Appeal from the District Court of the United States for the Southern District of New York.
Before SWAN, CHASE, and CLARK, Circuit Judges.
The appellants, husband and wife, were taken into custody under warrants ordering their deportation to Italy. They admit that they are aliens of Italian origin who are here illegally. The husband entered as a seaman in 1927 and promptly deserted his ship; his wife was admitted in 1928 as a temporary visitor for a period of three months. Her intention was to remain permanently and she did not try to obtain an immigration visa because she knew her husband to be here illegally. They have both remained in this country continuously since their respective entries, and have had a child born to them here. After hearings before an immigration inspector, they appealed to the board of review, which ordered deportation; warrants of deportation were issued on June 27, 1938. Thereafter they requested that the warrants be withdrawn and permission be granted them to depart voluntarily at their own expense in order that they might reenter legally without complying with the more onerous conditions incident to legal reentry after deportation. Denial by the board of review of this request is the basis of their resort to the court for a writ of habeas corpus.
The appellants contend that the Department of Labor has established an administrative practice of permitting aliens illegally here, who are of good moral character and the parents of a child born in the United States, to depart voluntarily rather than under a warrant of deportation; that since the appellants are within the class usually accorded such privilege, the denial of it to them is an abuse of discretion; and that in denying the privilege the board of review considered false accusations against Francesco Salvetti which the appellants were given no opportunity to refute, and consequently they were deprived of a fair hearing.
From the Annual Report of the Secretary of Labor for 1938 it appears that during that fiscal year 9,275 aliens were deported under warrants of deportation, while 9,278 aliens who had been adjudged deportable were allowed to depart at their own expense without a warrant of deportation. At page 102 the Report states: "Aliens found subject to deportation on other than criminal, immoral, or radical grounds, or because of mental or physical defects, who are able and willing to leave the country without expense to the Service are often accorded that privilege. In such cases the alien's removal from the country is as effectively accomplished as if actual deportation occurred, and he is not debarred from applying immediately for readmission if the basis of his deportable status is technical and does not involve any element of bad moral character which might disqualify him from readmission."
A similar statement appears in the Annual Report for 1937; and from earlier Reports it appears that the administrative practice is at least of ten years standing. No regulation respecting the practice has been promulgated, but we think it clear from the Annual Reports and from the record in this case that the Secretary of Labor, through the board of review, has established a practice of considering the request of an alien who has been ordered deported, to be accorded the privilege of departing voluntarily, and in many instances has granted such requests. There seems to be no express statutory basis for such practice. In United States ex rel. Giletti v. Commissioner, 2 Cir., 35 F.2d 687 the argument was advanced that section 1(b) of the Act of March 4, 1929, as amended on June 24, 1929, 8 U.S.C.A. § 180 (b), impliedly gives the Secretary of Labor power to allow an alien to leave voluntarily; hence section 20 of the Act of February 5, 1917, 8 U.S.C.A. § 156, may be understood as meaning that, when deported in invitum, he must be sent to one of the countries therein prescribed, but the order of deportation may remain unexecuted when the alien's removal is accomplished by his going elsewhere voluntarily. This court there said (35 F.2d page 688): "This appears to us certainly a humane construction to put upon the statute, and we will not say that it is too much of a strain upon its language. The facts at bar do not appear to us to call for a decision."
In the present case we shall assume that it is within the legal power of the Secretary of Labor, in whom Congress has vested the deportation of aliens, 8 U.S.C.A. §§ 155, 156, 214, to accomplish their removal by withdrawing the warrants of deportation and granting the privilege of voluntary departure. But the granting or denial of such privilege is of necessity a matter resting in his discretion. See Ex parte Panagopoulos, D.C.S.D.Cal., 3 F.Supp. 222, 223; Fafalios v. Doak, 60 App.D.C. 215, 50 F.2d 640. With respect to discretionary powers expressly conferred upon the Secretary, it has been frequently held in this circuit that his decision is not reviewable by the courts. United States ex rel. Chanin v. Williams, 2 Cir., 117 F. 689; United States ex rel. Ickowicz v. Day, 2 Cir., 18 F.2d 962; United States ex rel. Frumcair v. Reimer, D.C.S.D.N.Y., 25 F.Supp. 552, 554. Clearly, the exercise of a discretionary power conferred by implication must be equally final. See United States ex rel. Mazur v. Commissioner, 2 Cir., 101 F.2d 707, 708.
Moreover, even if it be assumed that in a clear case of abuse of discretion, the courts have a power of review, we do not find in the present record evidence of such abuse. The appellants contend that the privilege of voluntary departure was denied them because the board of review acted upon false accusations which they had no opportunity to refute. This contention is based chiefly upon Exhibit 18, which is a "Memorandum for the Commissioner" dated October 25, 1938. After referring to the aliens' request to be granted leave to depart without an order of deportation outstanding against them, and after mentioning accusations contained in a letter filed by former associates of the male alien as well as commendatory letters filed by his attorney, the memorandum continues as follows:
"The Board is unable solely on the record now before it to determine whether or not the aliens are deserving of the privilege which is asked in their behalf. If the male alien has a criminal record, he should be deported. If the complaint made in the case is merely a biased one and untrue, the alien should not be singled out as not deserving the treatment usually given to aliens having a citizen child. To decide properly what should be done in a case such as this, an investigation is necessary.
"The investigation would in this and similar cases involve the Service in expenses relative to matters not germane to the question of deportability. Therefore, it is deemed important to inquire whether the Board should make necessary such expenditures by requesting such investigations, or whether the position should be taken that where complaints are made derogatory to aliens in deportation proceedings, deportation will be proceeded with unless it is affirmatively shown by the aliens, without the necessity of an investigation by the Service, that there is no basis to the complaints. It will not be overlooked that the latter action renders possible the denial of leniency to some who otherwise would receive it even perhaps unfairly and upon biased complaints.
"L. Paul Winings "L. Paul Winings, Chairman.
"I think that as there is no hardship or separating of this immediate family ...