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May 24, 1956

Robert Ernst DICKHOFF, Plaintiff,
Edward J. SHAUGHNESSY, District Director of the Immigration and Naturalization Service at the Port of New York, Defendant

The opinion of the court was delivered by: DIMOCK

Plaintiff, an alien resident, brings this action to set aside an order of deportation against him. He seeks an injunction to prevent defendant from deporting him until final determination of the action. Defendant cross-moves for summary judgment, alleging that only issues of law are involved.

Plaintiff concedes that he entered the United States illegally in 1927. For this reason, plaintiff was declared deportable by the Board of Immigration Appeals on November 17, 1949. The Board stayed deportation, however, and granted him the right to voluntary departure and readmission under the so-called seventh proviso of § 3 of the Immigration Act of 1917, 39 Stat. 878.* When plaintiff failed to avail himself of this privilege during the period set by the Board, the order of deportation attacked in this action was entered.

 During the administrative proceedings that led up to the deportation order plaintiff twice applied for a suspension of deportation, first under § 19(c) of the Immigration Act of 1917, as amended, 54 Stat. 672, and then under § 244(a)(5) of the Immigration Act of 1952, 8 U.S.C. § 1254(a)(5). Under each of these Acts, the Attorney General is granted discretionary authority to suspend deportation under stated conditions. The Attorney General entertained both applications for suspension of deportation. The effect of this was that plaintiff would be statutorily eligible for that relief if he could bring himself within the qualifications prescribed either by the 1917 Act or the 1952 Act. See N.Y.U. Conference on Immigration and Nationality Act 134-35 (1954). The Attorney General, however, denied both applications on the ground that under neither Act was plaintiff statutorily eligible for suspension of deportation. In this action, plaintiff seeks to review both denials. If the Attorney General was incorrect in his finding that plaintiff was not statutorily eligible for suspension of deportation under either the 1917 or 1952 Act, the order of deportation would be invalid, since the Attorney General had failed to exercise the discretion reposed in him, and defendant could not be awarded summary judgment. In determining this matter, I shall consider plaintiff's application under each Act separately.

 I. 1917 Act.

 The Immigration Act of 1917, as amended, 54 Stat. 672, gives the Attorney General discretionary authority to suspend deportation. This relief, however, by statutory reference to 40 Stat. 1012, is withheld from any alien who has been a member of 'any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the Government of the United States'. Plaintiff admits that, for a period of one year in 1929 or 1930, he was technically a member of the Communist Party. The Attorney General therefore held plaintiff statutorily ineligible for suspension of deportation.

 Plaintiff argues that he was merely a nominal member of the Communist Party for a short period and therefore not precluded from obtaining suspension of deportation. In this contention, he relies solely on Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 741, 98 L. Ed. 911. There the Supreme Court quoted a statement in Colyer v. Skeffington, D.C.D.Mass., 265 F. 17, 72, which had been inserted in the Congressional Record by Senator McCarran, sponsor of the bill. That statement, which the Supreme Court considered as 'a weighty gloss' to show what Congress intended, was that:

 "Congress could not have intended to authorize the wholesale deportation of aliens who, accidentally, artificially, or unconsciously in appearance only, are found to be members of or affiliated with an organization of whose platform and purposes they have no real knowledge."

 After thereby excluding from the definition of 'member' those who unknowingly joined the Communist Party, the Supreme Court set down the rule to determine who was included within the term 'member':

 'It must be concluded, therefore, that support, or even demonstrated knowledge, of the Communist Party's advocacy of violence was not intended to be a prerequisite to deportation. It is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization, and that he did so of his own free will.' 347 U.S. at page 528, 74 S. Ct. at page 741.

 As the Supreme Court stated in the Galvan case, where they held that alien deportable, this legislative prescription must be followed 'however severe the consequences and whatever view one may have of the wisdom of the means which Congress employed'. 347 U.S. at page 528, 74 S. Ct. at page 741.

 Plaintiff's membership in the Communist Party was more than merely accidental. Plaintiff's interrogation before the Immigration and Naturalization Service reveals that he knew full well that he was joining the Communist Party. He stated specifically that he joined in order 'to find out for myself what is this all about, this Communism.' (p. 32.) He received a membership book in the Communist Party (p. 31), and paid dues at infrequent intervals (p. 40). Before he joined he attended four meetings of the Communist Party at which he listened to speeches on Communism (p. 33). He knew when he joined that the Communist Party had caused a revolution in Russia and had tried to cause a revolution in Germany (p. 48). After joining, he attended five more meetings (p. 162), at which he received indoctrination on the possible necessity of taking over this country by revolution (pp. 33, 35, 36). He states that ideological differences developed between himself and the Party 'very soon' (p. 40), but he did not resign until one year after joining (p. 39). He resigned, he alleges, because of these differences and because the Communist Party did not afford him the 'spiritual uplift' that he wanted (p. 38).

 It is therefore clear that plaintiff knowingly joined the Communist Party. I have no reason to doubt that, after his short period of membership, he severed all ties with it and is today firm in his renunciation, but, under the 1917 Immigration Act, activity subsequent to membership is irrelevant. No matter how Anti-Communist the alien may now be, the fact that he once knowingly joined the Communist Party makes him statutorily ineligible for suspension of deportation.

 II. 1952 Act.

 Realizing the inequity of this 'once a member, always deportable' theory, Congress, in the 1952 Act, provided that an alien who has completely withdrawn from the Communist Party is eligible for suspension of deportation. The Attorney General denied plaintiff's application under the 1952 Act, however, on the ground that plaintiff, under the statute, could not be found to be a person of good moral character. This finding is required before an alien is eligible for suspension of deportation. 8 U.S.C. § 1254(a)(5).

 Defendant assigns plaintiff's marital status as the stumbling block to a finding of good moral character. Plaintiff married one Rose Covello in 1928 and two children have been born of this marriage. In 1944 they separated and in 1946 plaintiff obtained a Mexican divorce. Neither plaintiff nor his wife went to Mexico to obtain the divorce. Plaintiff was represented by a Mexican lawyer. His wife was served with notice of the action but did nothing to oppose the divorce. On March 30, 1947, plaintiff married his present wife in New Jersey. They have since been cohabiting in New York and have three children by this marriage.

 Defendant argues that plaintiff is now living in adultery since his Mexican divorce was void and, therefore, his second marriage was void. Under the 1952 Immigration Act, 8 U.S.C. § 1101(f), no person 'who * * * has committed adultery' may be regarded as a person of good moral character. This, defendant states, makes plaintiff statutorily ineligible for suspension of deportation.

 This provision excluding 'one who * * * has committed adultery' from the ranks of the possessors of good moral character is not easy of application. In this district alone, I have found four cases which turned on its interpretation. Of those four, two held that the commission of technical adultery precludes good moral character. Petitions for Naturalization of F -- G -- and E -- E -- G -- , D.C.S.D.N.Y., 137 F.Supp. 782; Petition of Matura, D.C.S.D.N.Y., 142 F.Supp. 749. The other two held that technical adultery was not a statutory bar to a finding of good moral character. Petition of Greenidge, D.C.S.D.N.Y., (unreported May 2, 1955); Petition of Racine, D.C.S.D.N.Y., (unreported May 9, 1955).

 All four of these cases involved petitions for naturalization where the consequences of disqualification for technical adultery are much less serious than where deportation is threatened. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S. Ct. 374, 92 L. Ed. 433. Nevertheless we cannot have one interpretation of the same statutory provision when naturalization is involved an another when deportation is involved. If the literal construction is so harsh that we cannot believe that Congress intended us to apply it in ...

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