The opinion of the court was delivered by: BRYAN
Plaintiff Rizzi is an alien against whom an order of deportation is outstanding. In this action he seeks judicial review, pursuant to Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, of an order denying him the privilege of voluntary departure and directing his deportation, and a judgment, pursuant to the Declaratory Judgments Act, 28 U.S.C. § 2201, that the order is illegal and void.
Rizzi is a native and citizen of Italy who entered the United States on November 14, 1956 as a non-immigrant crewman on temporary shore leave not to exceed twenty-nine days. He remained in this country when his shore leave expired without permission or authority.
On April 18, 1958 he was arrested by the immigration authorities and an order to show cause and notice of hearing in deportation proceedings was served upon him. A deportation hearing was held before a special inquiry officer, pursuant to 8 U.S.C.A. § 1252 and 8 C.F.R. § 242, at which Rizzi, without conceding deportability, made application for leave to depart voluntarily in order that he might reenter without complying with the more onerous conditions applicable to re-entry after deportation. After a full hearing the special inquiry officer found that Rizzi was illegally in this country and therefore deportable, as he plainly was on the undisputed facts, but that he was eligible for voluntary departure under 8 U.S.C.A. § 1254. However, in the exercise of his discretion, the special inquiry officer denied Rizzi the privilege of voluntary departure and ordered him deported.
Rizzi appealed to the Board of Immigration Appeals from the order of the special inquiry officer denying him voluntary departure and directing his deportation. The Board found that Rizzi was deportable and that since he had been in the United States for less than five years, under 8 C.F.R. § 242.21(a) there was no appeal from the order of the special inquiry officer denying voluntary departure as a matter of administrative discretion. However, Rizzi's counsel urged upon the Board that it consider the issue of voluntary departure upon its own certification, pursuant to C.F.R. § 6.1(c). On this question the Board 'carefully considered the issue of discretionary relief' and held:
'* * * We agree with the special inquiry officer that under the circumstances here presented, notwithstanding respondent's family ties in the United States, voluntary departure is not warranted as a matter of administrative discretion. We find no basis upon which to certify the case for reconsideration of the issue of discretionary relief. The appeal is deportation proceedings will be dismissed.'
Rizzi thereafter was released upon an appearance bond and brought the present action.
Rizzi concedes that he is deportable. He contends, however, that the order denying him voluntary departure and ordering his deportation is illegal and should be set aside on the grounds (1) that the regulation of the Attorney General which makes final and non-appealable a decision of a special inquiry officer which denies as a matter of discretion an application for voluntary departure by an alien statutorily eligible therefor (8 C.F.R. § 242.21(a)) deprived him of due process of law and is unconstitutional and void, and (2) that the special inquiry officer abused his discretion in denying the application for voluntary departure.
Rizzi has moved before me to stay his surrender and deportation until the final determination of this action. The defendants have cross-moved (a) to dismiss the action as to defendant Swing as Commissioner of Immigration, and Rogers as Attorney General, pursuant to Rule 12(b), F.R.Civ.P., 28 U.S.C., on the ground that venue has been improperly laid against them in this district, and that neither has been served with process, is subject to such service, or has consented to such service in this district, and (b) on behalf of defendant Murff for summary judgment, pursuant to Rule 56, F.R.Civ.P. It is the cross-motions which raise the material issues presented for decision here.
The cross-motion to dismiss as to defendants Swing and Rogers is plainly well taken, as plaintiff seems to concede. The Commissioner of Immigration and the Attorney General have their official residences in Washington, D.C. Neither of them have been served personally within this district, nor have they consented to be sued here. There is no statutory authority for suit against them outside the district of their official residence, the District of Columbia. Neither of these defendants is before the court and the court has no jurisdiction over them. The motion to dismiss as to them is granted. See Connor v. Miller, 2 Cir., 178 F.2d 755; Rodriguez v. Landon, 9 Cir., 212 F.2d 508; Blackmar v. Guerre, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534.
This leaves for determination the motion for summary judgment in favor of defendant Murff. That motion is based on the administrative record which is before me. No material facts are added by the affidavits submitted by the parties.
Rizzi raises no question as to the validity of the statute and regulations under which deportation proceedings are held before a special inquiry officer nor as to the procedure prescribed for such hearing. 8 U.S.C.A. § 1252(b), 8 C.F.R. Part 242. Nor does he question the power of the Attorney General to delegate to the special inquiry officer at such a hearing the discretion to determine whether or not the privilege of voluntary departure should be granted.
However, he attacks the regulation of the Attorney General which provides that no appeal lies from a decision of a special inquiry officer denying the application for voluntary departure in lieu of deportation of a statutorily eligible alien who has been in the United States for less than five years. 8 C.F.R. § 242.21(a).
Rizzi's argument seems to be that the denial of the right to have the decision of the special inquiry officer reviewed 'by an administrative board such as the Board of Immigration Appeals representing the Attorney General' is a denial of due process. He therefore asserts that regulation 242.21(a) is unconstitutional and void, that he has been denied due process of law in these proceedings, and that the order of deportation must be set aside.
Rizzi cites no authority to support this contention and I fail to see that it has any merit. The Immigration and Nationality Act specifically provides that a special inquiry officer shall conduct deportation hearings and shall make determinations therein, as authorized by the Attorney General. 8 U.S.C.A. § 1252(b). The proceedings shall be in accordance with such regulations as the Attorney General shall prescribe 'not inconsistent with this chapter'. The statute provides that this is the 'sole and ...