by 1:00 P.M. on June 30 or in the alternative to deliver him to the District Director at New York by 10:00 A.M. on July 1, will be deemed a violation of the conditions of the bond posted by you.
'Very truly yours, 'C. Garfinkel 'Officer in Charge'
The petitioner secured new legal counsel and on July 1, 1952, the petition for review was presented in this Court. Prior to the filing of the proceeding in this Court, petitioner's new counsel arranged with the District Director of Immigration and Naturalization in the City of Philadelphia that petitioner be permitted to report to the District Director of the Immigration and Naturalization Service in the City of New York, New York, rather than to the Officer in Charge in the City of Pittsburgh. The petitioner has not been before the Court and has appeared solely through his legal counsel.
On the basis of the above facts, question exists as to whether or not the Court has jurisdiction to entertain the petition for review and consider the questions which have been raised as to the constitutionality of the Act of Congress, 8 U.S.C.A. § 155, under which the Commissioner of Immigration and Naturalization Service in the District of Columbia has based his order and warrant of deportation. The Court may take judicial notice of the fact that the official residence of the Commissioner is in the District of Columbia. Podovinnikoff v. Miller, 3 Cir., 179 F.2d 937.
It is my judgment that the letter written by the Officer in Charge in the City of Pittsburgh, Pennsylvania, is purely an administerial act and is not an order such as would justify this Court in entertaining jurisdiction. Williams v. Fanning, 332 U.S. 490, 68 S. Ct. 188, 92 L. Ed. 95; Podovinnikoff v. Miller, supra; Slavik v. Miller, D.C., 89 F.Supp. 575, affirmed 3 Cir., 184 F.2d 575, certiorari denied 340 U.S. 955, 71 S. Ct. 566, 95 L. Ed. 688.
The petitioner asks this Court to hold unlawful and to set aside as null and void the orders of the Commissioner and/or District Director as being contrary to law and constitutional right. He also asks for an injunction pendente lite.
The relief sought requires more than a determination by the court of pure legal questions relating to the Commissioner's statutory power. Questions are also raised as to the manner in which the Commissioner has exercised his power.
Plaintiff does not ask for injunctive relief other than that referred to above, nor is there a prayer for general relief. Assuming, however, that the court, having taken jurisdiction of the actions, could grant all relief it deems appropriate, including injunctive relief, nevertheless, it does not appear that injunctive relief would be effective. To enjoin enforcement of the deportation orders by the subordinate before the court would be meaningless without concurrence in the decree by his superior. The Commissioner, his superior, would not be bound by the decree and could enforce the deportation orders in another district.
It is my considered judgment that the nature and extent of the relief sought here makes the Commissioner an indispensable party. The acts and powers of the Commissioner are in question.
I, therefore, conclude that the proceeding must be dismissed because the court lacks jurisdiction over an indispensable party. Dismissal is without prejudice, however, to the petitioner proceeding forthwith in a court authorized to entertain jurisdiction.
In view of the fact that the Fourth of July holiday will possibly make it difficult for the petitioner and his counsel to present an appeal from this order to the United States Court of Appeals for the Third Circuit, or to have his proceeding filed and heard in a court of competent jurisdiction, and for the reason that the petitioner was to be placed on a boat on July 3, 1952 for transportation to Portugal, in the interests of justice I believe that an opportunity should be afforded to present the questions which exist to an appropriate Federal tribunal before the order of the Commissioner is effectuated.
An appropriate Order is, therefore, entered.
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