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Milutin v. Bouchard

January 23, 1962


Author: Goodrich

Before GOODRICH, STALEY and GANEY, Circuit Judges.

GOODRICH, Circuit Judge.

This is a deportation case. The plaintiff has sued the New Jersey District Director of Immigration and Naturalization, seeking a judgment declaring that an order of deportation issued against him is void and asking an injunction restraining the defendant from executing the order. Summary judgment was granted against the plaintiff, who now appeals to this Court.

The situation is a not unusual one and has been before this Court previously. Blazina v. Bouchard, 3 Cir., 286 F.2d 507 (1961); Dunat v. Hurney, No. 13,307, 3 Cir., 297 F.2d 744, 1962. The plaintiff is a citizen of Yugoslavia. He came into this country as a member of a crew of a ship. He overstayed his permitted shore leave and was subsequently apprehended and ordered deported.

At this point in the litigation it is undisputed that the plaintiff is a proper subject for deportation. His complaint is that, while he is subject to deportation, the Attorney General, through the regional commissioner, improperly denied him a stay of deportation under 8 U.S.C.A. § 1253(h). He is a Roman Catholic and he says that if deported to Yugoslavia he will be subject to physical persecution.

Argument for the plaintiff in this Court tends to stress the proposition that the plaintiff is, at this stage, entitled to the same sort of legal protection as though the problem were whether he is subject to deportation or not. The statute and regulations are clearly protective of the rights of the man who, it is claimed, is subject to being deported. The proceeding is as carefully guarded as any other piece of contentious litigation.*fn1

The procedure outlined for a determination by the Attorney General or his delegate whether the alien, though subject to deportation, shall have the order of deportation withheld, is a different matter. The statute clearly vests the authority in the Attorney General.*fn2 Courts have repeatedly said that the favorable exercise of the Attorney General's discretion is not a matter of right but of grace. "[A] grant * * * [of an application for suspension of deportation] is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace." Jay v. Boyd, 351 U.S. 345, 354, 76 S. Ct. 919, 924, 100 L. Ed. 1242 (1956).*fn3 The analogy constantly brought to bear is that of an appeal to a pardon board or a petition for probation by a prisoner convicted of a crime.*fn4

The deportable alien is not without rights. He has a right to have his application considered in accordance with the pertinent regulations promulgated by the Attorney General. Blazina v. Bouchard, supra, 286 F.2d at 511. And he has a right that his application not be denied capriciously. Ibid.; Cakmar v. Hoy, 265 F.2d 59, 61 (9 Cir. 1959). However, it is equally clear that the Government may rely upon information not presented or disclosed at the hearing, if disclosure would jeopardize the safety of the United States. This was exactly the holding in Jay v. Boyd, cited above. See also United States ex rel. Dolenz v. Shaughnessy, 206 F.2d 392 (2d Cir. 1953).

It is obvious in this case that the regional commissioner relied upon information not disclosed to the alien at the hearing.*fn5 However, there was no finding by the commissioner that disclosure would prejudice the security interests of the United States. The appellant insists that such a finding is a constitutionally necessary one if the information in the possession of the department is to be relied upon. Since his brief was written, a district court in California has so decided. Radic v. Fullilove, 198 F.Supp. 162 (N.D.Cal.1961). We do not agree. We think the present statute and regulations under it adequately assure the alien of that due process to which he is entitled. The pertinent regulation provides that the alien shall be interrogated under oath by a special inquiry officer; that he may present evidence to the officer; that he may have counsel present (as did the appellant); that the special inquiry officer shall make written findings and forward them to the regional commissioner; that the alien may submit written representations to the commissioner; and that the commissioner shall make his decision "upon consideration of all the evidence submitted by the alien and any other pertinent evidence or available information." 8 C.F.R. § 243.3(b) (2)(1958).

In this instance, the plaintiff has had a series of hearings.*fn6 The regional commissioner's final decision, dated August 26, 1960, reviews at considerable length and as thoroughly as would a court each contention made by the plaintiff tending to show that his case is a proper one for staying the order of deportation because of the danger of physical persecution. The final paragraph of the discussion by the regional commissioner states:

"This Service spent many months gathering factual information about conditions in Yugoslavia. Pending receipt of that information, Section 243(h) applications submitted by Yugoslav nationals were held in abeyance to avoid any possibility of deporting any person who might be physically persecuted. The information finally obtained was obtained from various sources, including the personal observations of officers of this Service in Yugoslavia. This information and all other available evidence has been carefully considered in this case and I must conclude that in my opinion the applicant will not be persecuted upon his return to Yugoslavia. His application will again be denied."

There is absolutely no indication in this case that the commissioner has not thoroughly considered the plaintiff's application or that he has denied it capriciously. This satisfies the requirements of due process in this situation.

Congress could, of course, have required more than the Constitution demands. As said above, the determination whether an alien is subject to deportation is guarded with considerable care. Similarly here, Congress could have precluded the use of undisclosed information absent a finding that disclosure would be harmful to the safety of the United States. But we do not think that a court should set up additional and more stringent rules here which the Congress has not prescribed. If it is necessary to make the finding that the appellant insists must be made, then it would follow that there could be a challenge to that finding as insufficient and a court examination of the exercise of a discretion which was, by the statute, granted to the Attorney General and not to the court.

It is altogether usual that courts should review the exercise of discretion by administrative officers. We do so constantly with the Labor Board, the Federal Trade Commission, and other administrative agencies almost too numerous to mention. When Congress wants that done, it says so and we go ahead and do it as best we can. But in the absence of a showing of arbitrariness or corruption we do not ...

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