Basilio Fugiani v. Bruce G. Barber, District Director Immigration and Naturalization Service, San Francisco, California

261 F.2d 709, 1958 U.S. App. LEXIS 3321

Opinions

BONE, Circuit Judge.

Fugiani appeals from an order of the District Court dismissing his petition for review. Appellant is a native and citizen of Italy. He was admitted at New York to the United States as a non-immigrant (visitor) under Section 3(2) of the Immigration Act of 1924.

* On March 28, 1950, appellant married a citizen of the United States. On June 25, 1951, a warrant of arrest was issued charging that appellant was in the United States in violation of law in that after his admission as a visitor he had remained in the United States for a longer time than permitted under the law or regulations made thereunder.

1

A hearing was conducted on September 23, 1952, before a Special Inquiry Officer attached to the San Francisco district office of the Immigration and Naturalization Service. Appellant applied for suspension of deportation and, as an alternative form of relief, voluntary departure from the United States. At the conclusion of the hearing the Special Inquiry Officer found appellant eligible for voluntary departure from the United States.²

On September 24, 1952, the hearing was reopened and the Special Inquiry Officer entered an order granting the appellant the additional privilege of pre-examination.³ No appeal was taken from this order and a formal order granting voluntary departure and pre-examination was filed on September 28, 1952.

A visa petition was submitted for appellant by his wife; it was approved by the San Francisco District Office. By letter dated November 25, 1952, the United States Consulate General at Vancouver, British Columbia, notified the appellant that no further action would be taken in his case until he submitted documentary evidence of the termination of a prior marriage in Germany to a German girl.

Appellant communicated with his sister residing in his native city of Fa-briano, Province of Ancona, Italy. She informed appellant that by the official records of the Township of Fabriano appellant was married in Berlin, Germany, in 1945, and a record of the marriage was forwarded to Fabriano, Italy, on March 20, 1950, by the Foreign Ministry at Rome. From the briefs submitted it would seem that in Italy one’s birth record is annotated or amended to show marriage, and that his birth record did not show any marriage at the time he entered the United States on February 22, 1950. Appellant commenced proceedings in Italy to annul this claimed marriage.⁴

On July 29, 1953, a Special Inquiry Officer of the Immigration and Naturalization Service in San Francisco entered an order that the deportation proceedings of appellant be reopened and that the prior order granting voluntary departure with the additional privilege of pre-examination be withdrawn. Hearing was held, at which appellant presented in evidence a decree of annulment entered in the Civil and Penal Tribunal of Ancona, Italy, on July 10, 1953, showing the termination of his marriage to one Elly Martha Porg, contracted on September 4, 1945, in Berlin. Appellant stated the facts to be that he was given shelter by the family of Elly Porg after his escape from a German prisoner of war camp, that he did not speak German, that he did not intend to contract marriage, and believed he was signing documents which would permit the Porg family to obtain food and clothing rations. The Special Inquiry Officer found this to be “incredible,” and decided that the appellant was ineligible for discretionary relief.⁵ The appellant was ordered deported. On October 5, 1954, the Board of Immigration Appeals dismissed an appeal from this order of deportation.

Appellant later petitioned the United States District Court for a review of the administrative proceeding, under 5 U.S. C.A. § 1009, Section 10 of the Administrative Procedure Act. The petition alleged that appellant is and has been a person of good moral character, that he has resided in the United States with his United States citizen spouse continuously since their marriage on March 28, 1950, that appellant did not willfully conceal any prior existing marriage, that he had no knowledge of the alleged prior marriage, that the expressed opinions of the Special Inquiry Officer are contrary to the findings and conclusions of the Italian Court which granted a decree of annulment on the ground of fraud and concealment, that the decision is arbitrary, capricious and contrary to the evidence of record, that the decision is an abuse of discretion, and contrary to the record, and that “ * * * if the charges of the Special Inquiry Officer are permitted to stand, the plaintiff [appellant] will be forever barred from readmission to the United States; * The District Judge dismissed the petition on the ground that “ * * * Under all the circumstances disclosed in the record, judicial intervention is not warranted.” The instant appeal followed.

Appellant presents three specifications of error which deal with (1) sufficiency of the evidence; (2) fairness of the administrative hearing; and (3) refusal of the District Court to intervene.

We find no lack of fairness in the administrative proceedings in this case. We believe that the other alleged errors, if they are errors, are not errors that this Court can remedy. By appellant’s own pleading he remained in the United States for a period of time in excess of that allowed by his visa, and for that reason he is deportable. Immigration Act of 1924, § 14, 8 U.S.C.A. § 214. Whether a deportable alien is to be permitted voluntarily to depart the United States, or whether deportation is to be suspended, is a matter within the discretion of the Attorney General. Immigration Act of 1917, § 19(c), 8 U.S. C.A. § 155(c). This Court may not interfere with exercise of that discretion. United States ex rel. Von Kleczkowski v. Watkins, D.C.S.D.N.Y.1947, 71 F. Supp. 429, 435; United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652.

