Vucinic v. United States Immigration & Naturalization Serv.
| Decision Date | 09 July 1965 |
| Docket Number | Civ. No. 65-9,65-10. |
| Citation | 243 F. Supp. 113 |
| Parties | Veselin VUCINIC, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE and Alfred J. Urbano, District Director, United States Immigration and Naturalization Service, Respondents. Veljko STANISIC, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE and Alfred J. Urbano, District Director, United States Immigration and Naturalization Service, Respondents. |
| Court | U.S. District Court — District of Oregon |
Gerald H. Robinson, Portland, Or., for plaintiffs (petitioners).
Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for respondent.
The above-named petitioners in the above consolidated matters are nationals of Yugoslavia, and each was a member of the crew of the M/V SUNADIJA, of Yugoslavian registry, on January 4, 1965. Vucinic was an ordinary seaman and Stanisic was the radio operator.
During the night of January 4, 1965, while the M/V SUNADIJA was in the Port of Coos Bay, Oregon, the petitioners, each holding an entry permit as visiting seamen issued by the respondent Naturalization Service, deserted the ship, with the intention of remaining in the United States.
The respondent Alfred J. Urbano (Urbano), District Director for Oregon, when advised of the desertion, revoked the petitioners' entry permits. 8 U.S.C. § 1282 (b) (1964 ed.).
On January 7, 1965, the petitioners sought of Urbano parole to the United States pursuant to the provisions of 8 U.S.C. § 1253(h) (1964 ed.) on the grounds that each of them was nonsympathetic to the averred Communist Government of Yugoslavia, and should they return to Yugoslavia they would be subjected to physical persecution for their political beliefs.
Urbano on January 7, 1965 caused the petitioners to be interrogated by personnel of the respondents' Portland office, and, based upon the record of such interrogation, found in the exercise of his discretion that petitioners' grounds for parole were wanting, denied their applications for parole, and ordered them excluded and returned to their ship.
The petitioners then instituted these proceedings, seeking injunctive relief from Urbano's orders. Petitioners claimed they had sufficient entry status to entitle them to a hearing before a special inquiry officer, prescribed for regular deportation proceedings under 8 U.S.C. § 1252(b) (1964 ed.). An administrative grant of deportation suspension "has historically been exercised as an integral part of the deportation proceedings before the special inquiry officer." Glavic v. Beechie, 225 F.Supp. 24, 26 (S.D. Tex.1963), aff'd. 340 F.2d 91 (5th Cir. 1964). This claim of a right to a special inquiry officer hearing was, and is, untenable. The sections of the Immigration and Nationality Act dealing solely with alien crewmen, 8 U.S.C. §§ 1281-1287 (1964 ed.), permit revocation of a crewman's conditional entry permit when, as was true here, the crewman "does not intend to depart on the vessel * * * which brought him * * *." 8 U.S.C. § 1282(b) (1964 ed.). And that same section further provides that "Nothing in this section shall be construed to require the procedure prescribed in section 1252 8 U.S.C. § 1252(b) (1964 ed.), discussed, supra, to cases falling within the provisions of this subsection." And see Glavic v. Beechie, supra. However, pursuant to authority granted by 8 U.S. C. § 1182(d)(5) (1964 ed.), the Attorney General has promulgated a regulation authorizing a District Director to parole into the United States an alien crewman "who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution in that country on account of * * * political opinion. * * *" 8 C.F.R. § 253.1(e) (1965). This regulation, relating expressly and solely to alien crewmen, made it unnecessary for this Court to decide the issue of entry status that has, in some cases, proved crucial in denying certain non-crewmen aliens the opportunity to establish, during regular deportation proceedings, the likelihood of persecution for race, religion or certain opinions if deportation occurred. See, e. g., Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958).
On January 18, 1965, this Court stayed any contemplated exclusion order of the petitioners and referred their causes back to Urbano for the purpose of holding an evidentiary hearing to receive such testimony and evidence the petitioners desired to produce in support of their claim of physical persecution if returned to Yugoslavia. On January 19 and 20, 1965, Urbano caused the evidentiary hearing to be held by William L. Pattillo (Pattillo), Deputy District Director for Oregon, and petitioners called and interrogated all witnesses and produced all evidence of their choice.
Based upon the record of such hearing, Urbano, on January 25, 1965, in the exercise of his discretion, found that:
and accordingly denied the petitions for parole.
