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Menon v. Esperdy

decided: June 30, 1969.

ESTERYA MENON AND RUBY REBECCA MENON, AN INFANT UNDER THE AGE OF 14 YEARS, BY HER MOTHER, ESTERYA MENON, RELATORS-APPELLEES,
v.
P. A. ESPERDY, AS DISTRICT DIRECTOR OF THE IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT-APPELLANT



Lumbard, Chief Judge, and Kaufman and Hays, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge:

Relators Esterya Menon and her minor daughter, Ruby Rebecca Menon, were ordered excluded from the United States by the Board of Immigration Appeals on July 13, 1965. Subsequently they received notice from the Immigration and Naturalization Service to report for deportation to Turkey. Relators challenged their exclusion order by bringing a declaratory judgment action in the district court, which properly treated the action as a habeas corpus application under 8 U.S.C. § 1105a(b) (Supp.1969). Judge Cooper's decision and order, filed November 15, 1965, held that the exclusion order was valid, but also ruled that the Menons could not be deported to Turkey since it was not the country "whence [they] came" under § 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (1964). Although both the Menons and the government appealed, the Menons later moved to withdraw their appeal on August 1, 1968, which motion was granted.

We affirm the order of the district court in all respects, and hold that the Menons may be deported only to Switzerland under § 237(a).

Section 237(a) provides a deceptively simple formula for determining the country to which aliens may be deported after they have been found excludable from the United States:

"Any alien * * * arriving in the United States who is excluded under this chapter, shall be immediately deported to the country whence he came, in accommodations of the same class in which he arrived, on the vessel or aircraft bringing him, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper."

Obviously the statute's goal of immediate deportation has not been achieved in this case, despite the absence of any determination by the Attorney General that it is not practicable or proper. Instead, the factual and procedural status of the Menons' case has grown increasingly complex over the course of three years of litigation. It is necessary to review this background in some detail before we can understand how the intent of § 237(a) has been so frustrated, and before we can address the underlying issue of the manner in which the courts should construe the statute.

Mrs. Menon has led a life of international scope, as is indicated by the fact that she speaks seven languages. The record reveals that she was born in Istanbul, Turkey, in 1926, and she is still a Turkish citizen. In 1949 Mrs. Menon moved to Israel; she is of the Jewish faith. While in Israel she met her future husband, V. P. Menon, a national of India employed by the United Nations. Mr. Menon was assigned to Geneva, Switzerland in 1953, and he sponsored the travel of his prospective bride to that city in March of the same year. The Menons were married in Geneva on July 16, 1953. The Menons have not lived together since 1956, but it appears, although the record is not entirely clear on this point, that their marriage is still valid and that no legally effective separation agreement or divorce decree has been obtained.

In 1956 Mr. Menon was transferred to Seoul, Korea, and did not take his wife with him. Their daughter, Ruby Rebecca, born in Geneva July 6, 1956, is a Turkish citizen by virtue of her mother's citizenship.

Mr. Menon was stationed in New York between 1960 and 1962, and during this period Mrs. Menon formed the intention of coming to this country. The record contains a letter to her from Mr. Menon dated December 11, 1961 rejecting her request to come to this country as his dependent, and also stating his desire for a divorce. But Mrs. Menon successfully obtained from the United States consulate in Geneva, on December 8, 1961, a non-immigrant visitor-for-pleasure visa (a "B-2" visa) good for applications for admission to this country until December 8, 1965. The visa has on it the notation "visit relatives," and Mrs. Menon did indeed visit a relative in Detroit while present in this country. Her primary purpose, however, may have been to gain in personam jurisdiction over Mr. Menon in order to sue him for support. She has achieved a certain degree of success in this effort through the New York courts. Although the present status of this litigation is not apparent, at some point Mrs. Menon obtained a court order requiring the payment of $45 a week by her husband, an amount which was deducted by the United Nations from his paycheck and used to finance Ruby's education.

