Petition for Writ of Certiorari — Fugiani v. Barber

FILE‘ COPY oo OR re Supreme Court

e i te: bupcrer Gea

Setiin

SS =

yy ‘igae

i

wiiNG, Cleet |

‘ OF THE

“Muited States _

*>

; ow . * .

. . ° e a

@éroner. TERM, 1958

. ° of

‘ .

ae - No: 432. *

os

Basinio FUGIANT, f 2 ie :

* Petitioner, \ ”

. VS. .

Broce G. Bagper, District Director, ¢

Immigration and Naturalization |. 3°":

t

Service, San .Franeiseo istrict,

ReSpondent.

PETITION FOR A WRIT OF CERTIORARI

- - to the United States Court of Appeals

° for the Ninth Circuit.

- JosEPH S.. HERTOGS,

_ 580 Washington Street,

San. Francisco 11, California,

Attorneys for Petitioner,

¥

ad .

‘ ‘

PERNAU-WALBH PRINTING CO., SAN FRANCIBCE

“s%

|

Subject Index

Page

Opinions below ........... Cotdcaudictasdkassesacteseonaue 2

Suriadietion ..........:... sanacabecae cubes Keoues p se Ce oe

: . (Questions presented ieohsseeucuanewe ke vit * Range edeneces. 2

} Statutes involved pewknned OA ae oo neubaus 3

Statement of the case settee cent tee ees eeneeewenseteesetes 6

: Reasons ite granting certiorari pctadadienees a nw aoe ek x os . -@

} . Conelusions eh ban eeneetsthee kbs bate tdlkten ekedeanaan 13 °

. —_ ——

Table of Authorities Cited

Cases : Pages -

| ‘Carlson v. Landon, 342 U.S. 524 (1952) ........ aes La

é Ceballos v. Shaughnessy, 352 US. 599. (1957) ..:....6.... 10

Dessalernos v. Savoretti,-356 US. 269 (1958) ..... alc

heseak Immigrant Case (Yamataya v. Fisher), 1 189 US. - /~

86 (1908)... eeeeeeeeeeeesedeees’ SS DCR u

Joint Anti-Fascist Refugee Committee v. McGrath, 341 USS.

2 ener Guceaa rena kecued Rech 2

‘Kwock Jan Fat v. White, 253 U.S. 454 (1920) ............ 1

"Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ......... ou

” Low Wah Suey v. Backus, 225 U.S. 460 (1912) ........... 11.

i # - :

’ McGrath v. Kristensen, 340 U.S. 162 ...........0...00c005 8

ii 6 © Tase or AUTHORITIES Crap

Pages

Shaughnessy v. United States « ex rel. mae, 345 US. 206 .

6S ) en ne Sn nee ll

| Tang Tun v..Edsell, 223 U.S. 673° (1912) ..... ee cetons se. ,

_ United States ex ‘rel. Hintopoulos v. Shaughnessy, 353 US. 7

gers ee paweheeecancesas see eey 10, 11

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) ......... 1

Statutes 7

Administrative Proeedures Act, Section 10 ........... a

8 C.F.R., Coriduet of seniees (1951 _— ):

* . Seetion 151.2 ....... eet a ks cePeegetcceesedeass deuees ¥

Section 151.3 . eee eee eee eee ee a

Section a rere er er Try Toye eee

Immigration Act of 19¥7 (62 Stat. 1206; 8 U.S.C. 155(e)),

NS, ee see pe eee es Pete ne we ead 4,7

' Immigration Act of 1924; | :

Ciel | “ARS ere re er or eer en errr ee 6

ND a. aaa eanks'a bs eek eee 7

Public Law 414 (66°Stat. 280), Section 405(a) ............ 6

60 Stat. 243, 5 U.S.C.A. 1009 (Cum. Supp. 1950) ......:... 18

5 bad ek ee ra ctnws and saudtiserseesegasres'ss 3

28 UGC. 125K(1) ooo ceeee Siete eee eee teee etter

9

eS .

9 \ ee ’

ie

\e :

oe,

we

es 2 2 ean ree

pee sire SOLU eg ANAT ENT PERRET RS ORT FOG OE

. ‘

.

Iu the Supreme Court

OF THE

+: Rnited States.

- OcroseR TERM, 1958

No.

3 :

Petitioner, | -. ! |

vs. ee ; *

~ Basttio FuGtiant,

Bruce G. Barer, District Director,

“ Immigration and Naturalization

' Service, San Francisco District,

_ Respondent. :

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

4 | -for tite _ Circuit. |

_: sone a

\ The petitioner, Basilio Fugiani, prays that a writ

.of certiorari issue to review the judgment of the”

United States Court of Appeals for the Ninth Circuit,

affirming ‘the lower Court’s dismissal ‘of a petition

for review filed in the case of your petitioner.