On January 27, 1965, the petitioners moved this Court to review Urbano's decision and order of January 25, 1965, on the grounds that the same was arbitrary, capricious, was not supported by the evidence, and that Urbano was biased against the petitioners.
The petitioners noticed the discovery depositions of Urbano and Pattillo, and this Court denied Urbano's and Pattillo's request for relief from such discovery. These depositions were taken on May 18, 1965, and have been filed herein, as well as the complete administrative files of the respondent Service's Oregon office relating to the petitioners, for review by this Court in camera. Also, the record of the evidentiary hearing is now before this Court.
The petitioners and Urbano have each filed motions for summary judgment in their respective favor upon the record before this Court.
At the threshold, the Court faces a challenge to its jurisdiction to review the proceedings before Urbano. To support its challenge, the Government cites 8 U.S.C. § 1105a(a) (1964 ed.), which limits review of certain determinations to appropriate Courts of Appeals. However, the indicated statute applies solely to judicial review "of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, * * *." Emphasis supplied. By its very terms the provision is inapplicable to this case, even as interpreted in Foti v. Immigration Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963) to include administrative denial of suspension of deportation sought pursuant to 8 U.S.C. § 1254(a)(1) (1964 ed.). The instant proceedings occurred under the provisions of the Immigration and Nationality Act relating solely to alien crewmen, 8 U.S.C. §§ 1281-1287 (1964 ed.), and 8 C.F.R. § 253.1(e) (1963), supra, permitting parole for alien crewmen. Those statutes and that regulation are completely silent regarding judicial review of proceedings before a District Director relating to alien crewmen.
In Glavic v. Beechie, supra, the Court, facing a problem virtually identical to the one here, granted review, without apparent issue, concern, or discussion, under the judicial review section of the Administrative Procedure Act, 5 U.S.C. § 1009 (1964 ed.). While I question Glavic's failure to examine the assumption of jurisdiction more thoroughly, I conclude its result sound in that the issues presented there and in these proceedings deal with fundamental Constitutional questions of due process. Were the petitioners in custody, they could raise these Constitutional issues in a habeas corpus proceedings; in the absence of custody, there is still no sound judicial reason why the petitioners cannot invoke the general jurisdiction of a district court to review administrative decision and order upon the Constitutional issue of lack of due process at the hands of the administrative agency or person. The liberty of a claimant on bail or personal recognizance in lieu of custody, cannot be a factor in determining whether a district court has jurisdiction to hear a federal claim. At liberty or in custody only determines the nature of the proceedings. I am not concerned with whether Congress could deny aliens in the position of these seamen judicial review. It has not explicitly done so, and I cannot conclude that it has done so implicitly.
Congressional denial of review should be clearly indicated. Barefield v. Byrd, 320 F.2d 455 (5th Cir. 1963), cert. den. 376 U.S. 928, 84 S.Ct. 675, 11 L.Ed. 2d 624 (1964).
A further problem relating to reviewability is posed by these provisions of 5 U.S.C. § 1009 (1964 ed.):
To continue reading
Request your trial
-
Soroa-Gonzales v. Civiletti, Civ. A. No. C80-1356A.
...States v. Murff, 260 F.2d 610 (2d Cir. 1958); Conceiro v. Marks, 360 F.Supp. 454 (S.D.N.Y.1973); Vucinic v. United States Immigration and Naturalization Service, 243 F.Supp. 113 (D.Ore.1965); and, by implication, Fernandez v. Wilkinson, supra. See also Pierre v. United States, 547 F.2d 1281......
-
Stanisic v. UNITED STATES IMMIGRATION AND NAT. SERV.
...which had retained jurisdiction, sustained the administrative action, and dissolved the stay order. Stanisic v. Immigration & Naturalization Service, 243 F.Supp. 113 (D.Ore.1965). Appellant did not appeal, but instead unsuccessfully petitioned Congress for a private bill. When the District ......
-
United States v. Esperdy
...expressly makes the usual deportation procedures for aliens inapplicable to crewmen. Accord, Vucinic v. United States Immigration and Naturalization Service, 243 F.Supp. 113 (D.Ore. 1965). We think the reasoning of Glavic persuasive, particularly its emphasis on congressional intent to deny......
-
Blumenfeld v. ATTORNEY GENERAL OF THE US
...decision by the Commissioner of the INS, this review is governed by the Administrative Procedure Act, 5 U.S.C. § 706. See Vucinic v. INS, 243 F.Supp. 113 (D.Or.1965). The court's discretion in reviewing agency action is exceedingly The reviewing court may only set aside a final decision whe......