United States ex rel. Stellas v. Esperdy

366 F.2d 266

• Court: Court of Appeals for the Second Circuit
• Decided: August 30, 1966
• Docket: No. 396, Docket 30356
• Status: Published

Opinions

SMITH, Circuit Judge:

Grigorios Stellas appeals from an order of the United States District Court for the Southern District of New York, Frederick van Pelt Bryan, Judge, dismissing his application for a writ of habeas corpus. Stellas, an alien, native of Greece, arrived at New York as a crewman on the M/T Andreas on June 23, 1961. He complained of tonsilitis, and was paroled into this country for medical treatment for one month. At the same time, his crewman’s landing permit, under which he had previously made a number of landings, was revoked. At the expiration of the parole, he failed to return to his vessel or to the Immigration and Naturalization Service, and remained at large until July 11, 1963, when he was found by the INS, and his parole was revoked. Of course, by then his parole had long since expired. By that time, however, he had married a United States citizen, and had one daughter, with another child expected. The District Director reparoled Stellas so that he could remain with his wife in her condition. Parole was to continue until 30 days after the termination of her pregnancy.

Mrs. Stellas promptly filed a petition with the INS to have Stellas accorded non-quota immigrant status.^{1 2}The petition was approved by the District Director on August 4, 1963. In accordance with his plan to perfect his status, Stellas indicated that he would go to Caracas, Venezuela, to file for an immigrant visa. Allegedly for financial reasons, however, he was never able to do so. Parole was periodically extended, the last time until March 16, 1966, for completion of the immigrant visa.

But on November 10,1965, Mrs. Stellas expressed a wish that the petition be withdrawn, alleging that she was in fear of bodily harm, and asking that her husband be deported. She signed a request for withdrawal of the petition. By applicable regulation, 8 C.F.R. § 206.1(b) (1), approval of the visa petition was automatically revoked. Stellas’ parole was then revoked, by notice to him, and only the issuance of an order of the District Court prevented his summary deportation.

On December 6, 1965, after an apparent reconciliation, Mrs. Stellas filed a new visa petition to accord Stellas immediate relative status,³ but at the time indicating that she was acting under pressure from her husband’s relatives and friends. After an investigation, Mrs. Stellas indicated she wished to withdraw the petition, and did so December 15.³ The District Court denied the writ and Stellas appeals. We find no error and affirm.

Although Stellas originally could have come ashore on his crewman’s landing permit, he actually was paroled into this country. § 212(d) (5) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(d) (5). Accordingly, both as a matter of statutory construction, Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585 (1925), Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958), Licea-Gomez v. Pilliod, 193 F.Supp. 577 (N.D.Ill.1960), and as a matter of the scope of constitutional guarantees, Wong Hing Fun v. Esperdy, 335 F.2d 656 (2d Cir. 1964), cert. denied sub nom. Ng Sui Sang v. Esperdy, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965), Ahrens v. Rojas, 292 F.2d 406 (5th Cir. 1961), Stellas may be deported without a hearing. See also United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (2d Cir. 1965). Since he was paroled into the country, it is as if he were “stopped at the limit of our jurisdiction,” United States v. Ju Toy, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040 (1905), and it is the same “as if [he] never had been removed from the steamship,” Nishimura Ekiu v. United States, 142 U.S. 651, 661, 12 S.Ct. 336, 339, 35 L.Ed. 1146 (1892). As the Court recognized in Leng May Ma, supra, there is no difference between parole and detention ashore.

Accordingly, Stellas is being excluded, not expelled, and no hearing is necessary, since he does not make a claim of citizenship. Any procedure authorized by Congress for the exclusion of aliens is due process, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950), a point on which the Court was unanimous. Exclusion raises no due process question. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953).

Petitioner suggests that it was improper for the INS to revoke his landing permit and instead to parole him, and he claims that if he had entered under his landing permit, he would have had the protection of full-scale deportation procedure, upon a revocation of the permit, or upon his failure to return to the ship, and could not be summarily deported. This misreads the statute. Sec. 252(b) of the Act, 8 U.S.C. § 1282(b), provides that plenary deportation procedure, that required by § 242 of the Act, 8 U.S.C. § 1252, is not required in deporting an alien on revocation of his permit. Nor does the Constitution compel a different result. Appellant’s permit, like all others, states, “By accepting this conditional permit to land the holder agrees to all the conditions incident to the issuance thereof, and to deportation * * * in accordance with the provisions of § 252(b) * * Had appellant entered on a permit, he would have waived any Constitutional right to full-scale deportation proceedings. Compare United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (S.D.N.Y.1960).

In any case, Stellas was here in November and December, 1965, on reparole. When apprehended on July 11, 1963, his permission to land would have long expired, as all are limited by statute, § 252(a) (2) of the Act, 8 U.S.C. § 1282 (a) (2) to 29 days. He was then obviously deportable. Having subsequently been reparoled, and his wife having then filed her petition, occasioning his parole on yet a third ground, Stellas is in no position to complain. And whether or not his initial parole, for medical reasons, was proper, his reparole was proper. Moreover, while the “permanent type landing permit,” 8 C.F.R. § 252.4(a), of which Stellas was allegedly possessed, is revocable under the Regulation for wilful violation of its terms, or when its holder is ineligible for it, or inadmissible, these categories of revocability are not intended to be exclusive. Since under the statute, § 252 of the Act, 8 U.S.C. § 1282, a permit is given each time the crewman arrives, and it is explicitly within the discretion of the immigration officer to grant a permit, he has discretion to revoke the “permanent type landing permit” on any entry of the crewman.

