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UNITED STATES EX REL. STELLAS v. ESPERDY

February 2, 1966

UNITED STATES of America ex rel. Grigorios STELLAS, Relator,
v.
P. A. ESPERDY, as District Director of the Immigration Service of the District of New York, or such person, if any, who have said Grigorios Stellas in custody, Respondent


Frederick van Pelt Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

Relator Stellas petitions for habeas corpus claiming that he is illegally detained by the Immigration and Naturalization Service for summary deportation.

 Stellas, a native and subject of Greece, arrived in New York on June 23, 1961, as a member of the crew of the M/T Andreas. He was found to be in need of medical treatment and was paroled for that purpose under the provisions of 8 U.S.C. § 1182(d)(5), *fn1" and the applicable regulation. *fn2" Upon expiration of his parole period Stellas absconded and remained at large until July 11, 1963, when he surrendered himself to immigration officials in New York City.

 In the interim, however, Stellas had married an American citizen, Nancy Arnold, in New York on January 15, 1962. A child was born of this marriage on June 12 of that year, and at the time of Stellas's surrender on July 11, 1963, his wife was expecting a second child.

 In view of the family situation the Immigration and Naturalization Service re-paroled Stellas to afford him an opportunity to adjust his immigrant status. On July 25, 1963, Stellas's wife filed a visa petition with the District Director pursuant to 8 U.S.C. § 1155(b) *fn3" in order to accord her husband nonquota immigrant status under 8 U.S.C. § 1101(a)(27)(A). *fn4" The petition was approved on August 4, 1963, see 8 U.S.C. § 1155(c), and forwarded to the American Consulate at Caracas, Venezuela, where Stellas was to perfect his nonquota status. *fn5" However, for the following two years Stellas did nothing to pursue actively his application in Caracas. This procrastination was claimed to be due to financial difficulties. Under the circumstances the parole period was extended from time to time by the Immigration Service. The most recent extension was to expire on March 16, 1966.

 However, on November 10, 1965, Mrs. Stellas filed a written statement with the Service withdrawing the visa petition she had previously filed on behalf of her husband. Thereupon on November 18 the Service notified Stellas that his parole had been revoked pursuant to 8 U.S.C. § 1182(d)(5). Stellas appeared voluntarily, and on November 19 he had been taken to the airport for deportation when this writ issued.

 On December 6 Mrs. Stellas filed a new petition, apparently in response to pressure from her husband's friends. But on December 15 she withdrew this petition, as well, when she appeared at the office of the Service for further questioning.

 Relator Stellas first contends that the summary revocation of his parole without a hearing denies due process, or at least constitutes an abuse of administrative discretion which would justify granting the writ.

 The power of Congress to determine the conditions under which aliens may enter and remain in the United States is beyond question. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S. Ct. 625, 97 L. Ed. 956 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S. Ct. 309, 94 L. Ed. 317 (1950). Section 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5), states unequivocally that parole "shall not be regarded as an admission of the alien" and that after his return to custody "his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." Thus parole functions simply as a device to avoid the necessity of needless confinement. See Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S. Ct. 1072, 2 L. Ed. 2d 1246 (1958); Licea-Gomez v. Pilliod, 193 F. Supp. 577 (N.D.Ill.1960). In legal fiction the parolee is treated as if he were "stopped at the boundary line." Kaplan v. Tod, 267 U.S. 228, 230, 45 S. Ct. 257, 69 L. Ed. 585 (1925); see Leng May Ma v. Barber, supra; Rogers v. Quan, 357 U.S. 193, 78 S. Ct. 1076, 2 L. Ed. 2d 1252 (1958).

 As a result an alien paroled under 8 U.S.C. § 1182(d)(5) cannot claim the procedural protections - including a full hearing on revocation - which are generally afforded to those who have already gained admission to the country, whether legally or illegally. *fn6" This is not to say that summary revocation of parole will never amount to a deprivation of due process. See United States ex rel. Paktorovics v. Murff, 260 F.2d 610 (2 Cir. 1958); Hart & Wechsler, The Federal Courts and the Federal System 328-35 (1953); cf. Note, Deportation and Exclusion: A Continuing Dialogue Between Congress and Courts, 71 Yale L.J. 760, 788 n. 136 (1962). Indeed, the legal fiction strains credulity where, as here, one "stopped at the boundary line" has nevertheless managed to marry and to father two children in the United States.

 However, the Second Circuit has squarely held that an alien on temporary parole is not entitled - either as a matter of statutory interpretation *fn7" or constitutional due process - to a hearing on the revocation of his parole precedent to deportation from the country. Wong Hing Fun v. Esperdy, 335 F.2d 656 (2 Cir. 1964), cert. den., Ng Sui Sang v. Esperdy, 379 U.S. 970, 85 S. Ct. 667, 13 L. Ed. 2d 562 (1965); see Ahrens v. Rojas, 292 F.2d 406 (5 Cir. 1961) (same). And this conclusion was reaffirmed in United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (2 Cir. 1965), where the court held that a medical parolee who had overstayed his temporary parole stood in no better position with respect to a hearing.

 Under the present circumstances relator's contention that constitutional rights are infringed by a failure to afford an alien parolee a hearing on the question of the revocation of his parole is untenable. Stellas's parole was terminated because his wife withdrew the visa petition which was the only avenue available for adjusting his immigrant status. Since the purpose for the parole no longer existed, the revocation was in full conformity with statutory requirements, and under the case law no hearing was required. Compare Brownell v. Tom We Shung, 352 U.S. 180, 182 n. 1, 77 S. Ct. 252, 1 L. Ed. 2d 225 (1956).

 Relator Stellas next contends that the revocation of his visa petition effected by the mere withdrawal of his wife's application, constitutes a denial of due process. Under 8 U.S.C. § 1156 the Attorney General may revoke approval of a prior petition for "good and sufficient cause." *fn8" By regulation thereunder, however, revocation of a visa petition is automatically accomplished by withdrawal of a spouse's application. 8 C.F.R. § 206.1(b)(1). *fn9"

 Such a result does not constitute a deprivation of due process. The right to file a petition under 8 U.S.C. § 1155 is a right afforded to a citizen spouse who wishes to keep the family together. Even after the petition of the spouse is initially approved, as occurred in this case, an alien does not attain the status of a nonquota immigrant until the petition is acted upon favorably by the appropriate consular office. See Amarante v. Rosenberg, 326 F.2d 58 (9 Cir. 1964). Thus in Scalzo v. Hurney, 225 F. Supp. 560 (E.D.Pa.1963), aff'd, 338 F.2d 339 (3 Cir. 1964), the court held that an alien parolee did not acquire a vested right to permanent nonquota immigrant status when the application of her husband was initially approved, but was later withdrawn due to marital discord. See Ferraiola v. Murff, 157 F. Supp. 611 (S.D.N.Y.1958). And in Pereira v. ...


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