The opinion of the court was delivered by: DIMOCK
This is a motion by defendant for dismissal of the complaint on several grounds, for judgment on the pleadings and for summary judgment. The complaint, in substance, seeks a declaratory judgment that plaintiff, an alien, is eligible for suspension of deportation under § 19(c)2 of the Immigration Act of 1917, as amended, formerly 8 U.S.C. § 155(c),
an injunction against defendant District Director of Immigration and Naturalization, New York, N.Y., preventing him from deporting plaintiff and a direction that defendant re-open plaintiff's deportation hearing for the purpose of giving him an opportunity to apply for suspension of deportation.
At the threshold of the case, I must deal with the question whether the action must be dismissed because of the absence of indispensable parties.
Defendant contends among other things that the Commissioner of Immigration and Naturalization and the Attorney General of the United States are indispensable parties. If that is so, the action must be dismissed.
Plaintiff, before the instant motion, moved to reopen his deportation hearing before the Immigration and Naturalization Service so that he could apply for suspension of deportation. This motion was heard, considered and denied by a Hearing Officer, the Assistant Commissioner of Immigration and Naturalization and the Board of Immigration Appeals. The Board of Immigration Appeals concluded that plaintiff was, under § 3(a) of the Selective Training and Service Act of 1940, as amended, formerly 50 U.S.C.App. § 303(a), 'ineligible to citizenship' as defined in § 28(c) of the Immigration Act of 1924, as amended, formerly 8 U.S.C. § 224(c) and was therefore ineligible for suspension of deportation.
The question of indispensable parties in actions against subordinate government officials is a much vexed one. See 3 Moore's Federal Practice,2d Ed. § 19.16.
In a case for a declaration of eligibility for suspension of deportation much like this a district court denied a motion to dismiss although it apparently had only the District Director of Immigration and Naturalization before it. De Konig v. Zimmerman, D.C.E.D. Pa., 89 F.Supp. 891. There is, however, clear authority for the proposition that the Commissioner of Immigration and Naturalization is an indispensable party in actions to review orders of deportation. Paolo v. Garfinkel, 3 Cir., 200 F.2d 280; Slavik v. Miller, 3 Cir., 184 F.2d 575, certiorari denied 340 U.S. 955, 71 S. Ct. 566, 95 L. Ed. 688; Podovinnikff v. Miller, 3 Cir., 179 F.2d 937; Medalha v. Shaughnessy, D.C.S.D.N.Y., 102 F.Supp. 950; Birns v. Commissioner of Immigration and Naturalization, D.C.N.D. Ohio, 103 F.Supp. 180. See Connor v. Miller, 2 Cir., 178 F.2d 755.
On the other hand it has been held that the Attorney General is not an indispensable party in a suit to review the action of a District Director of Immigration and Naturalization in setting bail. Yanish v. Phelan, D.C.N.D. Cal., 86 F.Supp. 461. See also Yanish v. Wixon, D.C.N.D. Cal., 81 F.Supp. 499, an action to restrain the District Director of Immigration and Naturalization from conducting deportation proceedings alleged to be without authority or jurisdiction.
A recent decision of the United States Supreme Court raises the question whether, for the purposes of this problem of parties, there may not be a distinction between suits to review orders of deportation and suits like this for declarations of eligibility for suspension of deportation. That decision is Heikkila v. Barber, 345 U.S. 229, 73 S. Ct. 603, where it was held that habeas corpus is the only available method of review of orders of deportation but where the opinion approved the use of plenary action in the case reported as McGrath v. Kristensen, 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173, on the ground that in the Kristensen case the plaintiff instead of seeking relief against an outstanding deportation order litigated an erroneous determination of his eligibility for citizenship.
The considerations which lead lower courts to require the presence of superiors as parties in deportation order review cases are entirely different from those which led them formerly to permit cases of that kind to be brought by action rather than by habeas corpus and I believe that the authority of the cases on the question of parties was in no way weakened when the Supreme Court held wrong the cases on the question of form of remedy.
If, as I think, the deportation order review cases are still authority for the necessity of the presence of the superior officers as parties in deportation order review cases, they are authority for the necessity of their presence as parties in actions for declarations of eligibility for suspension of deportation.
It might be urged that full relief might be granted as a practical matter without the presence of the superior officers by the issuance of an injunction against deportation which would keep the District Director here from deporting plaintiff until the Board of Immigration Appeals reopened the hearings and gave effect to a determination of this court that plaintiff was eligible for suspension of deportation. That would be quite as true in the deportation order review cases, however, and in those cases the superior officers were held indispensable.
If full relief cannot be given without the presence of the superior officers in a deportation order review case it certainly cannot in a case like this where the object of the action is to obtain a determination which will be a basis for governing their conduct in a proceeding for a deportation order.
Aside from authority, however, I think that in actions for declarations of eligibility for suspension of deportation the Commissioner of Immigration and Naturalization and the Attorney General are indispensable parties.
The rule for the determination of this question I think is to be found in Williams v. Fanning, 332 U.S. 490, 68 S. Ct. 188, 92 L. Ed. 95. There the Supreme Court distinguished between cases where the decree, if it grants the relief sought, will require the superior officer to take action and cases where the decree, if it is favorable, will effectively grant ...