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UNITED STATES EX REL. MCLEOD v. GARFINKEL

March 25, 1955

UNITED STATES of America ex rel. Clifford N. McLEOD,
v.
C. GARFINKEL



The opinion of the court was delivered by: GOURLEY

This is a second in a series of habeas corpus petitions instituted after the issuance of a deportation order against C. N. McLeod.

On January 23, 1941, the United States Department of Justice, Immigration and Naturalization Service, ordered his deportation premised upon the following:

 (a) He had entered the United States without a visa.

 (b) He had remained in the United States beyond such time as he was permitted under law.

 (c) He had been convicted of a crime involving moral turpitude. It appears that on April 21, 1933, at New York City, New York, he was convicted on an indictment charging petty larceny.

 As a result of petitioner's request for suspension of deportation on grounds that his deportation would cause great hardship to his dependent wife and child who are citizens of the United States, his deportation was delayed by the Immigration and Naturalization Service to permit him to process his application for a pardon to the authorities of the State of New York, both prior to the issuance of the order of this court of January 15, 1954 as well as subsequent thereto.

 On January 13, 1955, a request was made to the United States Department of Justice, Immigration and Naturalization Service, on behalf of petitioner for a stay of deportation pending final disposition of his application for pardon by the State of New York, Executive Department, Division of Parole. Nevertheless, the Attorney General of the United States has refused to stay said deportation until the State of New York has taken final action upon the application for pardon.

 Upon lengthy and most through hearing, during which detailed testimony was elicited, I had opportunity to glean the exact nature of the offense of petty larceny for which petitioner had been convicted. He had been guilty of removing a union card from a woman's purse when she voluntarily refused to give it to him.

 I do not presently intend to alter, amend or disturb the ruling which this court enunciated on January 15, 1954.

 Nevertheless, in view of the extended period of time which the Attorney General made available to process the pardon from the State of New York, both before as well as subsequent to the issuance of the order of January 15, 1954, it is my judgment that the action of the Attorney General in denying petitioner a stay of deportation pending final disposition of his application for pardon is arbitrary and capricious.

 I do not suggest that the granting of a pardon, if such were to be secured, should prove conclusive one way or the other in the final determination of the Immigration and Naturalization Service as to the propriety of petitioner's deportation.

 I must conclude, however, that failure to provide petitioner with an opportunity to obtain a ruling on his request for pardon for a crime involving moral turpitude, upon which a deportation order is to a certain degree based, is arbitrary and capricious, and would justify a stay of deportation for a period of sixty days in order to give petitioner sufficient time to obtain a final ...


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