United States Ex Rel. Accardi v. Shaughnessy

206 F.2d 897, 1953 U.S. App. LEXIS 2813

• Court: Court of Appeals for the Second Circuit
• Decided: August 11, 1953
• Docket: 22750_1
• Status: Published

Opinions

SWAN, Circuit Judge.

This appeal presents the question whether the District Judge erred in refusing to issue a second writ of habeas corpus to review a decision of the Board of Immigration Appeals which denied the application of a deportable alien for suspension of deportation pursuant to section 19 of the Immigration Act of 1917 as amended, 8 U.S.C.A. § 155(c), of which the relevant portion reads as follows:

“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 * * * suspend deportation of such alien * * * 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. * * * ”¹

The appellant is an alien of Italian nativity and citizenship who entered the United States in 1932 with intent to remain permanently and without possessing an immigration visa. He has resided here continuously since entrv, was married in 1949 to a legally residencien, and has a two year old American-born child. Proceedings for his deportation were instituted in 1947 and, after a hearing, he was found deportable on the charge of illegal entry without an immigration visa. The proceedings were later reopened to receive further evidence concerning his application for suspension of deportation. Such discretionary relief was denied by the hearing officer in May 1952. His decision was thereafter adopted by the Acting Commissioner and was affirmed by the Board of Immigration Appeals on April 3, 1953. The Board’s opinion reviewed the evidence and concluded with the statement: “After consideration of all the facts and circumstances in the case, wc believe that the applications for relief should be denied as a matter of administrative discretion.” Thereafter the appellant was taken into custody for deportation and he promptly sued out a writ of habeas corpus which Judge -Noonan dismissed by order entered May 5, 1953.² This order was not appealed.³ On May 16 the petition for 2issuance of a second writ was presented. Tbis Petition’ like that on whidl tlie first wrlt lssued’ attacks ouly the Board’s denial of discretionary relief. The charge on whlch the aPPellant has been found dePortable ls admitted. The case was heard 011 affldavlts and oral argument without testimony being taken. Judge Clancy refuscd t0 lssue tbe writ Deportation has been stayed Pendm£ determination of the aPPe£d from such refusal,

An order dismissing one writ of habeas corpus does not formally estop the relator from suing out another on the same grounds.⁴ Nevertheless it may properly be given controlling weight if the same grounds are urged in a second writ.⁵ The appellant contends that the second petition alleged new grounds of attack upon the administrative denial of suspension of deportation, namely, that the Board of Immigration Appeals, improperly exercised its discretion (1) because it considered confidential information and other material outside the record, (2) because the case had been prejudged by the Attorney General, and (3) because other aliens similarly situated had been granted discretionary relief. These grounds were not alleged in the first petition. Ground (1) is alleged in paragraphs 11-16, ground (2) in paragraph 19, and ground (3) in paragraphs 9-10 of the second petition; they are printed in the margin.⁶ These charges, alleged upon information and belief, were categorically denied in an opposing affidavit which also incorporated by reference the administrative record. There is absolutely nothing in that record to indicate that the administrative officials considered anything outside the record. Indeed the October 1952 list of “unsavory characters” and the press conference concerning it occurred months after the hearing officer’s decision and the Assistant Commissioner’s adoption of it, and could not have influenced them. The Board’s opinion discusses only the evidence in the record, and such evidence was amply sufficient to support discretionary denial of suspension of deportation. As this court said in United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 490, an alien has no privilege of inquiring into the grounds on which the Attorney General has denied suspension of deportation; “unless the ground stated is on its face insufficient, he must accept the decision, for it was made in the ‘exercise of discretion,’ which we have again and again declared that we will not review.” In this respect the case at bar is unlike Alexiou v. McGrath, D.C.D.C., 101 F.Supp. 421, where it affirmatively appeared that evidence not of record was considered on the issue of eligibility for suspension of deportation.

We may assume arguendo, as we did in United States ex rel. Weddeke v. Watkins, 166 F.2d 369, 371, certiorari denied 333 U.S. 876, 68 S.Ct. 901, 92 L.Ed. 1152, that since the Attorney General has provided by regulations the procedure by which a deportable alien is accorded a hearing on his application to suspend deportation, that he is entitled to procedural due process in the conduct of such hearing; that is, the requirements of a fair hearing must be met.⁷ Nothing alleged in the petition for a second writ suggests that such requirements were not observed in the initial hearing or in the affii manee of the hearing officer’s decision by the Assistant Commissioner of Immigration. The relator alleges “belief,” based on the existence of the subsequently created list of undesirable aliens, that the Board of Immigration Appeals was influenced by this list in affirming the decision denying suspension. The allegation that the Attorney General had prejudged the application for discretionary relief by including the appellant’s name in the October 1952 list is substantially only a reiteration of the first ground of complaint. That the Board considered matters outside the record was denied by the opposing affidavit, and the Board’s opinion appears to corroborate such denial. In the opinion of a majority of the court, the assertion of a mere suspicion or “belief” that the Board considered other matters did not. require the issuance of a second writ. Were this enough, every deportable alien would so allege, merely to delay his justifiable deportation.

