Wolf v. Boyd

• Decision Date: 19 January 1957
• Docket Number: No. 15101.,15101.
• Parties: Hazel Anna WOLF, Appellant, v. John P. BOYD, District Director, Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

238 F.2d 249 (1956)

Hazel Anna WOLF, Appellant, v. John P. BOYD, District Director, Immigration and Naturalization Service, Appellee.

No. 15101.

United States Court of Appeals Ninth Circuit.

October 24, 1956.

Rehearing Denied January 19, 1957.

C. T. Hatten, Dwight M. Stevens, Seattle, Wash., Lloyd E. McMurray, San Francisco, Cal., for appellant.

Charles P. Moriarty, U. S. Atty., Richard F. Broz, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before DENMAN, Chief Judge, and BONE and BARNES. Circuit Judges.

BARNES, Circuit Judge.

Petitioner admittedly is subject to, and under an order for deportation. Such order is valid and final. Her original hearing started in 1949. In 1951 she was found deportable by the Hearing Officer, on the charges contained in the warrant of arrest, namely, that she was a member of an organization which advocated the overthrow of the Government of the United States, that she circulated written and printed matter so advocating, and that after her entry she was an alien who was a member of the Communist Party of the United States.

In 1952, the petitioner appealed to the Commissioner of Immigration. He adopted the decision of the Hearing Officer. Later that year an appeal was dismissed by the Board of Immigration Appeals.

Petitioner instituted an action for judicial review in the District Court. This was heard and ordered dismissed in 1953; and the dismissal was affirmed in this Court in 1954, with rehearing denied. Wolf v. Boyd, 9 Cir., 215 F.2d 377.

In 1955 the Supreme Court denied her petition for certiorari, 348 U.S. 951, 75 S.Ct. 438, 99 L.Ed. 743.

As the lower court so aptly stated in this proceeding:

"It is conceded by petitioner for the purpose of this action at least that all proceedings resulting in the order and warrant of deportation were fair, regular, and in compliance with statute, and that she has exhausted judicial review except so far as it may relate to an application to suspend deportation under the provisions of Sec. 244 of the Immigration and Nationality Act of 1952."

This is a judicial review of such an application heretofore denied by the District Court on January 27, 1956. Petitioner had filed a motion to reopen the deportation proceedings. It was addressed to the Board of Immigration Appeals, and was based on the 1952 Act, 8 U.S.C.A. § 1254(a) (5).

Petitioner alleged that she came within "each and every one of the provisions of Sec. 244(a) (5)" in that:

(a) She was deportable under Paragraph (6) of Sec. 241(a), 8 U.S.C.A. § 1251(a) (6) (although she had been ordered deported under the 1918 Act);

(b) For an act committed or status acquired subsequent to such entry;

(c) She had been physically present for not less than ten years within the United States, since the commission of the act or assumption of the status;

(d) She can prove, and offers to prove, that during all such period she has been and is of good moral character;

(e) She has not been served with a final order of deportation issued pursuant to the 1952 Act; and

(f) She is a person whose deportation would result in exceptional and extremely unusual hardship "to the alien, and to child, her five grandchildren, her sister and her brother," all of whom were citizens of the United States.

It should be noted parenthetically that after the denial of certiorari by the Supreme Court, a private bill, S. 1425, was introduced on petitioner's behalf by Senator Langer. Petitioner was granted a stay of deportation, both when this bill was introduced in the Senate, and subsequently, when petitioner filed her motion to reopen proceedings before the Board of Immigration Appeals.

Apparently no action, favorable or adverse, was taken upon this bill, either by the Senate or by the Judiciary Committee thereof.

On February 8, 1956, the Board of Immigration Appeals denied petitioner's motion to reopen the hearings. A copy of its memorandum decision reads as follows:

"This case is before us on counsel's motion for reopening which was filed on January 27, 1956.

