The opinion of the court was delivered by: SUGARMAN
Plaintiff's complaint alleged inter alia that defendant, as District Director of Immigration and Naturalization on April 11, 1955, caused plaintiff to be apprehended on a warrant charging that he, after admission to the United States as a student, failed to comply with the conditions of such status; that plaintiff is a Chinese citizen born in Japan in 1923 where he resided until 1930 and thereafter resided in China until 1949 when he entered the United States; that plaintiff was released on administrative bond on May 6, 1955, after a hearing on April 12, 13, 14 and 25, 1955, before a special inquiry officer resulting in an order for deportation, the appeal from which was dismissed by the Board of Immigration Appeals on July 5, 1955. The complaint seeks inter alia a declaration of the illegality of the deportation order and injunctive relief.
Plaintiff now moves for an injunction pendente lite.
Defendant, before answering the complaint, cross moves under Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A., for summary judgment dismissing the complaint on the ground that no genuine issue as to any material fact exists and defendant is entitled to judgment as a matter of law.
Plaintiff entered the United States on January 24, 1949, at San Francisco and was admitted under Section 4(e)* of the Immigration Act of 1924, 43 Stat. 153, for a temporary period ending January 24, 1950. His application to extend time of stay as a non-quota student was granted to January 23, 1951. A second such application (Exhibit 4 in the hearing record) was filed by plaintiff but never acted upon by the government.
On April 8, 1955, a warrant of arrest was issued for plaintiff's apprehension on the ground that 'after admission to the United States as a student, he failed to comply with the conditions of such status'.
After a hearing, the special inquiry officer found that the charge was sustained on two bases, namely (a) that plaintiff had remained in the United States beyond the permitted time and (b) that plaintiff did in the winter of 1952 engage in gainful employment in the United States without permission of the Immigration and Naturalization Service. He then ordered that plaintiff be deported from the United States, an application for voluntary departure having been made and withdrawn during the hearing.
On appeal, the Board of Immigration Appeals affirmed the decision on the second alleged basis, viz., 'the alien * * * accepted gainful employment in the winter of 1952 without permission from the Immigration and Naturalization Service'.
Presumably, the Board of Immigration Appeals in the exercise of 'such discretion and authority as is appropriate and necessary for the disposition of the case'
reversed sub silentio so much of the decision of the special inquiry officer as purported to sustain the deportation on the ground that the alien remained in the United States beyond January 23, 1951, the expiration date of his first extension of time of stay, and that he therefore failed to comply with the conditions of such status. This presumption is supported by the absence from the hearing record of any evidence on which the special inquiry officer could have found that plaintiff had thus remained in this country beyond the permitted time. Plaintiff's timely filing of an application for an extension beyond January 23, 1951, was established. The only matter tending to show that the application was denied is found in the following colloquy (hearing SM 15-16):
'Special Inquiry Officer (Mr. Kanzler) to Counsel:
'Q. Mr. Amerling, (plaintiff's attorney) do you wish to examine the respondent (plaintiff) on the issue of deportability or do you have any evidence that you would like to present? A. I do.
'I wonder if I may ask Mr. Schiano (Examining Officer) at this point if there is any other record of disposition of the other application which has been identified as Exhibit 4 (plaintiff's last application for extension, not acted upon by the government) today?
'Examining Officer to Counsel:
'Q. Are you referring to the last application? A. Yes, -- the last application.
'Q. There is no communication or copy of communication stating that that application was granted, if it were, Mr. Wang would be in possession of the original ...