The opinion of the court was delivered by: DAWSON
This is a motion for a temporary injunction to stay the deportation of the plaintiff. The defendant has cross-moved for summary judgment.
The plaintiff is a twenty-four year old Greek seaman who entered the United States on October 10, 1955 as a member of a ship's crew. He has been ordered deported on the ground that he has remained in the United States beyond the time allowed him as a non-immigrant seaman.
A hearing was held before a Special Inquiry Officer of the Immigration and Naturalization Service at which plaintiff was represented by counsel. The Special Inquiry Officer found the plaintiff deportable and not entitled to the favorable exercise of administrative discretion to permit voluntary departure. An appeal was taken to the Board of Immigration Appeals which, after consideration of counsels' arguments and examination of the record, dismissed the appeal.
The plaintiff does not contend that he is legally in the country. The issue of his deportability has not been raised on this motion. As a matter of fact, at the hearing before the Special Inquiry Officer, no evidence was offered by plaintiff on the issue of deportability. The issue raised herein solely relates to the question as to whether plaintiff should have been entitled to make a voluntary departure.
At the hearing before the Special Inquiry Officer plaintiff made application for the privilege of voluntary departure, under the provisions of 8 U.S.C.A. § 1254(e). The hearing officer found that plaintiff was statutorily eligible for the privilege of voluntary departure but concluded:
'* * * While, as previously indicated, it is found that this respondent is statutorily eligible for the relief of voluntary departure, it is considered in light of the other factors of record, particularly his association with the O.E.N.O., his refusal to admit or deny membership in the Communist Party of Greece, his admitted efforts in obtaining subscriptions and collections of subscription fees for the 'Naftergatis', a newspaper which he admits was published by the O.E.N.O., as well as the attitude of this respondent that the Government of the United States has no right to inquire into his political beliefs, that this respondent has not demonstrated that he is a person deserving of favorable administrative discretion.'
Plaintiff admitted at the hearing that he was a member of the O.E.N.O., an association of Greek seamen which plaintiff admitted was outlawed as illegal by the Greek Government. He was then asked:
'Q. Are you now a member of a Communist Party?
'A. Everybody can believe whatever he wants to believe in.
'Q. Please answer the question.
'A. Everybody has his own beliefs. You cannot command me what to believe in.
'Q. Do you believe in Communism?
'A. That concerns me, no one else.' Transcript p. 45.
Plaintiff asks relief in this proceeding on ...