Despite the comments of the Special Inquiry Officer in his “discussion”⁶ of the case, we believe that the only issues before and the only issues determined by the Special Inquiry Officer during the administrative hearings in this case were the issues of appellant’s deportability and eligibility for discretionary relief in the nature of voluntary departure from the United States. We are supported in the view that the Special Inquiry Officer was not determining the status of appellant to reenter the United States by the findings and conclusions made at the close of the reopened hearing. From these findings and conclusions, it is clear that the Special Inquiry Officer found appellant deportable by reason of over-staying the time limit in his visa, and made no determination as to his eligibility for reentry into the United States. Eligibility for reentry will be determined if and when appellant seeks reentry.

Appellant devotes a large part of his brief in this appeal to the argument that the judicial determination of the Italian Court that the appellant was deceived and had no knowledge of such marriage should be binding upon the administrative tribunals in this case. Cogent as this argument may be in the appropriate factual situation, we believe it is not material here. The issue before the Immigration authorities was not deception into and knowledge of the marriage but whether to permit an admittedly deportable alien to depart voluntarily from the United States, a matter wholly within the discretion of the Attorney General. Immigration Act of 1917, § 19(c), 8 U.S.C.A. § 155(c).

The judgment of the District Court is affirmed.

Now 8 U.S.C.A. § 1101(a) (15) (B).

1 . Section 14 of the Immigration Act of 1924, 8 U.S.C.A. § 214: “Any alien who at any time after entering the United States is found * * * to have remained therein for a longer time than permitted under this chapter or regulations made thereunder, shall be taken into custody and deported in the same manner as provided for in sections 155 and 156 of this title * * Now 8 U.S.C.A. § 1251(a) (1, 2, 9).

2 . Section 19(c) of the Immigration Act of 1917, 8 U.S.C.A. § 155(c) : “In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may (1) permit such alien to depart the United States to any country of his choice at his own expense, in lieu of deportation, or (2) suspend deportation of such alien if not racially inadmissible or ineligible to naturalization in the United States if he finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien. * * *" Now 8 U.S.C.A. § 1254(a) (1, 2).

3 . 8 C F.R. § 142 provides for preexamination of an alien “ * * * for the purpose of determining in advance his admissibility into the United States for permanent residence when in possession of an unexpired immigration visa: * * * ” 8 C.F.R. § 142.1.

8 C.F.R. § 142.2. “Preexamination shall not be authorized unless it appears to the officer granting such authorization that the alien is: (a) Admissible to Canada; (b) Of good moral character; * * * (d) Able to obtain the prompt issuance of an immigration visa in ease it is determined that he is admissible to the United States for permanent residence.”

8 C.F.R. § 142.7. “ * * * preexam-ination will not be accorded * * * unless or until he * * * has received from the consular officer written assurance * * * that a visa will be promptly available * *

4 . Acting on instructions from appellant, an attorney in Fabriano, Italy, began an annulment action. The matter came to trial in an appropriate court in Ancona, June 27, 1953. The person identified as Elly Martha Porg appeared and testified about the alleged marriage. A decree annulling the marriage was entered on June 27, 1953. Recitals contained in the decree show that the testimony of Elly Porg was to the effect that appellant was tricked and deceived into marriage on the pretext that he was signing papers to obtain food. At the time appellant had but recently escaped from a German prisoner of war camp, did not speak German, and was in hiding in Berlin, awaiting the opportunity to cross from the Soviet sector in Berlin into the American sector so that he might return to Italy.

5 . The Special Inquiry Officer found appellant’s assertions of fact as to the alleged Berlin marriage “incredible” despite the fact that during the hearing appellant communicated by means of an interpreter so that the usual means of evaluating credibility were not available to the Special Inquiry Officer, despite the fact (as the Italian Court observed) that life in Berlin in the summer of 1945 was grim to an extreme, despite the fact that the Italian Court, found the facts as told by appellant credible, and despite the fact that there was no evidence introduced that conflicted with appellant’s statement of the events in Berlin.

6 . The “discussion” by the Special Inquiry Officer includes these comments: “The record in this case clearly indicates that the respondent attempted to obtain an immigration visa for admission to this country through fraud and that he carefully concealed from the authorities that he had been previously married * * *. I believe that this respondent was fully aware of his prior marriage and deliberately withheld such information from the authorities of this country even to the extent of committing perjury in his application for discretionary relief. This respondent has shown an utter disregard for the Immigration Laws of this country * *