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United States v. Esperdy

decided: August 30, 1966.

UNITED STATES OF AMERICA EX REL. GRIGORIOS STELLAS, RELATOR-APPELLANT,
v.
P.A. ESPERDY, AS DISTRICT DIRECTOR OF THE IMMIGRATION SERVICE FOR THE DISTRICT OF NEW YORK, OR SUCH PERSON, IF ANY, WHO MAY HAVE SAID GRIGORIOS STELLAS IN CUSTODY, RESPONDENT-APPELLEE



Moore, Smith and Kaufman, Circuit Judges. Moore, Circuit Judge (dissenting).

Author: Smith

SMITH, Circuit Judge:

Grigorios Stellas appeals from an order of the United States District Court for the Southern District of New York, Frederick van Pelt Bryan, Judge, dismissing his application for a writ of habeas corpus. Stellas, an alien, native of Greece, arrived at New York as a crewman on the M/T Andreas on June 23, 1961. He complained of tonsilitis, and was paroled into this country for medical treatment for one month. At the same time, his crewman's landing permit, under which he had previously made a number of landings was revoked. At the expiration of the parole, he failed to return to his vessel or to the Immigration and Naturalization Service, and remained at large until July 11, 1963, when he was found by the INS, and his parole was revoked. Of course, by then his parole had long since expired. By that time, however, he had married a United States citizen, and had one daughter, with another child expected. The District Director reparoled Stellas so that he could remain with his wife in her condition. Parole was to continue until 30 days after the termination of her pregnancy.

Mrs. Stellas promptly filed a petition with the INS to have Stellas accorded non-quota immigrant status.*fn1 The petition was approved by the District Director on August 4, 1963. In accordance with his plan to perfect his status, Stellas indicated that he would go to Caracas, Venezuela, to file for an immigrant visa. Allegedly for financial reasons, however, he was never able to do so. Parole was periodically extended, the last time until March 16, 1966, for completion of the immigrant visa.

But on November 10, 1965, Mrs. Stellas expressed a wish that the petition be withdrawn, alleging that she was in fear of bodily harm, and asking that her husband be deported. She signed a request for withdrawal of the petition. By applicable regulation, 8 C.F.R. § 206.1(b) (1), approval of the visa petition was automatically revoked. Stellas' parole was then revoked, by notice to him, and only the issuance of an order of the District Court prevented his summary deportation.

On December 6, 1965, after an apparent reconciliation, Mrs. Stellas filed a new visa petition to accord Stellas immediate relative status,*fn2 but at the time indicating that she was acting under pressure from her husband's relatives and friends. After an investigation, Mrs. Stellas indicated she wished to withdraw the petition, and did so December 15.*fn3 The District Court denied the writ and Stellas appeals. We find no error and affirm.

Although Stellas originally could have come ashore on his crewman's landing permit, he actually was paroled into this country. § 212(d) (5) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(d) (5). Accordingly, both as a matter of statutory construction, Kaplan v. Tod, 267 U.S. 228, 45 S. Ct. 257, 69 L. Ed. 585 (1925), Leng May Ma v. Barber, 357 U.S. 185, 78 S. Ct. 1072, 2 L. Ed. 2d 1246 (1958), Licea-Gomez v. Pilliod, 193 F. Supp. 577 (N.D. Ill.1960), and as a matter of the scope of constitutional guarantees, Wong Hing Fun v. Esperdy, 335 F.2d 656 (2d Cir. 1964), cert. denied sub nom. Ng Sui Sang v. Esperdy, 379 U.S. 970, 85 S. Ct. 667, 13 L. Ed. 2d 562 (1965), Ahrens v. Rojas, 292 F.2d 406 (5th Cir. 1961), Stellas may be deported without a hearing. See also United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (2d Cir. 1965). Since he was paroled into the country, it is as if he were "stopped at the limit of our jurisdiction," United States v. Ju Toy, 198 U.S. 253, 263, 25 S. Ct. 644, 646, 49 L. Ed. 1040 (1905), and it is the same "as if [he] never had been removed from the steamship," Nishimura Ekiu v. United States, 142 U.S. 651, 661, 12 S. Ct. 336, 339, 35 L. Ed. 1146 (1892). As the Court recognized in Leng May Ma, supra, there is no difference between parole and detention ashore.

