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Lavdas v. Holland

decided.: July 11, 1956.


Author: Hastie

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This appeal has been taken from an order of the district court, which granted summary judgment denying an alien petitioner, Aristoteles Lavdas, relief from pending deportation to his native Greece. More particularly, it was petitioner's unsuccessful complaint that a Regional Commissioner of the Immigration and Naturalization Service had arbitrarily and unlawfully determined that petitioner did not qualify as a "displaced person" entitled to adjustment of his immigration status to that of a permanent resident under Section 4 of the Displaced Persons Act of 1948, as amended, 50 U.S.C.Appendix ยง 1953.

Lavdas found himself in difficulty because after his temporary entry into this country on October 7, 1947 as a nonimmigrant seaman, he long overstayed the brief lawful sojourn to which his status entitled him. Then, to obtain a change of status which would enable him to remain in this country he attempted to bring himself within the protection of the Displaced Persons Act. Section 4 of that Act which he invoked provides as follows:

"(a) Any alien who (1) entered the United States prior to April 30, 1949, * * * and (2) is otherwise admissible under the immigration laws, and (3) is a displaced person residing in the United States * * * may * * * apply to the Attorney General for an adjustment of his immigration status. If the Attorney General shall, upon consideration of all the facts and circumstances of the case, determine that such alien has been of good moral character for the preceding five years and that such alien is qualified under the provisions of this section, the Attorney General shall report to the Congress all of the pertinent facts in the case. If * * * the Congress passes a concurrent resolution stating in substance that it favors the granting of the status of permanent residence to such alien the Attorney General is authorized, * * * to record the admission of the alien for permanent residence as of the date of the alien's last entry into the United States. If * * * the Congress does not pass such resolution, the Attorney General shall thereupon deport such alien in the manner provided by law: * * *

"(b) When used in this section the term 'Displaced Person residing in the United States' means a person who establishes that he lawfully entered the United States as a nonimmigrant * * * and that he is a person displaced from the country of his birth, or nationality, or of his last residence as a result of events subsequent to the out-break of World War II; and that he cannot return to any of such countries because of persecution or fear of persecution on account of race, religion or political opinions."

Petitioner's application for change of status under Section 4 was considered and disposed of under procedure duly prescribed by the Attorney General. 8 C.F.R. 171.10-171.11 (1949 ed.); 8 C.F.R. 9.5a (aaa) (1952 ed.) He was permitted to present evidence in support of his claim before a Special Inquiry Officer who made a report to a Regional Commissioner, recommending that the application be denied. The Regional Commissioner is the officer designated by the Attorney General to decide on the entire record and in all the circumstances of a given case whether the application to remain here as a "displaced person" shall be approved and submitted to Congress as provided in the statute, or denied. No administrative appeal lies from that decision.

In this case the entire record was submitted to and considered by a Regional Commissioner. His dispositive action consisted of a brief finding and decision, reading in its entirety as follows:

"Upon consideration of the entire record and the exceptions filed, it is found that the exceptions are without merit and that the application should be denied, as the alien could return to the country of birth, nationality and last residence without persecution or fear of persecution on account of race, religion or political opinion."

That administrative action is the matter under review in the present proceeding. The judicial task is to decide whether the administrative officer acted arbitrarily or in misconception of the law in ruling that Lavdas could return to Greece, the country of his birth, nationality and last residence, without "fear of persecution on account of * * * political opinion". In our view the administrative conclusion, beyond being consistent with the evidence, was the only conclusion which the evidence permitted.

The entire record of the administrative proceeding was before the district court and is before us. First, it appeared that Aristoteles Lavdas was a native of Andros, a tiny island off the southeastern coast of Greece. He was one of ten children of a very poor family. He left Andros in 1947 at the age of 18 to accept employment as a merchant seaman and soon thereafter, in the course of that employment, arrived in the United States where he has remained. Poverty was one reason for his leaving home and another was a desire to escape from Communists who in 1946 and 1947 were conscripting young Greeks and carrying them away from their villages.

Second, the record indicates that young Aristoteles was not active publicly or privately in the political struggles and controversies of the times.He was not in any sense a conspicuous figure. Rather, he was a poor country boy trying merely to stay out of trouble.His own testimony before the Special Inquiry Officer makes this clear. ]"Q. Have you ever taken any action against the Communists in Greece which leads you to believe that you would be subject to reprisals now if you were to return to that country? A. Every time I saw the Communists I ran away from them. I went far away so I won't look at them at all.

"Q. When did this occur? A. 1946 and 1947."

In these undisputed circumstances the petitioner says that certain letters written in 1949 and 1950 support his contention that he could not return to Greece in 1955 because of fear of persecution on account of political opinion. These letters were in the nature of testimonials written in petitioner's interest by citizens of Andros. Some expressed an opinion, but wholly without mention of any supporting facts, ...

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