Zupicich v. Esperdy

• Decision Date: 11 July 1962
• Citation: 207 F. Supp. 574
• Parties: Attillio ZUPICICH, Plaintiff, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

207 F. Supp. 574

Attillio ZUPICICH, Plaintiff, v.P. A. ESPERDY, as District Director of the Immigration and Naturalization Service for the District of New York, Defendant.

United States District Court S. D. New York.

July 11, 1962.

Robert J. Carluccio, Hoboken, N. J., for plaintiff.

Robert M. Morgenthau, U. S. Atty., S. D. N. Y., by Herbert P. Rickman, New York City, for defendant.

EDELSTEIN, District Judge.

The plaintiff, a Yugoslav seaman, seeks judicial review of the Attorney General's order denying his application for withholding of deportation under § 243(h) of the Immigration and Nationality Act of 1952,8 U.S.C.A. § 1253(h).¹The defendant has moved for summary judgment upon the ground that there is no genuine issue as to any material fact, and that he is entitled to judgment as a matter of law.

Zupicich entered the United States on May 22, 1959, as a non-immigrant crewman, and was authorized to remain for the period of time that his vessel remained in port.By remaining beyond the permissible period he became deportable pursuant to § 241(a)(2) of the Act, 8 U.S.C.A. § 1251(a)(2), and on March 21, 1960, he was ordered deported.Plaintiff then applied for withholding of deportation to Yugoslavia under § 243(h) of the Act, upon the ground that he would be subjected to physical persecution upon his return there.The application to withhold deportation was heard before a Special Inquiry Officer, as authorized by the regulations, 8 C.F.R. § 243.3(1958), who, on June 7, 1960, recommended that the application be denied.The Acting Regional Commissioner, the Attorney General's delegate, followed the recommendation, and on June 30, 1960, ordered that the plaintiff's application for withholding of deportation to Yugoslavia be denied.A motion to reconsider was denied on September 22, 1960.

Before considering plaintiff's claim that the Attorney General's discretion under § 243(h) was exercised in an arbitrary and capricious manner so as to deprive plaintiff of due process of law, I must dispose of the threshold question of whether the enactment of P.L. 87-301, § 5(a), 75 Stat. 650(1961)8 U.S.C.A. § 1105a, has deprived this court of its long established jurisdiction to review the Attorney General's determinations under § 243(h) of the Act.P.L. 87-301 provides that the judicial review provisions of the Administrative Procedure Act, as amended, 5 U.S.C.A. § 1031 et seq., shall be the sole and exclusive procedure for review of all final orders of deportation.The venue provisions of the 1961legislation make all final orders of deportation reviewable in the Court of Appeals.8 U.S.C.A. § 1105a(a)(2).Plaintiff urges that this action should be heard in the Court of Appeals and not in this court.Although he has made no more than a bare allegation to that effect, it would seem that his contention must be that the new Act is an exclusive procedure for judicial review of all orders of deportation and exclusion, and further, that an order denying withholding of deportation is such a deportation order that is controlled by the Act, and, consequently, by its venue provisions.A review of the statute's legislative history, as well as some inquiry into the history of judicial review of deportation orders is necessary for a determination of the issue.

The new statute, now § 106 of the Immigration and Nationality Act,8 U.S. C.A. § 1105a, became effective on October 26, 1961.It prescribed for the first time a sole and exclusive statutory scheme for "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 * * *," i. e., § 242(b) of the Immigration and Nationality Act of 1952.The explicit aim of the section was to prevent protracted delays in the execution of deportation and exclusion orders which, in the opinion of Congress, had been caused by repetitive actions for judicial review of claimed improprieties in the proceedings.²Such repetitive appeals were facilitated by the increase in remedies available to an alien seeking to review a deportation order.Prior to 1955, a deportation order could be challenged only by a habeas corpus proceeding which was available to the alien after he had been taken into custody.³Thereafter, additional judicial review remedies became available as a result of the Supreme Court decisions in Brownell v. Rubinstein, 346 U.S. 929, 74 S.Ct. 319, 98 L.Ed. 421(1954), andShaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868(1955).The Court held that deportation orders entered under the Immigration and Nationality Act of 1952 could be judicially reviewed in actions for declaratory judgment and injunctive relief under § 10 of the Administrative Procedure Act,5 U.S.C.A. § 1009.The decision in Pedreiro set the high-water mark in judicial review of deportation orders.Following the decision in Pedreiro, an alien subject to a deportation order, having lost in a declaratory judgment or injunction proceeding, could thereafter sue out a writ of habeas corpus when taken into custody.Moreover, prior to the passage of the new bill it was possible to seek relief by habeas corpus repeatedly.⁴This increase of judicial proceedings in immigration matters provided the stimulus for the present congressional attempt to regulate the availability of judicial review.⁵