Accordingly, Stellas is being excluded, not expelled, and no hearing is necessary, since he does not make a claim of citizenship. Any procedure authorized by Congress for the exclusion of aliens is due process, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S. Ct. 309, 94 L. Ed. 317 (1950), a point on which the Court was unanimous. Exclusion raises no due process question. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S. Ct. 625, 97 L. Ed. 956 (1953).

Petitioner suggests that it was improper for the INS to revoke his landing permit and instead to parole him, and he claims that if he had entered under his landing permit, he would have had the protection of full-scale deportation procedure, upon a revocation of the permit, or upon his failure to return to the ship, and could not be summarily deported. This misreads the statute. Sec. 252(b) of the Act, 8 U.S.C. § 1282(b), provides that plenary deportation procedure, that required by § 242 of the Act, 8 U.S.C. § 1252, is not required in deporting an alien on revocation of his permit. Nor does the Constitution compel a different result. Appellant's permit, like all others, states, "By accepting this conditional permit to land the holder agrees to all the conditions incident to the issuance thereof, and to deportation * * * in accordance with the provisions of § 252(b) * * *." Had appellant entered on a permit, he would have waived any Constitutional right to fullscale deportation proceedings. Compare United States ex rel. Szlajmer v. Esperdy, 188 F. Supp. 491 (S.D.N.Y.1960).

In any case, Stellas was here in November and December, 1965, on reparole. When apprehended on July 11, 1963, his permission to land would have long expired, as all are limited by statute, § 252(a) (2) of the Act, 8 U.S.C. § 1282 (a) (2) to 29 days. He was then obviously deportable. Having subsequently been reparoled, and his wife having then filed her petition, occasioning his parole on yet a third ground, Stellas is in no position to complain. And whether or not his initial parole, for medical reasons, was proper, his reparole was proper. Moreover, while the "permanent type landing permit," 8 C.F.R. § 252.4(a), of which Stellas was allegedly possessed, is revocable under the Regulation for wilful violation of its terms, or when its holder is ineligible for it, or inadmissible, these categories of revocability are not intended to be exclusive. Since under the statute, § 252 of the Act, 8 U.S.C. § 1282, a permit is given each time the crewman arrives, and it is explicitly within the discretion of the immigration officer to grant a permit, he has discretion to revoke the "permanent type landing permit" on any entry of the crewman.

The sole meritorious ground for appeal is the claim that the procedure followed by the INS is not authorized by the Act, and is an abuse of discretion, in that the automatic revocation of a visa petition upon its withdrawal by the citizen spouse, 8 C.F.R. § 206.1(b) (1), conflicts with the statute, § 206 of the Act, 8 U.S.C. § 1155, which provides that the Attorney General may, at any time, "for what he deems to be good and sufficient cause" revoke a visa petition.*fn4 We read the statute as affording the Attorney General the usual measure of administrative discretion.

The Regulation does not create a rule at odds with the statute. Sec. 206 does not prevent the Attorney General from formulating rules which irrevocably govern the question of revocation of visa petitions. That question, as we have said, is a matter confined to his discretion. But the Attorney General may govern the exercise of his discretion by written or unwritten rules; indeed it would be remarkable if he did not. Any such decision is an application of facts to principles. All this regulation does is provide a substitute for the exercise of discretion on a case by case basis. But there has been an exercise of discretion; in effect, the Attorney General has announced that he deems it good and sufficient cause, in every case, to revoke on withdrawal. We know of no rule which requires a case by case approach; the Attorney General certainly may proceed by regulation. Contrast United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954).

In Mastrapasqua v. Shaughnessy, 180 F.2d 999, 1002 (2d Cir. 1950) this court stated that a refusal to exercise discretion occurs

when an official sets up a class of cases as to which he refuses ever to exercise any [further] discretion, one way or the other, if that class is not rationally differentiated from other cases, not within ...


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