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 Regional Commissioner for the reason that:
'* * * the alien, residing here for a relatively short period, has failed to establish that his deportation would result in unusual hardship to him. Furthermore, while he meets the statutory requirement as to physical presence, such residential status was acquired after the institution of deportation proceedings.'
This order was affirmed on an appeal to the Board of Immigration Appeals, which held:
'The respondent's residence in the United States was accumulated after he had failed to depart under a grant of voluntary departure on May 15, 1953. A warrant of arrest in deportation proceedings had been served on him on September 19, 1952. Although he has been under deportation proceedings for a long period of time and knew that he had been adjudged to be illegally in the United States, he has not disposed of his interest in a business in the United States -- an interest which he acquired although he knew he had no right to remain in the United States permanently. Furthermore, in the long period available to them neither respondent nor his brother who is a United States citizen and a partner with him in a business took any steps to assure the continuance of the business in a manner which would not cause undue hardship to the brother. He did not register as an alien because he did not want to be arrested by the Service and failed to complete an address report card in 1952 for fear of apprehension. He was convicted and fined the sum of $ 350 for his failure to comply with the alien registration laws.'
It is apparent that the procedures and their final result involved the exercise of administrative discretion as defined in the cases. It is doubtful whether this Court can go into the merits of that decision without exceeding the permitted scope of review.
From the record, it is apparent that the Attorney General withheld his dispensing power in the exercise of his discretion. The term 'exercise of discretion' is here used in the sense of, and within the definitions of, the controlling cases decided by the Courts of the United States heretofore cited.
The same result may be stated in another way. That is, in considering the entire record, the reasons given for the refusal to grant suspension are not insufficient. Therefore, it is not for this Court to say that the administrative action was arbitrary or capricious.
For the foregoing reasons, it is ordered:
Defendant's Motion for Summary Judgment is hereby granted.
The Temporary Restraining Order of this Court, issued December 27, 1956, enjoining defendant, John W. Holland, District Director of the Immigration and Naturalization Service, from taking any further action looking toward the deportation of Matheos Vasilios Tsatsaronis, and from effecting the deportation of Matheos Vasilios Tsatsaronis, is hereby dissolved.
Plaintiff's Petition for Judicial Review of Administrative Order and for Permanent Restraining Order is hereby denied.
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