United States Ex Rel. Frank Orlando, Relator-Appellant v. District Director of Immigration and Naturalization

222 F.2d 537

• Court: Court of Appeals for the Second Circuit
• Decided: May 2, 1955
• Docket: 23337_1
• Status: Published

Opinions

PER CURIAM.

A majority of this court is content to affirm on the reasoned and complete opinion of District Judge Brennan. Counsel has, however,- particularly pressed on us the supposed incompleteness of,the record before the Examiner. These objections were, not so clearly preserved in the administrative proceedings that we feel it incumbent on us to upset the obviously correct determination of the administrative tribunal, arrived at after careful evaluation of appellant’s checkered history. There is no reason to suppose that what is now certified to us as the administrative record was not-such or was not available to counsel at all times. This disposes of the 1939 papers, which are marked as one of the exhibits. As to the 1938 false application papers, we agree with Judge Brennan that there is good reason to believe that their nonproduction may have been waived — or so the Board might reasonably have concluded from counsel's oral argument before it. Immigration proceedings are now so harsh, as a matter of law, that perhaps the usual presumptions in favor of administrative regularity should well be mitigated somewhat to-show a modicum of kindness to our hard-pressed alien visitors. Even so, we probably do no good, but may eventually prejudice other deserving cases if on the proddirigs of counsel’s afterthoughts we search an administrative record to discover possibilities of lurking ambiguities which in any event have clearly not affected due process or the ultimate result.