The sole meritorious ground for appeal is the claim that the procedure followed by the INS is not authorized by the Act, and is an abuse of discretion, in that the automatic revocation of a visa petition upon its withdrawal by the citizen spouse, 8 C.F.R. § 206.1(b) (1), conflicts with the statute, § 206 of the Act, 8 U.S.C. § 1155, which provides that the Attorney General may, at any time, “for what he deems to be good and sufficient cause” revoke a visa petition.⁴ We read the statute as affording the Attorney General the usual measure of administrative discretion.

The Regulation does not create a rule at odds with the statute. Sec. 206 does not prevent the Attorney General from formulating rules which irrevocably govern the question of revocation of visa petitions. That question, as we have said, is a matter confined to his discretion. But the Attorney General may govern the exercise of his discretion by written or unwritten rules; indeed it would be remarkable if he did not. Any such decision is an application of facts to principles. All this regulation does is provide a substitute for the exercise of discretion on a case by case basis. But there has been an exercise of discretion; in effect, the Attorney General has announced that he deems it good and sufficient cause, in every case, to revoke on withdrawal. We know of no rule which requires a case by case approach; the Attorney General certainly may proceed by regulation. Contrast United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954).

In Mastrapasqua v. Shaughnessy, 180 F.2d 999, 1002 (2d Cir. 1950) this court stated that a refusal to exercise discretion occurs

when an official sets up a class of cases as to which he refuses ever to exercise any [further] discretion, one way or the other, if that class is not rationally differentiated from other cases, not within that class, where he uses his discretion case by case.

The regulation here, however, does not create an arbitrary or capricious class of cases. In Mastrapasqua, the class was set up by the Attorney General making a ruling in a single case. It follows from the portion of the opinion quoted that at least if the class created is susceptible of rational differentiation, then there is an exercise of discretion in following the rule.

And in United States ex rel. Knauff v. McGrath, 181 F.2d 839 (2d Cir. 1950), vacated as moot, 340 U.S. 940, 71 S.Ct. 504, 95 L.Ed. 678 (1951), the court came to a similar conclusion. The statute there provided for deportation “unless in the opinion of the Attorney General immediate deportation is not practicable or proper.” The INS admitted that when a private bill was introduced in Congress to avoid the deportation of an alien, it was the invariable practice of the INS to stop all further efforts to deport. In the case of Mrs. Knauff, this practice was not followed. The court stated that the “invariable practice” could be regarded in one (or both) of two ways. First, it could be a settled administrative interpretation of the Act that it is never “proper” in “the opinion of the Attorney General” not to suspend deportation when a private bill was pending, an interpretation which would ordinarily be entitled to great weight. Second, it could be the establishment of a class of situations as to which the Attorney General has always so exercised his discretion. The classification was reasonable, and a departure from it would be an arbitrary or capricious act, an abuse of discretion.

It is implicit in each of these cases that the Attorney General may in effect rule in advance as to how his discretion will be exercised, and that following such a rule is not a failure to exercise discretion. The fact that there is a rule does not “prejudge” the exercise of discretion as in Accardi, supra. Rather, it is the exercise of discretion, and since the power to make that determination has not been delegated, Accardi is readily distinguishable.

It is true that the regulation says that the petition is “automatically” revoked; hence it might be said that there is no separate act of following the rule of discretion established by that very regulation. Even under the regulation, however, the ministerial act of notice is required, and under the statute, if not also the regulation, revocation is not effective until notice is given, although revocation once effective is retroactive to the date of approval of the petition. We do not read the regulation as in conflict with the statute on that account. Revocation is “automatic” only in that no further exercise of discretion is required.

Still to be considered is whether, though there was an exercise of discretion, there was an abuse of discretion, in revoking the petition. We cannot say that there was an abuse of discretion here. As the consular official in Caracas stated, Stellas “never actively pursued [his] visa application,” and he had had over two years of parole extensions to do so. Since this was so, and since Stellas’ wife wished that the petition be withdrawn, there was sufficient reason to revoke the petition. See Scalzo v. Hurney, 225 F.Supp. 560 (E.D.Pa.1963) aff’d 338 F.2d 339 (3rd Cir. 1964).

We have examined appellant’s other contentions, and find them without merit. His case evokes sympathy, but he has been accorded the treatment prescribed by Congress, and the judgment of the District Court is therefore

Affirmed.

1 . § 205(b) of the Act, now repealed, and replaced by § 4 of the Immigration Act of 1965, 8 U.S.C. § 1154.

2 . 8 U.S.C. § 1154.

3 . Stellas asserts that Ms wife has engaged in extramarital misconduct and finds his presence in this country inconvenient.

4 . The precise question before the court is the effectiveness of the revocation of parole, not of the visa petition. The INS has not suggested that even if automatic revocation of the petition was proper, the revoeation of parole was proper as an independent exercise of discretion. In fact it would appear that revocation of parole followed automatically from the revocation of the petition.