It seems clear that at the time of her application for a visa to this country Mrs. Menon and her daughter were residents of Geneva, living in an apartment still in Mr. Menon's name. The consular officials in Geneva must have believed that Mrs. Menon, upon the conclusion of her visit to the United States, would return to Switzerland, for an alien may not be admitted to this country as a nonimmigrant visitor for pleasure unless he has "a residence in a foreign country which he has no intention of abandoning * * *." 8 U.S.C. § 1101(a) (15) (B). Mrs. Menon did return to her Geneva apartment for one month, in July, 1963, during one of her several temporary absences from the United States which were followed by her readmission to this country as a visitor for pleasure. However, since that date Mr. Menon has sold the apartment, leaving the relators without an established residence anywhere in the world outside of this country. Mrs. Menon does own furniture insured for $10,000 whch is being held in Switzerland for her.

The Menons were first admitted into this country as visitors for pleasure on January 2, 1962, for a period of four months. Thereafter, on eight different occasions, the Menons departed from this country for periods of time ranging from one day to six months, following which they gained readmission to the country under their renewed B-2 visas. All of these trips outside the United States were to Canada, with the exception of the one-month visit to Switzerland in 1963.

On July 25, 1964 the Menons departed from the United States for the ninth time since their original admission in 1962. They stayed in Canada for only two hours, and then sought readmission at the border. On this occasion, either on their own initiative or at the urging of the customs officials, the Menons requested admission not as visitors for pleasure but rather as dependents of a United Nations employee, pursuant to 8 U.S.C. § 1101(a) (15) (G) (iv) (hereinafter referred to as G-4 status). They were paroled into this country pending a determination of their G-4 application, and have remained in that status to this date. Since a parole does not constitute an admission into the United States, Kaplan v. Tod, 267 U.S. 228, 230, 45 S. Ct. 257, 69 L. Ed. 585 (1925), the question on this appeal involves an exclusion under § 237(a) of the Act, 8 U.S.C. § 1227(a) rather than an expulsion under § 243(a), 8 U.S.C. § 1253(a). The provisions of these sections with respect to the place of deportation differ in important respects, as will be noted.

In September and October of 1964 a hearing pursuant to exclusion proceedings was held before a Special Inquiry Officer. 8 U.S.C. § 1226. The Menons appeared with counsel, Jules Coven, Esq., who was appointed by the Officer and served without fee. The Officer's oral decision on October 16, 1964 found the Menons excludable on three grounds: 1) They were likely to become public charges, 8 U.S.C. § 1182(a) (15); 2) They were persons not in possession of the appropriate valid nonimmigrant visas, 8 U.S.C. § 212(a) (26); 3) They are immigrants, because of their intention to stay in the United States for an indefinite period of time, not in possession of the required valid immigrant visas, 8 U.S.C. § 1182(a) (20). The Officer also held that since the United Nations had not granted the Menons G-4 status they could not gain admission as United Nations dependents.

On April 6, 1965, the Board of Immigration Appeals sustained an appeal by the Menons from this decision, finding that they did not intend to stay in this country for an indefinite period. The Board directed that the Menons be admitted as nonimmigrant visitors for pleasure for a period of three months, but under such conditions as the field office of the Immigration and Naturalization Service might wish to impose, including the exaction of a bond. The office, acting under the authority of 8 U.S.C. § 1252(a), required that the Menons post a $500 bond as security for their departure at the expiration of their three-month visa.

Mrs. Menon was unable to post the required bond, and consequently her case was certified back to the Board of Immigration Appeals. After hearing oral argument by Mrs. Menon, who at her own request, appeared without counsel, the Board on July 13, 1965 withdrew its earlier order and affirmed the Special Inquiry Officer's order of October 16, 1964, excluding the Menons. The Board specifically found that the Menons were not entitled to G-4 status, but did not state any reasons for this conclusion.

Neither the Special Inquiry Officer nor the Board in its decision explicitly addressed the question of the place of deportation. This determination was made by the Service, and on October 12, 1965, the Menons received notice to report on October 27 for deportation to Turkey. However, on receipt of this notice Mrs. Menon, who judging from the record is a very determined woman, headed not for the Hudson River piers but for the United States Courthouse.

On October 25, 1965, Mrs. Menon filed suit for a declaratory judgment in the Southern District. The complaint alleged that the action of the Immigration Service in denying the Menons admission to the country was in violation of procedural due process and an abuse of the Service's statutory discretion. On the point now before us Mrs. Menon challenged the right of the Service to order her deportation to Turkey without holding a deportation hearing and affording her an opportunity to demonstrate that Turkey was not the appropriate place of deportation. The relief prayed for was a temporary restraining ...


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