Congress sought to remedy what it considered to be the undesirable practice of permitting aliens to utilize repetitive appeals for judicial intervention which served to delay execution of deportation orders.This was accomplished by shortening the statute of limitations for bringing a petition for review, by limiting the available remedies, and by having direct review of final orders in the Court of Appeals.Thus, under the new bill, an alien ordered deported must bring a "petition for review,"⁶ rather than an action for declaratory judgment or injunction, and this special statutory review proceeding must be instituted not later than 6 months from the date of the final order of deportation.The action may no longer be brought in a district court, but only in the Court of Appeals of the circuit where the alien resides or the circuit where the order originated.The right to habeas corpus is explicitly retained and is exempt from the jurisdictional provisions limiting the statutory petition.Opportunities for relitigation of the deportation order have been limited by a provision requiring every petition for review or for habeas corpus to state whether the validity of the order has been upheld in any prior judicial proceeding.Petitions for review and writs of habeas corpus will no longer be entertained if the validity of the order has been previously determined in a criminal or civil proceeding, unless the court finds that grounds which could not have been presented in the prior proceeding are found to exist, or that the remedy provided by the prior proceeding was inadequate to test the validity of the order.8 U.S.C.A. § 1105a(a)(1), (a)(2), (a)(9), (c).

With this legislative and historical background at hand, the court passes to the question presented: Is an order denying an application for withholding of deportation, entered pursuant to Section 243(h) of the Act, a "final order of deportation" which is subject to judicial review by the Court of Appeals, and not by this court?

While it is true that the Act aims to expedite the enforcement of immigration orders, the statutory language indicates quite clearly that the judicial review procedure is not to apply indiscriminately.Contrary to the plaintiff's position, the language indicates that the statute is to apply only to "final" orders entered in administrative proceedings conducted pursuant to § 242(b) of the Act, 8 U.S.C.A. § 1252(b), and not to the review of the Attorney General's opinion or judgment, as exercised under § 243(h).⁷Section 242(b) empowers the Special Inquiry Officer, who is authorized to conduct such proceedings, to "make determinations including orders of deportation. * * *"He is authorized to determine deportability, to suspend deportation and to authorize voluntary departure.8 C.F.R. 242.8(a)(1958).Determinations of deportability are made solely upon the record in the administrative proceedings conducted by the Officer.Upon a finding that an alien is deportable, pursuant to § 241 of the Act, 8 U.S.C.A. § 1251, the officer enters an order of deportation, which aside from review by appropriate judicial remedies, is considered final.8 C.F.R. 242.20(1958).

However, the kind of determination involved in the question of whether or not deportation should be withheld under § 243(h) of the Act is different.Under § 243(h), the role of the Special Inquiry Officer does not involve adjudication, as it does under § 242(b).Under § 242(b), the final administrative determination as to deportability rests with the Special Inquiry Officer.The authority to withhold deportation under § 243(h), however, rests clearly with the Attorney General or his delegate, the Regional Commissioner.8 C.F.R. 243.3(1958);Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242(1956).Pursuant to the authority vested in him by § 103(a) of the Act, 8 U.S.C.A. § 1103(a), the Attorney General has prescribed regulations which have the force and effect of law.United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 74 S.Ct. 499, 98 L.Ed. 681(1954).Under the regulations for § 243(h) of the Act, if an alien requests a withholding of deportation on the ground that he would be physically persecuted if deported to the country designated by the Immigration and Naturalization Service, he is requested to appear before a Special Inquiry Officer for a hearing under oath.The Special Inquiry Officer then prepares his findings and forwards a recommendation to the Regional Commissioner.Thus, the role of the Special Inquiry Officer under ...