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LUKMAN v. HOLLAND

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


February 19, 1957

Justin LUKMAN
v.
J. W. HOLLAND, District Director, Immigration and Naturalization Service

The opinion of the court was delivered by: DUSEN

This case is before the court for review under the Administrative Procedure Act, 5 U.S.C.A. § 1009, of agency deportation action, findings, and conclusions alleged to be arbitrary, capricious, an abuse of discretion, and not in accordance with law. The record consists of a complaint, answer, the deportation record of the Immigration and Naturalization Service, and a motion for summary judgment filed by defendant under Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A. The basis of plaintiff's complaint with the agency action is its alleged failure and neglect to 'give due weight to the credible evidence of your petitioner, resulting in defendant making a determination that

'(a) 'He (petitioner) is able to return to the country of his last residence.' *fn1"

 '(b) 'He (petitioner) was not lawfully admitted to the United States as a non-immigrant.'

 '(c) 'The applicant has failed to establish that he would be subjected to physical persecution if so deported." *fn2"

 Plaintiff, a single, male, citizen of Yugoslavia, was born in 1919 in a part of that country which belonged to Italy at the time of his birth. After World War II, he lived in Italy for the last four months of 1945 and entered the Merchant Marines in January 1946. *fn3" He last entered the United States on October 21, 1951, as a seaman on a Panamanian vessel which was to remain in the ports of this country for a period not to exceed 29 days. He terminated his employment on the vessel and took a shore job within three weeks of his entry. A warrant of arrest for deportation of an alien was served upon him on May 12, 1953, at which time he said to two Service Patrol Inspectors that at the time of his entry into the United States on October 21, 1951, he 'intended to settle here and remain for life.' *fn4" After a hearing on this warrant, at which plaintiff was represented by counsel, the Special Inquiry Officer filed a report on July 30, 1953, containing, among others, a finding that plaintiff intended to remain in the United States indefinitely at the time of his entry on October 21, 1951, and an order that he be deported under Section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a)(1), from this country. An appeal from this order to the Board of Immigration Appeals was dismissed on September 18, 1953.

 On December 8, 1953, plaintiff filed an application to adjust his immigration status under Section 6 of the Refugee Relief Act of 1953, 50 U.S.C.A.Appendix, § 1971d. A hearing on this application was held on April 20, 1955, and a recommendation was filed by the Examining Officer on June 1, 1955, providing, 'It is recommended that the alien's application for adjustment of immigration status under the provisions of Section 6 of the Refugee Relief Act of 1953 be denied for the reason that he is able to return to the country of his last residence.' *fn5" Exceptions were filed to this recommendation and, on July 26, 1955, these exceptions were denied in an order of the Acting Regional Commissioner, Southeast Region, Immigration and Naturalization Service, providing that 'the alien's application for adjustment of status under the provisions of Section 6 of the Refugee Relief Act of 1953 be denied on the ground that he was not lawfully admitted to the United States as a non-immigrant.' *fn5"

 In August 1955, a motion to reopen these proceedings for adjustment of plaintiff's status under the above-mentioned Section 6 was filed and a hearing on this motion was granted on September 12, 1955. On September 20, 1955, this motion was denied for the reasons stated in the order of July 26, 1955.

 On October 11, 1955, Lukman filed an application for stay of deportation under Section 243(h), *fn6" of the Immigration and Nationality Act, upon which a hearing was held on January 13, 1956. At this hearing (as at all former hearings), petitioner was represented by counsel. On July 6, 1956, the Special Inquiry Officer filed a report recommending that the application for stay of deportation be denied, on the ground that 'the applicant has failed to establish that he would be subjected to physical persecution if so deported.' On July 23, 1956, the Acting Regional Commissioner entered an order that 'the application under Section 243(h) of the Immigration and Nationality Act to withhold deportation to Yugoslavia or Italy be denied.'

  After careful consideration of the testimony offered on July 2, 1953, April 20, 1955 (as summarized in Report of June 1, 1955), and January 13, 1956, plaintiff's contention of illegal agency action will be denied for the reasons summarized under headings of the two basic findings involved.

 I. Plaintiff's intent to remain in the United States at the time of his entry on October 21, 1951.

 There is substantial competent and probative evidence *fn7" to support the finding of the Special Inquiry Officer that plaintiff had this intent and there is no basis in the record to support the contention that this finding and the administrative action taken on the basis of it was arbitrary, capricious, an abuse of discretion, or illegal under the Administrative Procedure Act, 5 U.S.C.A. § 1009. The evidence on this point is quite similar to that before this court in Tsimounis v. Holland, D.C.E.D.Pa.1955, 132 F.Supp. 754, affirmed 3 Cir., 1956, 228 F.2d 907, and in Mascarin v. Holland, D.C., 143 F.Supp. 427, at page 429. Under such circumstances, the plaintiff is in this country illegally (see 228 F.2d at page 908 of opinion of United States Court of Appeals for the Third Circuit in the Tsimounis case, supra) and is not entitled to relief under Section 6 of the Refugee Relief Act, 50 U.S.C.A.Appendix, § 1971d, since he has not established that 'he lawfully entered the United States as a bona fide non-immigrant.' See United States ex rel. Feretic v. Shaughnessy, 2 Cir., 1955, 221 F.2d 262, 263; *fn8" Mascarin v. Holland, supra.

 II. Plaintiff's being subject to fear of persecution or physical persecution if he returned to Yugoslavia.

 A. Possible application of language concerning fear of persecution in Section 6 of the Refugee Relief Act, 50 U.S.C.A.Appendix, § 1971(d).

 The discussion under I above makes any discussion of the following jurisdictional language of the above-mentioned Section 6 unnecessary: 'he is unable to return to the country of his birth, or nationality, or last residence because of persecution or fear of persecution on account of race, religion, or political opinion.' However, it may be helpful to counsel for aliens subject to similar deportation orders in cases coming before this court in the future to suggest that, if the court is to be asked to rely on news report clippings from newspapers, counsel should make, at the least, some showing that this is the only evidence available. In this case, counsel relies on one sentence in a newspaper report, *fn9" and such a hearsay statement would not seem sufficient to sustain the burden imposed on plaintiff under the above-mentioned Section 6, even if the court had to consider the above-quoted language. *fn10" See Lavdas v. Holland, 3 Cir., 1956, 235 F.2d 955.

 B. Possible application of Section 243(h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h).

 The above-mentioned Section 243(h) authorizes the Attorney General to withhold deportation of an alien 'to any country in which in his opinion the alien would be subject to physical persecution.' The Attorney General is only required to grant the alien an opportunity to present evidence on the subject of persecution and to consider such evidence. See United States ex rel. Dolenz v. Shaughnessy, 2 Cir., 1953, 206 F.2d 392; *fn11" Namkung v. Boyd, 9 Cir., 1955, 226 F.2d 385. Cf. Jay v. Boyd, 1956, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242. *fn12" Plaintiff was given a hearing on January 13, 1956, and was represented by able counsel. No evidence of physical persecution *fn13" in Yugoslavia was placed in the record, even though there is every indication that many United States citizens travel in Yugoslavia each year. *fn14"

 In the absence of any evidence (by affidavit or otherwise) that the record of the administrative proceedings filed in this court are not complete or are inaccurate, plaintiff's objection to disposition of the matter on a motion for summary judgment is without merit. Cf. Tsimounis v. Holland, supra, and Lavdas v. Holland, supra, in both of which cases motions for summary judgment were used. *fn15"

 For the foregoing reasons, defendant's motion for summary judgment will be granted.


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