Petition of Jose Da Silva Ferreira v. Edward J. Shaughnessy, As District Director of Immigration and Naturalization For The District of New York, 241 F.2d 617, 2d Cir. (1957)
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Scribd Government DocsPetition of Jose Da Silva Ferreira v. Edward J. Shaughnessy, As District Director of Immigration and Naturalization For The District of New York, 241 F.2d 617, 2d Cir. (1957)
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Scribd Government Docs241 F.
2d 617
Petition of Jose Da Silva FERREIRA, Petitioner-Appellant,
v.
Edward J. SHAUGHNESSY, As District Director of
Immigration
and Naturalization for the District of New York,
Respondent-Appellee.
No. 95, Docket 24115.
United States Court of Appeals Second Circuit.
Argued Dec. 14, 1956.
Decided Feb. 13, 1957.
Caputi & Caputi, New York City (Sebastian P. Caputi, of counsel; Robert
R. Caputi, New York City, with him on the brief), for petitionerappellant.
Paul W. Williams, U.S. Atty. for the Southern Dist. of New York, New
York City (Roy Babitt, Sp. Asst. U.S. Atty., and Harold J. Raby, Asst.
U.S. Atty., New York City, of counsel), for respondent-appellee.
Before SWAN, MEDINA and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.
The petitioner-appellant, Jose Da Silva Ferreira, appeals from an order of the
District Court dismissing his petition for judicial review of a denial by the
Immigration and Naturalization Service of his application for suspension of
deportation.
Ferreira is a fifty-nine-year-old citizen and native of Portugal. In 1948, he was
admitted to the United States as a nonimmigrant alien seaman for shore leave
only. He was later discharged from his ship and remained illegally in this
country as he had done on two previous occasions. Deportation proceedings
were eventually instituted against him, and a hearing was conducted on
October 30, 1952. At the hearing Ferreira applied for suspension of deportation
under the Immigration Act of 1917, 39 Stat. 87 4, formerly 8 U.S.C. 155(c),
as amended. His application was received and denied; and it was ordered that
he be deported. Ferreira then appealed to the Board of Immigration Appeals on
the ground that the Hearing Officer had prejudiced the application, citing a
statement by that Officer that there was insufficient evidence in the record on
which to base a proper determination of eligibility for suspension of
deportation. The Board ordered the proceedings reopened in order to permit the
introduction of evidence on this question. At a new hearing on May 15, 1953,
the appellant again applied under the 1917 Act for suspension of deportation.
His application was denied, he unsuccessfully appealed to the Board, and was
given until March 28, 1955 to depart voluntarily. Ferreira did not avail himself
of this opportunity. Thereafter a warrant for his deportation issued.
3
On June 2, 1953, Ferreira was injured in the course of his employment as a
laborer. He was subsequently granted an award by the Workmen's
Compensation Board of the State of New York. He claims that he is entitled to
certain of the benefits of that award only as long as he remains within the
jurisdiction of the Compensation Board, i.e., within the State of New York. On
May 17, 1955, subsequent to the issuance of the warrant for his deportation,
Ferreira again moved for a reopening of proceedings to reconsider his
application for suspension of deportation under the 1917 Act, or in the
alternative, for leave to apply for such a suspension under the Immigration and
Nationality Act of 1952, 8 U.S.C.A. 1101 et seq. He claimed eligibility for
relief under section 244(a)(1) of the 1952 Act on the ground that he had been
physically present in the United States for seven years since his last entrance in
1948; and that, because of the requirements of his compensation award,
deportation would cause him exceptional and extremely unusual hardship. The
Board of Immigration Appeals denied this motion. Upon receiving a notice to
surrender for deportation, Ferreira instituted the present action in the District
Court.
The suspension of his deportation order is available to petitioner only because
Congress has enacted a statute providing for it; and petitioner concedes that we
cannot review a proper exercise of administrative discretion denying
suspension of deportation to him. See United States ex rel. Hintopoulos v.
Shaughnessy, 2 Cir., 1956, 233 F.2d 705, 707-708. 'The interest which an alien
has in continued residence in this country is protected only so far as Congress
may choose to protect it; Congress may direct that all shall go back, or that
some shall go back and some may stay; and it may distinguish between the two
by such tests as it thinks appropriate.' United States ex rel. Kaloudis v.
Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 490, per L. Hand, Ch. J . Appellant
asserts, however, that once Congress has enacted a statute providing for
suspension of deportation, the Attorney General and the Immigration
authorities must administer the statute in accordance with the underlying
legislative purpose. The petitioner claims that as to him Acts of Congress have
not been so administered. Thus he claims he has been unlawfully deprived of
the opportunity of having his application for the suspension of his deportation
entertained by the appropriate Hearing Officer and the Board of Immigration
Appeals; and that the refusal of the Immigration authorities to reopen the
proceedings in order to entertain his application for suspension under the 1952
Act constitutes a denial of due process. His claim is based upon a construction
of section 405(a) of the 1952 Act.1
5
Appellant says that section 405(a) of the 1952 Act created a 'cut-off' period for
suspension applications between June 27, 1952, the date of enactment, and
December 24, 1952, the date of taking effect, during which no valid application
could be filed, either under the new or the old law. He says the provisions of
the 1917 Act were not available because only applications pending on the date
of enactment were 'saved' by section 405(a) of the 1952 Act. He also says that
no application could be validly filed under the 1952 Act before December 24,
1952, because that statute was inoperative until that date. Therefore, between
June 27, 1952 and December 24, 1952, he claims a hiatus was created, during
which the Immigration authorities were without jurisdiction to entertain an
application for the suspension of deportation. His suggested construction would
render null and void that part of the proceedings in which his original
application was denied on October 30, 1952.
