Before SWAN, CLARK and FRANK, Circuit Judges.
This appeal presents the question whether the District Judge erred in refusing to issue a second writ of habeas corpus to review a decision of the Board of Immigration Appeals which denied the application of a deportable alien for suspension of deportation pursuant to section 19 of the Immigration Act of 1917 as amended, 8 U.S.C.A. § 155(c), of which the relevant portion reads as follows:
"In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * suspend deportation of such alien * * * if he finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien. * * *"*fn1
The appellant is an alien of Italian nativity and citizenship who entered the United States in 1932 with intent to remain permanently and without possessing an immigration visa. He has resided here continuously since entry, was married in 1949 to a legally resident alien, and has a two year old American-born child. Proceedings for his deportation were instituted in 1947 and, after a hearing, he was found deportable on the charge of illegal entry without an immigration visa. The proceedings were later reopened to receive further evidence concerning his application for suspension of deportation. Such discretionary relief was denied by the hearing officer in May 1952. His decision was thereafter adopted by the Acting Commissioner and was affirmed by the Board of Immigration Appeals on April 3, 1953. The Board's opinion reviewed the evidence and concluded with the statement: "After consideration of all the facts and circumstances in the case, we believe that the applications for relief should be denied as a matter of administrative discretion." Thereafter the appellant was taken into custody for deportation and he promptly sued out a writ of habeas corpus which Judge Noonan dismissed by order entered May 5, 1953.*fn2 This order was not appealed.*fn3 On May 16 the petition for issuance of a second writ was presented. This petition, like that on which the first writ issued, attacks only the Board's denial of discretionary relief. The charge on which the appellant has been found deportable is admitted. The case was heard on affidavits and oral argument without testimony being taken. Judge Clancy refused to issue the writ. Deportation has been stayed pending determination of the appeal from such refusal.
An order dismissing one writ of habeas corpus does not formally estop the relator from suing out another on the same grounds.*fn4 Nevertheless it may properly be given controlling weight if the same grounds are urged in a second writ.*fn5 The appellant contends that the second petition alleged new grounds of attack upon the administrative denial of suspension of deportation, namely, that the Board of Immigration Appeals, improperly exercised its discretion (1) because it considered confidential information and other material outside the record, (2) because the case had been prejudged by the Attorney General, and (3) because other aliens similarly situated had been granted discretionary relief. These grounds were not alleged in the first petition. Ground (1) is alleged in paragraphs 11-16, ground (2) in paragraph 19, and ground (3) in paragraphs 9-10 of the second petition; they are printed in the margin.*fn6 These charges, alleged upon information and belief, were categorically denied in an opposing affidavit which also incorporated by reference the administrative record. There is absolutely nothing in that record to indicate that the administrative officials considered anything outside the record. Indeed the October 1952 list of "unsavory characters" and the press conference concerning it occurred months after the hearing officer's decision and the Assistant Commissioner's adoption of it, and could not have influenced them. The Board's opinion discusses only the evidence in the record, and such evidence was amply sufficient to support discretionary denial of suspension of deportation. As this court said in United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 490, an alien has no privilege of inquiring into the grounds on which the Attorney General has denied suspension of deportation; "unless the ground stated is on its face insufficient, he must accept the decision, for it was made in the 'exercise of discretion,' which we have again and again declared that we will not review." In this respect the case at bar is unlike Alexiou v. McGrath, D.C.D.C., 101 F.Supp. 421, where it affirmatively appeared that evidence not of record was considered on the issue of eligibility for suspension of deportation.
We may assume arguendo, as we did in United States ex rel. Weddeke v. Watkins, 166 F.2d 369, 371, certiorari denied 333 U.S. 876, 68 SCt. 904, 92 L. Ed. 1152, that since the Attorney General has provided by regulations the procedure by which a deportable alien is accorded a hearing on his application to suspend deportation, that he is entitled to procedural due process in the conduct of such hearing; that is, the requirements of a fair hearing must be met.*fn7 Nothing alleged in the petition for a second writ suggests that such requirements were not observed in the initial hearing or in the affirmance of the hearing officer's decision by the Assistant Commissioner of Immigration. The relator alleges "belief," based on the existence of the subsequently created list of undesirable aliens, that the Board of Immigration Appeals was influenced by this list in affirming the decision denying suspension. The allegation that the Attorney General had prejudged the application for discretionary relief by including the appellant's name in the October 1952 list is substantially only a reiteration of the first ground of complaint. That the Board considered matters outside the record was denied by the opposing affidavit, and the Board's opinion appears to corroborate such denial. In the opinion of a majority of the court, the assertion of a mere suspicion or "belief" that the Board considered other matters did not require the issuance of a second writ. Were this enough, every deportable alien would so allege, merely to delay his justifiable deportation.
