Production of such evidence when plaintiff challenged the legal authority of the Special Inquiry Officer to conduct the Section 243(h) proceeding would have represented a futile gesture on her part. Assuming her premise to be correct, the administrative hearing, whatever its ultimate outcome, would have been invalid under the rule enunciated by the Supreme Court in Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, which plaintiff would apply to Section 243(h) proceedings.

Submission of evidence before the Special Inquiry Officer would not seem to have been necessary for an adjudication of plaintiff's application. It may be noted that 8 C.F.R. § 243.3(b) (2) provides that where an alien has refused to appear for interrogation before a Special Inquiry Officer when requested to do so or has waived his appearance, all pertinent and available information in the case shall nonetheless be forwarded to the Regional Commissioner for his final decision.

Whether plaintiff offered any evidence, furthermore, would have no bearing on her fundamental objection to the legal authority of the Special Inquiry Officer to preside over the hearing. Plaintiff has seen fit to rest her case on the applicability of the hearing provisions of Section 5 of the Administrative Procedure Act, 5 U.S.C.A. § 1004, to Section 243(h) proceedings, the precise issue brought into focus by the instant complaint. In the court's opinion, this contention should be tested now and a judicial determination made regarding its merits.

II

In Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 453, 94 L.Ed. 616, the Supreme Court held that Section 5 of the Administrative Procedure Act, 5 U.S.C.A. § 1004, establishing certain formal requirements applicable to "`every * * * adjudication required by statute to be determined on the record after opportunity for an agency hearing,'" applied to deportation proceedings conducted by the Immigration Service, although the deportation statute then in effect, Section 19(a) of the Immigration Act of February 5, 1917, 39 Stat. 874, 888, as amended, contained no express requirement for any hearing or...