The third ground of complaint, that “in all similar cases” the Board had exercised its discretion in favor of deportable aliens convicted of crime is completely without merit. Suspension of deportation is a discretionary matter. In the exercise of its discretion it is permissible for the Board to take into account rhe alien’s earlier bad conduct. United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371. The facts set out in the Board’s opinion respecting his criminal record and his tenuously explained affluence were ample justification for denial of discretionary relief. Mor does the allegation that the appellant; was treated differently from other aliens similarly situated raise a triable issue of fact. Determination of what weight to give to a prior conviction of crime necessarily depends upon the circumsiances of the particular case. No two cases can be precisely similar. The appellant tries to bring himself within the scope of United States ex rel. Knauff v. .McGrath, 2 Cir., 181 F.2d 839, vacated as moot, 340 U.S. 940, 71 S.Ct. 504, 95 L.Ed. 678, where it was alleged that the uniform practice was to defer deportation in all cases where a bill of relief was pending in Congress. There the uniform practice was a provable fact. It is not such when, as here, the alleged uniform practice relates to the appraisement of the moral reformation of convicted deportees.

Order affirmed.

1 . This statute was repealed by the Immigration and Nationality Act of June 27, 1952, effective 180 days thereafter, and the provisions as to discretionary suspension of deportation were replaced by section 241 of the 1952 Act, 8 U.S.C.A. § 1254. However, the “savings clauses” of the later Act kept the earlier statute alive for pending proceedings, and provided that “An application Cor suspension of deportation under section 19 of the Immigration Act of 1917, as amended * * * which is pending on the date of enactment of this Act shall be regarded as a proceeding within^the meaning of this subsection.” 8 U.S.C.A. § 1101 note. P.L. 414, § 405(a), 66 Stat. 280. The appellant’s application was pending until the Board of Immigration Appeals rendered its decision on April 3, 1953.

2 . Judge Noonan’s memorandum decision reads: “A review of the record as a whole, fails to demonstrate that there was present a clear abuse of discretion or clear failure to exercise discretion, Absent either element this court cannot review the exercise of discretion by the Board of Immigration Appeals. (United States ex rel. Adel v. Shaughnossy [2 Cir.], 183 F.2d 371.)”

3 . The appellant's brief on the present apPea^ admits that dismissal of the first wrlt was correct:-

4 . Salinger v. LoiseI 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 606, 156 A.L.R. 240, certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630.

5 . Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 68 L.Ed. 999; United States ex rel. McCann v. Thompson, supra; United States ex rel. Karpathion v. Jordan, 7 Cir., 153 F.2d 810, certiorari denied 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639.

6 . “9. That on April 6, 1945, favorable discretionary relief was' exercised herein in the form of .voluntary departure and preexamination, but my husband was unable to take advantage of this because the American Consul refused to issue a visa to him on the ground that he had been convicted of a crime in 1934.

“10. That the aforesaid criminal ground may be waived by the Board of Immigration Appeals and in all similar cases has been waived by the Board of Immigration Appeals.

“11. Upon information and belief that the Department of Justice maintains a confidential file with respect to my husband.

“12. Upon information and belief that on or about October 2, 1952, the Attorney General announced at a press conference that he planned to deport certain so-called ‘unsavory characters.’

“13. That upon information and belief, on or about October 2, 1952, the Attorney General prepared a list of one hundred individuals whoso deportation he sought in accordance with the announcement made at his press conference of October 2, 1952.

“14. Upon information and belief, that included in this list of one hundred persons was the name of my husband, Joseph Accardi.

“15. Upon information and belief, that the aforesaid list of one hundred individuals, including the name of my husband, was circulated by the Department of Justice among all its employees connected with the Immigration Service and the Board of Immigration Appeals.

“16. Upon information and belief, that because of the listing of my husband’s name on this confidential list and because of consideration of matters outside the record of his immigration hearing, discretionary relief has been denied to permit my husband to adjust his immigration status to that of a permanent resident.

“17. That application was made during the month of Hay, 1953, for reconsideration of my husband’s case and such reconsideration has resulted in a reailirmance of the order of deportation herein.

“18. Upon information and belief that the Attorney General has issued several press releases with regard to my husband’s case during the month of April, 1953, and because of the unfavorable publicity accorded to this case at the instigation of the Attorney General, it has not been possible to secure a fair reconsideration and rehearing of this matter.

“19. That the decision to deny favorable discretionary relief herein was prejudged by the Attorney General on October 2, 1952, when he included my husband’s name in the list of one hundred so-called ‘unsavory characters’ and since that time it has been impossible for my husband to secure fair consideration of his case.”

7 . See also United States ex rel. Giacalone v. Miller, D.C.S.D.N.Y., 86 F.Supp. 655, 657; United States ex rel. Bauer v. Shaughnessy, D.C.S.D.N.Y., 115 F.Supp. --; Chavez v. McGranery, D.C.S.D.Cal., 108 F.Supp. 235.