The third ground of complaint, that "in all similar cases" the Board had exercised its discretion in favor of deportable aliens convicted of crime is completely without merit. Suspension of deportation is a discretionary matter. In the exercise of its discretion it is permissible for the Board to take into account the alien's earlier bad conduct. United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371. The facts set out in the Board's opinion respecting his criminal record and his tenuously explained affluence were ample justification for denial of discretionary relief. Nor does the allegation that the appellant was treated differently from other aliens similarly situated raise a triable issue of fact. Determination of what weight to give to a prior conviction of crime necessarily depends upon the circumstances of the particular case. No two cases can be precisely similar. The appellant tries to bring himself within the scope of United States ex rel. Knauff v. McGrath, 2 Cir., 181 F.2d 839, vacated as moot, 340 U.S. 940, 71 S. Ct. 504, 95 L. Ed. 678, where it was alleged that the uniform practice was to defer deportation in all cases where a bill of relief was pending in Congress. There the uniform practice was a provable fact. It is not such when, as here, the alleged uniform practice relates to the appraisement of the moral reformation of convicted deportees.
FRANK, Circuit Judge (dissenting).
I dissent because I think the district judge erred in refusing to hear testimony, offered by the relator, to show that the hearing before the Board was a farce.
Suppose the Supreme Court were secretly to notify all judges of inferior federal courts that in the future it would reverse all judgments they entered if favorable to certain designated persons. Accardi's wife (in the second habeas corpus petition) asserts that we have here something of that sort - but worse. Let us see:
By a valid regulation,*fn1 having the effect of a law,*fn2 the Attorney General has provided that one who applies for discretionary relief under the statute shall receive a hearing before the Board of Immigration Appeals on his appeal from a decision, adverse to the applicant, made by the Commissioner or Acting Commissioner. Another regulation provides that the Attorney General may review and reverse any decision made by the Board.*fn2a These regulations - which, while they stand, bind the Attorney General and his subordinates*fn3 - mean, I think, that decision by the Board or the Attorney General as to the grant or refusal of such relief must not be made until after a hearing by the Board.*fn4 If it can be shown that, as the relator alleged in the second petition for habeas corpus, the decision adverse to discretionary relief in Accardi's case was made by the Attorney General in 1952 before Accardi had had a Board hearing (in 1953), so that the purported Board hearing was but a sham, then it will appear that discretion has not been exercised as required by the regulation. In that event, habeas corpus should be granted, unless within a reasonable time an administrative decision is made on the basis of a Board hearing in accordance with the regulation and without regard to the pre-hearing decision by the Attorney General. See Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999, 1003-1004. For while courts cannot review the exercise of administrative discretion nor themselves exercise it, they can and should compel its exercise where the officer vested with the discretion has failed to do so. Mastrapasqua v. Shaughnessy, supra, 180 F.2d at page 1002.
Relator alleged in the second habeas corpus petition that the pre-hearing decision consisted of the inclusion of Accardi's name in a secret list of aliens whom the Attorney General had decided must be expelled from the United States, this secret list having been circulated in October 1952 among all the Attorney General's subordinates in the Department of Justice, including the Board, and having since been approved with reference to Accardi by the present Attorney General - all previous to the administrative hearing on Accardi's petition for discretionary relief. Relator argues, in effect, that, since the Attorney General was the Board's superior, and since he could reverse any decision made by the Board concerning such relief,*fn5 his issuance in 1952 of the secret list obliged the Board in 1953 to refuse to exercise its discretion in Accardi's favor,*fn6 and compelled it to act without considering the countervailing evidence, e.g., that Accardi has lived in the United States for 21 years, is the husband of a lawful resident of the United States and the father of a two-year-old Americanborn child. Respondent, in his traverse in the district court, denied the allegation of prejudgment. But relator's counsel proposed in the district court to prove the contrary by evidence to be adduced in court. He proposed to prove, not only the specific facts alleged in the habeas corpus petition concerning the Attorney ...