This statutory construction, if accepted, would have a disruptive impact upon
the administration of the immigration laws and would impair the harmony of
transition that Congress has sought to preserve while enacting new legislation
in this area. Cf. United States v. Menasche, 1955, 348 U.S. 528, 531-535, 75
S.Ct. 513, 99 L.Ed. 615. Moreover, we are reluctant to approve an
interpretation that would withdraw the availability of suspension of deportation,
even temporarily, inasmuch as 'The whole development of this general savings
clause, its predecessors accompanying each of the recent codifications in the
field of immigration and naturalization, manifests a well-established
congressional policy not to strip aliens of advantages gained under prior laws.'
United States v. Menasche, supra, 1955, 348 U.S. at page 535, 75 S.Ct. at page
518. We construe section 405(a) differently than petitioner would have us
construe it and find no difficulty in applying its language to the issue here.
Since the 1952 Act was not to take effect until December 24, 1952, 180 days
after its enactment, an application for suspension of deportation could not be
preferred under it until its effective date. Therefore, since there is no express
statutory language to the contrary, we find that in this respect the 1917 Act was
in force until December 24, 1952, and that the Immigration officials were
empowered to entertain an application for suspension of deportation presented
under that Act.
7
Petitioner appears to maintain that his application could not have been legally
entertained between June 27, 1952 and December 24, 1952, because he claims
that there have been decisions using the standards of the 1952 Act in
adjudicating upon petitions heard between June 27 and December 24.2 These
decisions are irrelevant to the issue here because we are here holding only that
the Special Hearing Officer on October 30, 1952, had the procedural authority
to entertain the petitioner's application for suspension on that date. If he, and
subsequently the Board of Immigration Appeals, erred in applying the proper
substantive law to decision-making, the error, if any, was in favor of the
petitioner, because the more lenient standards3 of the 1917 Act were invoked in
denying his application. Therefore the petitioner cannot complain that he was
deprived of an authorized opportunity to seek to have his deportation suspended
by discretionary administrative action. The procedure was available to him
under the provisions of the 1917 Act. Cf. Foradis v. Brownell, D.C.Cir. decided
Jan. 17, 1957, 242 F.2d 218.
Because we find that the Immigration authorities were empowered to consider
the petitioner's original application in 1952, we can discern no error in their
subsequent disposition of his case. Indeed, the petitioner has been accorded the
benefits of every procedural delay and is still within this country almost nine
years after the elapse of his permissible stay in 1948. At the time of its most
recent decision denying reconsideration of the petitioner's application, the
Board of Immigration Appeals was fully apprised of his injury and of the terms
of the compensation award. As indicated above, it is not our function to review
such a routine exercise of administration discretion.
Judgment affirmed.
Section 405(a) is a 'savings clause,' and, insofar as relevant, reads as follows:
'(a) Nothing contained in this Act, unless otherwise specifically provided
therein, shall be construed to affect the validity of any declaration of intention,
petition for naturalization, certificate of naturalization, certificate of citizenship,
warrant of arrest, order or warrant of deportation, order of exclusion, or other
document or proceeding which shall be valid at the time this Act shall take
effect; or to affect any prosecution, suit, action, or proceedings, civil or
criminal, brought, or any status, condition, right in process of acquisition, act,
thing, liability, obligation, or matter, civil or criminal, done or existing, at the
time this Act shall take effect; but as to all such prosecutions, suits, actions,
proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or
matters the statutes or parts of statutes repealed by this Act are, unless
otherwise specifically provided therein, hereby continued in force and effect. *
* * An application for suspension of deportation under section 19 of the
Immigration Act of 1917, as amended, * * * which is pending on the date of
enactment of this Act, shall be regarded as a proceeding within the meaning of
this subsection.' 8 U.S.C.A. 1101 note.
2
See, e.g., In the Matter of S-- , 5 I. & N.Dec. 467 (1953). In United States ex
rel. Hintopoulos v. Shaughnessy, 2 Cir., 1956, 233 F.2d 705, certiorari granted
1956, 1 L.Ed.2d 45, 352 U.S. 819, 77 S.Ct. 53, this court held that it was not
improper for the Board of Immigration Appeals to be influenced by the policy
manifested in the 1952 Act in the formulation of its discretion exercised in
denying an application for suspension of deportation filed between June 27,
1952 and December 24, 1952. The question of what substantive law may be
considered in passing upon the merits of applications made during that period is
not raised by the case at bar
See United States ex rel. Hintopoulos v. Shaughnessy, 2 Cir., 1956, 233 F.2d
705, 708
