The opinion of the court was delivered by: DAWSON
Petitioner moves for a temporary injunction restraining his deportation pending a determination by this Court of a petition to review the deportation proceedings. Respondent cross-moves pursuant to Rule 12(b), 28 U.S.C.A., to dismiss the petition on the ground that it fails to state a claim upon which relief can be granted.
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 China.
2. Petitioner entered the United States as a seaman in or about the month of September, 1942.
3. Petitioner overstayed his leave; on January 28, 1943 was ordered deported; and departed on February 22, 1943.
4. Petitioner re-entered the United States as a seaman at New York, N.Y., on or about August 6, 1943.
5. Petitioner overstayed his leave and remained in the United States until March 20, 1945, at which time he shipped as a seaman in the United States Merchant Marine Service.
6. Petitioner remained in the United States Merchant Marine Service until October 4, 1947.
7. On October 4, 1947, petitioner was discharged from the United States Marine Service, and thereupon, immediately shipped 'foreign' as a seaman, returning to the United States at San Francisco, aboard the S.S. Indian Bear on February 12, 1948, which is the date of his last entry into the United States.
8. Petitioner continued to live in the United States, and on July 19, 1951, a warrant was issued for petitioner's arrest, and deportation proceedings commenced.
9. Beginning on July 25, 1951, petitioner was afforded a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service.
10. Petitioner appeared at the said hearing and its subsequent adjournments, and was represented by counsel of his own choosing.
11. At the conclusion of the hearing, it was the decision of the Special Inquiry Officer that petitioner was deportable; that he had not established that he had met the statutory requirements of eligibility for suspension of deportation under Section 19(c)(2)(b) as amended;
that even if he had found that petitioner had met the requirements of eligibility for suspension of deportation under Section 19(c)(2)(b), in his discretion, it would be denied.
12. Petitioner filed exceptions to the Hearing Officer's decision and order with the District Director of Immigration and Naturalization, and on or about May 26, 1952, the order of the Hearing Officer ...