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COUTO v. SHAUGHNESSY

September 3, 1954

In the Matter of the Petition for Review of Jose Marques COUTO, Petitioner,
v.
Edward J. SHAUGHNESSY, as District Director of Immigration and Naturalization for the District of New York, Respondent



The opinion of the court was delivered by: DAWSON

This is a motion by petitioner for a temporary injunction to restrain his deportation, pending a determination by this Court of a petition to review the deportation proceedings. *fn1" Respondent cross-moves for summary judgment.

It appears from the papers submitted on the motion that the following material facts exist without substantial controversy:

1. Petitioner is an alien, a native and citizen of Portugal.

 2. Petitioner entered the United States as a seaman aboard the vessel 'Areti', at Baltimore, Maryland, on February 24, 1953.

 3. Petitioner overstayed his seaman's leave.

 4. On April 22, 1954, petitioner made a statement to the Immigration and Naturalization Service in which he admitted that he was an alien, had entered on a temporary seaman's permit, and had overstayed his leave.

 5. On April 23, 1954, a warrant for petitioner's arrest was issued, and deportation proceedings commenced.

 6. On May 6, 1954, petitioner was afforded a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service.

 7. Petitioner appeared at the said hearing and was represented by counsel of his own choosing.

 8. An official interpreter of the Immigration and Naturalization Service was present at the hearing, and interpreted for the petitioner.

 9. The official interpreter was not sworn.

 10. Petitioner was shown his sworn statement, and under oath, asked if the statements therein were true, to which question he answered in the affirmative.

 11. Petitioner's counsel objected to this question and to the inclusion of the sworn statement into the record.

 12. At the conclusion of the hearing, it was the decision of the Special Inquiry Officer that petitioner was deportable.

 13. An appeal was taken to the Board of Immigration Appeals, which appeal was dismissed on June 10, 1954.

 Petitioner contends that the hearing under which the deportation order was issued was void (1) because it did not comply with the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq., in that the hearing did not comply with the procedures of the Act and was held before a Special Inquiry Officer of the Immigration and Naturalization Service rather than an Examiner having the status and tenure prescribed by the Administrative Procedure Act, (2) that assuming the hearing did not have to comply with the Administrative Procedure Act, there was not legally competent evidence under the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq., to support the deportation order, (3) that assuming the requirements of the Immigration and Nationality Act were complied with, Section 242(b) of that Act, 8 U.S.C.A. § 1252(b), violated the due process provisions of the ...


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