In the present case plaintiff seeks a declaratory judgment that the rescission of the adjustment of his status, and hence the order of deportation, are null and void, and that he has the status of an alien lawfully admitted for permanent residence. He also asks for an injunction against his arrest and deportation. Both parties have moved for summary judgment.
It appears that there is no dispute as to the facts above stated.
Plaintiff contends that the action to rescind his adjustment of status and to withdraw the suspension of his deportation was taken too late because more than five years intervened between the 1949 Congressional resolution which granted him adjustment of status and the determination by the Attorney General that plaintiff was not eligible for adjustment of status. He points to the Immigration and Nationality Act of 1952, which provides: (8 U.S.C.A. § 1256)
'If at any time within five years after the status of a person has been adjusted * * * to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall submit to the Congress a complete and detailed statement of the facts and pertinent provisions of law in the case. * * * If during the session * * * or prior to the close of the session * * * next following the session at which a case is reported, the Congress passes a concurrent resolution withdrawing suspension of deportation, the person shall thereupon be subject to all provisions of this chapter to the same extent as if adjustment of status had not been made.'
Plaintiff's contention is that in order that proceedings and action under this section be valid a new determination of the Immigration and Naturalization Service must be made within five years of the original adjustment of status, and that since no determination was made within five years after the resolution of July 8, 1949, was passed, the suspension of deportation is invalid and of no effect.
With this contention I do not agree. While there is language in the statute which appears to limit the time within which the Attorney General (acting through the Immigration and Naturalization Service, Jay v. Boyd, 1956, 351 U.S. 345, 352, Note 8, 76 S. Ct. 919, 100 L. Ed. 1242 has power to act, there is no limitation on Congress save the self-imposed requirement that it act during the session at which a case is reported to it or during the session following. Since Congress passed its concurrent resolution of 1956 at the session immediately following the session in which the case was reported to it, the action of Congress was valid and the suspension of deportation was valid.
There is ample evidence in the administrative record to support the findings of plaintiff's Communist affiliations and membership in the Communist Party.
The Immigration and Nationality Act of 1952 provides: (8 U.S.C.A. § 1251)
'Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who -- * * * (6) is or at any time has been after entry a member of any of the following classes of aliens: * * * (C) Aliens who are members of or affiliated with (i) the Communist Party of the United States * * *.'
Thus Congress has expressed clearly its policy that Communists who are aliens should be deported. No limit is placed upon the time within which alien Communists can be deported. To say that Congress cannot rescind its action granting suspension of deportation unless the Attorney General determines within five years of an adjustment of status that a mistake was made, would be reading into the statute more than is there. The cases which plaintiff cites to support this contention that the joint resolution of April 9, 1956, was too late and therefore of no effect are not in point since they involve statutes with different words and meanings.
Plaintiff contends that he was not afforded due process of law in the course of the rescission proceedings because of the manner in which the proceedings were conducted. I disagree with this contention. He was given a full and fair hearing. All the procedural requirements of the Immigration and Nationality Act and the regulations of the Attorney General in respect thereto were followed carefully. The conclusion that plaintiff is a deportable alien is amply supported by credible evidence in the record. Without stating in detail plaintiff's numerous legal contentions with respect to lack of due process I can say that in my opinion they have already been decided against him properly by numerous decisions of other courts.
Plaintiff's motion for an injunction is denied. Plaintiff's motion for summary judgment in his favor is denied. Defendant's motion for summary judgment in his favor is granted.