Sebastiano Nani v. Herbert Brownell, Jr.

247 F.2d 103

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 12, 1957
• Docket: 13792
• Status: Published

Opinions

PER CURIAM.

This is a deportation case, in which the District Court granted the Government’s motion for summary judgment. The facts and the issues involved are stated in Judge McGuire’s memorandum of March 27, 1957, 153 F.Supp. 679, and need not be restated here.

On the principal point of law, we agree with the District Court that the appellant’s conviction of conspiracy (under 18 U.S.C. § 371) to violate the Jones-Miller Act, 21 U.S.C.A. § 174, and the Harrison Narcotic Act, 26 U.S.C. § 2553(a), was a conviction of “a violation of any law or regulation relating to the illicit traffic in narcotic drugs” within the meaning of Section 241(a) (11) of the Immigration and Nationality Act, 66 Stat. 204, 206-207, 8 U.S.C.A. § 1251(a) (11), and that appellant was thus rendered deportable. We also agree with the District Court that the warrant of deportation adequately stated the nature of the crime of which appellant had been convicted.

Appellant further contends that he was not notified that his case had been referred to the Attorney General for review¹ after the Board of Immigration Appeals had ruled in his favor, and that he had no opportunity to file a brief before the Attorney General.² We think that under the circumstances of this ease appellant cannot fairly allege lack of due process, or any prejudicial noncompliance with law. In his complaint for declaratory judgment in the District Court he raised the precise question of law which had been considered by the Attorney General, and which in actuality appears to have been the only subject of consideration by the latter, namely, the question of law above mentioned as to the interpretation of Section 241(a) (11) of the Immigration and Nationality Act. The District Court ruled on that question at appellant’s request, and appellant now urges this court to reverse the ruling. Under the circumstances, the ruling of the District Court appearing to us to be clearly correct, we think that it would be a frivolity to remand the case to the Attorney General for the receipt of briefs to give appellant the chance of securing from the Attorney General a new and different decision on a point of law which in the view of the District Court and this court would be erroneous. Perhaps if some question of discretion or of a change in a factual finding had been involved, appellant would have a stronger argument. Cf. United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. The instant case involved solely a question of law, free of any element of administrative expertise or judgment.

Accordingly, the judgment of the District Court will be

Affirmed.

1 . Under 8 C.F.R. 6.1(h) (1953).

2 . Citing and relying upon Section 292 of the Immigration and Nationality Act, G6 Stat. 235, 8 U.S.C.A. § 1362. Appellant also complains that a copy of the Board’s decision was not served upon him, as required by 8 C.P.R. 6.1(f) (1953). But it appears that he received a copy after the Attorney General had reviewed the Board’s action.

1 . 8 C.F.R. § 0.1(f).

2 . See Service v. Dulles, 77 S.Ct. 1352.