The opinion of the court was delivered by: LORD
On December 27, 1956, this Court issued a temporary restraining order enjoining the defendant, John W. Holland, District Director of the Immigration and Naturalization Service, pending hearing, from proceeding toward deportation of the plaintiff.
At the hearing, argument was heard on plaintiff's Petition for Judicial Review of Administrative Order and for Permanent Restraining Order and defendant's Motion for Summary Judgment.
Petitioner is a citizen of Greece who last entered the United States as a crewman on the S. S. Demetrios on November 9, 1946. Upon his arrival he was granted a landing permit for the period his ship remained in port, not to exceed 29 days. He has remained in the United States continuously since that time but is presently subject to an Order of Deportation, with permission granted for voluntary departure.
Petitioner now seeks to set aside this administrative determination. Defendant, on his part, resists plaintiff's motion and also asks for summary judgment on the ground that there is no genuine issue as to any material fact and that, therefore, the defendant is entitled to judgment as a matter of law.
Plaintiff attacks an administrative order, issued after the original Order of Deportation, which denied suspension of the deportation. It is his position that this denial of suspension was arbitrary and capricious, in that it failed to recognize that the deportation would cause him an 'unusual hardship.'
To that extent there is an issue of fact. If, however, the denial order resulted from the exercise of administrative discretion, there is indeed no genuine issue of fact, and defendant is entitled to judgment as a matter of law.
The Act of Congress authorizes one who is subject to deportation to apply for suspension of deportation, just as the plaintiff has done, i.e. § 244(a) of the Immigration and Nationality Act of 1952, P.L. 414, Chap. 477, Title 8 U.S.C.A. § 1254(a).
More particularly, the act specifies that the Attorney General, under part (c) of said section, may suspend the deportation of a deportable alien who meets the prerequisites set out in (a)(1) thereof.
The Court of Appeals for the Third Circuit has heretofore recognized the narrow scope of judicial review in cases like the present. In Arakas v. Zimmerman, 3 Cir., 1952, 200 F.2d 322, in the course of commenting upon the ultimate decision in United States ex rel. Bauer v. Shaughnessy, D.C.S.D.N.Y.1950, 115 F.Supp. 780, the following language was quoted with approval, 200 F.2d at page 324:
'* * * the decision of the Attorney General in refusing discretionary relief to a deportable alien is not subject to judicial review at least where the ground stated for the refusal is not 'on its face insufficient'. United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 180 F.2d 489. * * *'
The Supreme Court of the United States, in the recent case of Jay v. Boyd, 1956, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242, has gone a considerable distance beyond the previous authorities. There the denial of an application for suspension, based on the use of confidential information by the Board of Immigration appeals, was sustained by a sharply divided court. Not confined to the matter of the use of undisclosed information, however, is the following statement in that case -- which unmistakably governs this Court as to the present problem, 351 U.S. at page 353, 76 S. Ct. at page 924:
'Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility. However, Congress did not provide statutory standards for determining who, among qualified applicants for suspension, should receive the ultimate relief. That determination is left to the sound discretion of the Attorney General. The statute says that, as to qualified deportable aliens, the Attorney General 'may, in his discretion' suspend deportation. It does not restrict the considerations which may be relied upon or the procedure by which the discretion should be exercised. Although such aliens have been given a right to a discretionary determination on an application for suspension, cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681, a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace. Like probation or suspension of criminal sentence, it 'comes as an act of grace', Escoe v. Zerbst, 295 U.S. 490, 492, 55 S. Ct. 818, 819, 79 L. Ed. 1566, and 'cannot be demanded as a right', Berman v. United States, 302 U.S. 211, 213, 58 S. Ct. 164, 166, 82 L. Ed. 204. And this unfettered discretion of the Attorney General with respect to suspension of deportation is analagous to the Board of Parole's powers to release federal prisoners on parole * * *.'
The foregoing rules are by no means novel. It is settled law that, in these cases, the judicial review is limited to ascertaining the denial to have been neither arbitrary nor capricious, United States ex rel. Weddeke v. Watkins, 2 Cir., 1948, 166 F.2d 369, 372, certiorari denied 333 U.S. 876, 68 S. Ct. 904, 92 L. Ed. 1152. Indeed, plaintiff doubtless concedes that rule, since his petition -- apart from jurisdictional statements and recitals of facts -- consists almost exclusively of allegations that the refusal of suspension was, in one respect or another, arbitrary and capricious.
An examination of the record indicates that, after hearing, a Special Inquiry Officer ordered suspension of deportation. His order was reversed by the acting ...