The opinion of the court was delivered by: RYAN
This is a proceeding which we have accepted as a bill or petition filed on behalf of Frank Cammarata, seeking judicial review of a final order of deportation made by the Commissioner of Immigration and Naturalization (hereinafter called the 'Service'), pursuant to the provisions of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1001 et seq., and hereinafter referred to as the 'Act'. With this pending, there has also been filed another petition (which we accept as an amendment to the original bill), to review a determination of the Commissioner refusing to allow the release of Cammarata under bond until the final determination and decision of this court on the first petition.
It is contended in opposition that this court is without jurisdiction to review the final order of deportation by proceedings instituted under the Act, and that petitioner's only remedy lies by writ of habeas corpus. It is argued that the provisions of the Act may not be applied to deportation proceedings because the statute provides that the decision of the Attorney General, (and, therefore, that of the Commissioner of Immigration and Naturalization as his duly delegated subordinate), 'shall be final.' Sec. 19 of The Immigration Act of 1917, as amended, 8 U.S.C.A. § 155.
The pertinent portions of Sec. 10 of the Act, 5 U.S.C.A. § 1009, are:
'Except so far as (1) statutes preclude judicial review * * *
'(a) Any person suffering legal wrong because of any agency action * * * shall be entitled to judicial review thereof.
'(b) The form of proceeding for judicial review shall be any special statutory review proceeding * * * or, in the absence * * * thereof, any applicable form of legal action * * * .
'(c) Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action. * * * '
It is further provided by Sec. 10, Sec. 1009(e)(B) of the Act that the court upon review shall 'hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. * * * '
In United States ex rel. Lindenau v. Watkins, S.D. N.Y. Sept. 1947, 73 F.Supp. 216, it was held that the provisions of Sec. 10 of the Act were applicable to judicial review of proceedings had by the Commissioner of Immigration and Naturalization directing deportation pursuant to the Immigration Law, 8 U.S.C.A. § 154, 156. Although the matter came before the court in that case on issues raised by writ of habeas corpus, and not as here by bill for review under the Act, it quite clearly appears that the district court was of the opinion that the provisions of the Act should be applied in both instances. In United States ex rel. Trinler v. Carusi, D.C. Pa., June 1947, 72 F.Supp. 193, judicial review was denied. There, the court held that Sec. 10 of the Act 'is inapplicable to the extent that judicial review is limited by statues, and that, since the immigration statutes deny the right to judicial review except for the writ of habeas corpus, no other character of remedy is available under this section.' (U. of Pa. L. Rev. observation was made: ' * * * The Court in applying its view of Sec. 10 to the instant case, determined that in addition to the conclusive bar which the immigration states interpose, to allow judicial review of a character other than habeas corpus would unduly hamper the deportation process. These conclusions are open to question. There is serious doubt that the Immigration Act of 1917 restricts review to the extent that this court supposed. The cases cited to support its interpretation of that act say nothing about the extent to which the act limits review, and were decided on other grounds. In addition, the Senate Report on the Immigration Act of 1917 indicates quite clearly that Congress had no intent, specific or general, as to the manner in which judicial review of deportation proceedings could be obtained. In that report and in subsequent decisions under the immigration statutes, it is indicated that the scope of judicial inquiry into deportation proceedings was to be narrowly circumscribed, but there is nothing in the report or the decisions to indicate an intent to restrict the character of judicial remedy in which that limited scope of inquiry could be exercised. That habeas corpus has been the sole means of review is thus the result of a procedural technicality and is not attributable to legislative mandate.' (U. of Pa. L. Rev., supra)
' * * * The nub of the question seems to us to be whether these deportation proceedings are such as to fall within the first exception to Section 10 as a proceeding provided by a statute which 'preclude(s) judicial review'.
'Our conclusion is that the case does not fall within the exception. Therefore the judicial review provisions found in Section 10 as a proceeding provided by a statue which 'preclude(s) judicial review'.
and, further ' * * * What we are here deciding is that the Act did enlarge the rights of people against whom deportation orders have been issued and that they are now entitled to judicial review after the issuing of a deportation order. That being so, a document headed 'Petition for Review' is an appropriate enough form in which to ask for the relief.'
We hold that the Act is applicable to the deportation proceedings here involved.
We now come to a consideration of the objection raised that this court is without power to release petitioner under bond pending determination of this bill for review.
We have determined that this court may entertain the bill for review under the provisions of the Act. Having done so, it seems to follow that as an incident to this power the court may do all acts necessary to accomplish and grant equitable relief to the petitioner, while his petition is pending before it. Here, it appears that the one form of equitable relief which might well be granted is the temporary release of petitioner under bond. One of the decisions of the Service which petitioner seeks to review is the denial to him of temporary release under bond. The granting of the prayer covering this portion of his bill would in itself effect his release under bond.
Still another objection to the jurisdiction of this court is made by respondents, in the following language: 'The petition for review herein names, as respondents, the Attorney General of the United States, the Commissioner of Immigration, and W. Frank Watkins, the District Director of Immigration, incorrectly, described in the petition as the District Attorney. The petition seeks to review an order of deportation made by the Commissioner of Immigration on behalf of the Attorney General of the United States. Since neither the Commissioner of Immigration nor the Attorney General are residents of the Southern District of New York, there is no jurisdiction in this court over said respondents, and accordingly, they should be stricken as parties to this proceedings. If this is done, then the only remaining party is the District Director, of Immigration; and while the court has jurisdiction over the person of the District Director of Immigration, since the said District Director is not the individual who made the order of deportation, and is merely the governmental officer named to execute it, there is no jurisdiction over the subject matter of the action. For it is obvious that it is the action of the Attorney General and the Commissioner of Immigration, rather than that of the District Director of Immigration, which is sought to be reviewed in this proceeding.'
This objection on jurisdictional grounds starts off with the proposition that the mere naming of the Commissioner of Immigration and the Attorney General, in this proceeding, does not confer jurisdiction over them, and, that since the Commissioner and the Attorney General are not inhabitants of this district, they are not actual parties to this proceeding. Transcontinental & Western ...