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Maccaud v. Immigration and Naturalization Service

decided: July 3, 1974.

NORMAN D. MACCAUD, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. NORMAN D. MACCAUD, PLAINTIFF-APPELLANT, V. UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Petition for review of order of Board of Immigration Appeals dismissing appeal from decision of Special Inquiry Officer ordering deportation and appeal from judgment of the United States District Court for the District of Connecticut, Robert C. Zampano, J., denying application for writ of mandamus to compel the Attorney General to perform certain acts pursuant to 8 U.S.C. § 1253(g).

Moore and Feinberg, Circuit Judges, and Weinfeld, District Judge.*fn*

Author: Feinberg

FEINBERG, Circuit Judge.

Norman D. MacCaud, an admittedly deportable alien,*fn1 petitions this court for review of an order of the Board of Immigration Appeals (the Board) dismissing his appeal from a Special Inquiry Officer's decision, which designated Canada as an alternate country of deportation, 8 U.S.C. § 1253(a), and denied his application for withholding of deportation to Canada pursuant to 8 U.S.C. § 1253(h). MacCaud also appeals from a judgment of the United States District Court for the District of Connecticut, Robert C. Zampano, J., 354 F. Supp. 872 (1972), denying his application for a writ of mandamus to compel the Attorney General to notify the Secretary of State that Ireland had refused to accept him as a deportee, in order that the Secretary might then invoke the sanctions against that country provided for by 8 U.S.C. § 1253(g). MacCaud's appeal and his petition for review were heard together. We dispose of both in this opinion and, for purposes of convenience, will refer to MacCaud throughout as "appellant."

I

The same facts underlie the appeal and the petition for review. MacCaud is an alien -- a native and citizen of Canada -- who was previously deported from this country for illegal entry in May 1963. In December 1971, according to the Government's uncontradicted representations, appellant escaped from a Canadian prison and re-entered the United States illegally. Appellant had been serving a sentence in Canada for possession of counterfeit bank notes. After his arrest by the F.B.I. in January 1972, the Immigration and Naturalization Service (the Service) commenced deportation proceedings against him. At a hearing that same month, MacCaud exercised his statutory option to designate in the first instance the place of deportation. 8 U.S.C. § 1253(a). He chose the Republic of Ireland, from which he had obtained a passport in 1971 on the ground that his father had been born in Dublin. The Special Inquiry Officer honored his selection but provided that if Ireland did not accept him in accordance with the governing statute, the hearing would be reopened to allow for the naming of a different country of deportation.

In June 1972, claiming that Ireland had refused to permit MacCaud to enter as a deportee, the Service successfully moved, over appellant's objections, to reopen the proceedings. After a further hearing the Special Inquiry Officer, in December 1972, ordered MacCaud's deportation to Canada if, prior to the time that such deportation could be effected, "the Republic of Ireland has not advised the Attorney General it is willing to accept [appellant] into its territory . . . ." The Officer's decision also rejected MacCaud's request for relief under 8 U.S.C. § 1253(h), which authorizes the Attorney General to withhold deportation to any country where the alien would meet with political persecution.*fn2 In September 1973, the Board upheld the order, dismissing MacCaud's appeal.

Meanwhile, in July 1972, MacCaud had filed an action in the United States District Court for the District of Connecticut, seeking an injunction against further deportation proceedings and a writ of mandamus to force the Attorney General to take action against the Irish Republic because of its refusal to accept him. In October, Judge Zampano denied relief to appellant in all respects.

II

In his petition for review of the Board's ruling,*fn3 MacCaud protests the designation of Canada as an alternative place of deportation. The governing statute, 8 U.S.C. § 1253(a), reads in pertinent part as follows:

The deportation of an alien in the United States . . . shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory . . . . If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject national or citizen if such country is willing to accept him . . . .

On February 17, 1972, after appellant had exercised his option under the statute by naming Ireland as the country to which he wished to be sent, the Attorney General -- through the Service*fn4 -- fulfilled his duty of inquiry, United States ex rel. Man v. Murff, 264 F.2d 926 (2d Cir. 1959), by forwarding a letter to the Irish Government requesting the requisite travel document for MacCaud. Enclosed were his Irish Republic passport as well as certain pertinent documents, including a Form I-217, Information for Travel Document or Passport, and a Form I-215a affidavit, which MacCaud had completed in April 1963. On these forms appellant had written that his father's place of birth was Scotland and not, as he later maintained, Ireland. (As previously indicated, MacCaud obtained an Irish passport in 1971 by claiming that his father was born in Dublin.) On May 9, 1972, the Consulate General of Ireland informed the United States authorities by letter*fn5 that the Irish Government had refused to issue a travel document to enable MacCaud to enter as a deportee. The Service thereupon moved to reopen deportation proceedings and, pursuant to the statute, succeeded in having Canada, the country of MacCaud's nationality, declared an alternative place of deportation.

In the face of Ireland's failure to accept him appellant makes two arguments. First, he contends that the Service did not make a fair and adequate inquiry, United States ex rel. Scala di Felice v. Shaughnessy, 114 F. Supp. 791, 795 (S.D.N.Y. 1953), and transmitted incorrect information. Cf. Bong v. Esperdy, 200 F. Supp. 273, 274 (S.D.N.Y. 1961). But MacCaud has offered no evidence to show why the challenged data is unreliable. Lacking such proof, he cannot object to the Government's sending of obviously relevant documents, such as the two 1963 forms, merely because they are prejudicial.

Second, appellant urges that a later communication to him from the Irish Department of Justice, dated November 2, 1972, indicates that Ireland had changed its stance and decided to let him enter. But all that the letter -- illegibly signed by an unidentified signer -- says is "that if you are in a position to satisfy an immigration officer at a port of entry to this country that you are an Irish citizen you will be admitted whether you are travelling on foot of a deportation order or otherwise." Even ignoring its untimeliness,*fn6 this note appears to be no more than a restatement of Irish law to the effect that appellant will be admitted if he can prove his citizenship, the very fact put in issue by his prior sworn statement (in the Form I-215a affidavit) that his father was born in Scotland. It is scarcely the affirmative acceptance required by section 1253(a). United States ex rel. Wong v. Esperdy, 197 F. Supp. 914, 917 (S.D.N.Y. 1961). ...


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