é

ie SO & a og eae ue &

2

' OPINIONS BELOW.

The decision of the Special’ Inquiry Officer, Immi- |

gration and Naturalization Service (Exhibit 1; Order

dated September 25, 1953) is printed in Appendix B,

attached hereto, page xvii, The order of the Board

of Immigration Appeals (Exhibit 1, Order dated Octo-’

ber 5, 1954) is printed in Appendix C, attached héreto,

page xxiv. The order of the District Court dismissing

said action is printed at pages .12-16 in the record.

The opinion of the Court of. Appeals for the Ninth

Circuit has not yet’ been officially reported, but ‘is

printed’ in Appendix A, attached hereto, page i 1.

JURISDICTION. :

The judgment of the Court of Appeals was filed

and entered on July-11, 1958, Appendix A hereto, page

i a>: S jurisdiction of. this Court is invoked under

28°U.S.C. 1254(1). |

?

QUESTIONS PRESENTED.

1. Is an adverse determination of eligibility for

suspension of deportation by the Immigration and

Naturalization Service subject to judicial review ?

2. Can the Courts review, for abuse of discretion,

an Immigration and Naturalization Service ‘decision

denying suspension of deportation where the admin-

istrative record shows that, despite the evidence, the

. . a

relief sought is denied upon an erroneous assumption

of fact based solely upon speculation and conjecture ?

‘ STATUTES eee,

5 U.S.C. 1009 provides in part:.. 's

‘““(a) Any person suffering legal wrong because

of any agency action, or adversely affected or ag-

grieved by such. action within the meaning of any

relevant statute, shall be eptitled to judicial re-

view thereof. : as

, (e) So. far as necessary to decision and where

presented the reviewing court shall decide all

~ “pelevan uestions of law, interpret constitutional

and statt tory provisions, and determine the mean-

ing OF applicability of the terms of any agency.

aetion: . It-.shall (A) compel ‘agency action un-

lawfulty.,withheld or unreasonably delayed; and

(B) hold unlawful*and set aside agency action,

findings, and .¢ onelasions found to be (1) arbi-

trary, caprivittsS dnd abuse of discretion, or

otherwise not in accordance with law; (2) con-

trary to constitutional right, power, privilege, or

immunity; (3) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory

0 OTIS BEER ET iy gh SE aE RITE REE PES Og LT AAS EE Bee - n

. . :

—. - ;

° .

b- . @-

.

right; (4) without observance of procedure re-S.

quired by law (5) unsupported by substantial evi-*

dence in any case subject to the requirements of

sections 1006 and 1007 of this title or otherwise

reviewed on the record of an agency. hearing

provided. by statute; or (6) unwarranted by the -

facts to the extent that the facts are subject. to

trial de novo by the reviewing court. In making

4

ri!

eg Oy ee

4

the foregoing determinations the court shall re- = |

view the whole record or such portions thereof .- |’

‘as may be cited by any party, and due account

shall be taken of the rule of prejudicial error.

June 11, 1946, c. 324, Sec. 10, 60 Stat. 243. i

- Section 19(¢) ‘ofthe Siiieiibiss ‘At of 1917 (62; . F

"Stat. 1206; 8 U.S.C. 155(¢)), as amended, provides — lie

in pertinent part as tallow: {a

“In the case of any alfen (other than « one to whom |

subsection. (d) is applicable) who is deportable | |..

-under.any law of:the United States and who has

proved good moral character for the preceding °

five years, the Attorney General may (1) permit

‘such: alien to depart the United States to any ‘B

country of his choice at his own expense,‘in lieu *° |:

. of deportation; or (2) suspend deportation of —

~ such alien if he is not ineligible for naturalization

‘or'if ineligible, such ineligibility is solely by rea-

son of his race, if he finds (a) that such deporta-

tion would result in serious economic detriment

to a citizen or legally. resident alien who is the 3

spouse, parent, or minor child of such deportable

alien; or (b) that such alien has resided con-

tinuously i in the United States for.seven years or’

- more and is residing in the United States upon

‘ the effective date of this act.*’

’ ;

RRP GE EIR cad tw 8 Whey

The Code-of-Fédera] Regulations promulgated. un-

der the Immigration Act of 1917, and in effect-at.the .

time of the — in _ matter, _— ided in Part

as’ follows:

8 C.F.R. 151.2 Conduet of Heavings—(1951

Supp.). |

oo

VW

Sieenendioaianies

DAR PSE Bs RS CREM ATER

) ee Peer

EBA A rial eben Ye Daxntor gest Ty; bcs}

* ot

I acess 88202 RELEASES Dag OBE BEE IRE ORE INO

a. ens 5

_ (b) “Hearitig- Examiners; general duties. The’

hearing examiner shall conduct a fair‘and impa. ..

tial hearing. He.shall not consult with any per- ~

son or party on any fact. in issue unless upon

‘notice and opportunity for all persons concerned

_ . to participate * * *.