"On November 5, 1952, we dismissed the respondent's appeal from a decision of the Acting Assistant Commissioner, directing deportation on two charges based on the Act of October 16, 1918 as amended by the Alien Registration Act of 1940, 8 U.S.C. § 137.^* Thereafter, habeas corpus proceedings were instituted by the respondent which resulted in a decision adverse to her in the United States District Court. This judgment was affirmed by the United States Court of Appeals of the Ninth Circuit on August 10, 1954, and a rehearing was denied on October 11, 1954. Wolf v. Boyd, 9 Cir., 1954, 215 F.2d 377. On February 28, 1955 certiorari was denied, 348 U.S. 951 75 S.Ct. 438, 99 L.Ed. 743. The present motion seeks to have the hearing reopened to permit the respondent to file an application for suspension of deportation under the provisions of Section 244(a) (5) of the Immigration and Nationality Act. We have previously held that an application for discretionary relief must be submitted during the Immigration hearing. Matter of M.........., 5 I&N Dec. 472 (1953); Matter of C.........., 5 I&N Dec. 630 (1954). In Marcello v. Bonds, 1955, 349 U.S. 302, 313 75 S.Ct. 757, 99 L.Ed. 1107 the court said that this Board was not bound to consider the question of suspending deportation on the merits where the alien had failed to make an application for that relief at the hearing before the special inquiry officer. Our decisions in Matter of M........... and Matter of C........., supra, are not controlling because the respondent was not eligible for suspension of deportation under the legislation which was in effect when the hearing was closed on February 12, 1951. However, they do indicate the necessity for promptness in making such an application. The Immigration and Nationality Act, 8 U.S.C.A. § 1101 et seq. became law on June 27, 1952 and was effective on December 24, 1952. Over three years have elapsed from the latter date and the motion to reopen contains no explanation for the delay in its submission. We note that the Supreme Court handed down its decision in the respondent's case on February 28, 1955 and that counsel's affidavit in support of the motion is dated March 16, 1955. A serious administrative problem would be created for the Service if we were to sanction a procedure by which counsel could remain inactive until deportation was imminent and then upset the proceeding with a motion to reopen for discretionary relief which apparently could have been submitted at any time after December 24, 1952.

"The respondent declined to testify at the hearing on the advice of counsel, the motion to reopen contains no information as to whether the respondent admits that she was a member of the Communist Party and if so, whether such membership has terminated and the date of termination. 8 C.F.R. 6.21 provides that motions to reopen shall be supported by affidavits or other evidentiary material. As applied to this respondent, who is attempting to secure the exercise of administrative discretion, we believe this regulation made it incumbent upon her to furnish her own affidavit concerning the period of her membership in the Communist Party, the extent of her activities while a member, the date when she terminated her membership, and detailed information as to the hardship which would result to her if she is deported.

"8 C.F.R. 6.21 also provides that in any case in which a deportation order is in effect, there shall be included in the motion to reopen a statement by or on behalf of the moving party declaring whether or not the alien is the subject of any criminal proceeding under Section 242(e) of the Immigration and Nationality Act and, where the motion is for the purpose of securing discretionary relief, there is to be included a statement as to whether or not the alien is subject to any pending criminal prosecution. The motion fails to comply with these two requirements.

"It is well settled that a rehearing in an administrative proceeding is not a matter of right but lies within the discretion of the agency making the order. United States v. Pierce Auto Freight Lines, Inc., 1946, 327 U.S. 515, 535, 66 S.Ct. 687, 90 L.Ed. 821; Interstate Commerce Commission v. Jersey City, 1944, 322 U.S. 503, 514, 64 S.Ct. 1129, 88 L.Ed. 1420. The facts asserted in the motion to reopen are not persuasive that this case merits the exercise of the discretionary authority to suspend deportation.

"After careful review of the record, it is our considered opinion that a reopening of the proceeding is not warranted and counsel's motion will, therefore, be denied.

"Order: It is ordered that counsel's motion be and the same is hereby denied.

"Thos. G. Finucane Chairman, Board of Immigration Appeals"

This discloses that the Board denied the motion, but only after examing the facts asserted by petitioner in the motion to reopen, and after a careful review of the entire record. This the Board was entitled to do. United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371; Arakas v. Zimmerman, 3 Cir., 200 F.2d 322.

Petitioner in effect asserts that because she sees fit to designate her petition a "Motion to Reopen" rather than "Application for Suspension of Deportation", she is entitled, as of right to an order reopening the matter, and thereafter the right to submit evidence, after which the Attorney General, through his designate, the Board of Immigration Appeals, may exercise discretion as to whether or not the alien should be deported.

Petitioner in effect desires to set up her own rules of procedure as to how and when this discretionary judgment must be exercised.

As the lower court pointed out:

"We are concerned solely with whether petitioner has been granted procedural due process with respect to an act of grace that may be granted petitioner by the Attorney General",

after she has made a showing of compliance with the provisions of Section 244 (c) of the Immigration and...