(c) Hearing Officer ; apecific duties. * «+ the

hearing officer _shall thereafter present all avail-

able: evidence, including the interrogation of the

alien and all witnesses presented concerning * * *

(4) factors bearing upon —— eligibility for

— relief, * * *.

8 C.F.R. 151.3 Contents of robedt evidence— -

(a) Record. |

The transcript of testimony aud exhibits, to-—

. gether with all written motions and other papers

- and requests filed. in. the proceeding, shall conti-

tute the exclusive record-for the reqummended de-|

cision of the hearing. examiner.

8 GER. 1515 Recommended decision—(a)

Preparation. by hearing officer of written recom-

ménded decision. :

** * the hearing officer shall, as Soon as. prac-

ticahle after conclusion of the hearing * * * pre-

pare in writing his recommended decision, signed

by him, which shall set forth a summary of the -

evidence adduced, a ruling upon each of the mat-

_ ters which may be submitted pursuant te Section —

151.4, and his ‘proposed findings of fact and con-

clusions of law as to deportability. If the alien

has applied for the privilege of departure in lieu

of deportation or for suspension of deportation,

the recommended decision shall: also contain. a

separate summary, ruling, proposed findings and”

™ a (7%

i

oa?

- conclusions as to th alien’s statutory eligibility BS

,under the provisions of section 19(¢) of the Im-

"migration Act of 1917, as amended, for such re-

; —tief. ae er aol ;

Sectios. 4050) of Public, Law 414 (66. Stat. 280),.

known as the Immigration and — Act of

1952, provided : g , 3

“Nothing éontained in this Act, hie: otherwise

spetifically provided therein, shall be construed

to affect the validity of ry *-* * proceeding * * *

done or existing at the time ‘this Act~shall take

effect; but as to all such * * * proceedings * * *

the statute * * * repealed by this Act are, unless

otherwise specifically provided herein, hereby con- —

tinued in force and effect, * * * An applicatiqn —

for suspension of deportation under section 19 of

@ the Immigration Act of 1917, as amended, * * *

_ which is pending on the date of the enactment of

this Act, shall be regarded as a proceeding within

the-meaniyg of this subsection,”’

® ) ‘ »

lay

rst

a

STATEMENT OF THE CASE. -

Peti itionet is a native’ and citizen of Italy who was

_* lawfully admitted to the United States on February

' 22, 1950 as a temporary visitor under Section ,3(2)

of the Immigration Act of 1924. On March 28, 1950

he married a native-born citizen of the United States. ,

Subsequently, he voluntarily: appeared at the Immi-

- gration and Naturalization Service, San Francisco,

California, and filed an application for discregi Vy

, is at |

Eo

So Ang iat ae nes ae SR ES Des eNis e ake

° 3 -

-

AIS

7

abel, “0

relief under Section 19(e) of the Inimigration Act of

1917, ag amended: A warrant of arrest issued on June’

25, 1951 charging that, under Sections 14 and 15 of.

ithe Immigration Act of 1924, petitioner. was deporta-

ble on the grounds that he had remained in the United

States for a longer period of time than permitted by

law or regulations promulgated ‘thereunder. On Sep- .

~ tember 23, 1952, he was accorded a hearing. ‘The

- Hearing Officer: denied petitioner’s application for

suspension of deportatiop,put granted him the privi-

lege of voluntary departure from>the United States.

The following day, September 24, 1952, the Hearing

, Officer reopened the proceeding and granted petitioner

the additional’ priv ilege of preexamination. In an or-

der dated J uly 28, 1953 the prior order of September

yo 24, 1952 was withdrawn and the proceedings reopened.

Said order is printed an attached hereto as Appendix

D, page xxvii, Ina decigion dated September 25, 1953,

the Special Inquiry Officer concluded “‘that the (peti-

‘tioner) is wholly ineligible for any. type ¢ of discretion-

ary relief”, (Appendix B, page xvii.) In a decision

dated Octobér'5, 1954, the Board of Immigration Ap-

- peals reached the conclusion that the decision of the

Special Inquiry Officer should not be disturbed. (Ap-

pe — C; page xxiv.) The District Court concluded |

‘under all of the circumstances disclosed in the record,

’ judicial intervention is not warranted”’. “(R.12.). By

a split decision, ‘the Court f. Appeals forthe Ninth ©

Circuit affirmed—Cireuit Judges Bone and Fee con-

yj *

*

~

curring in the result in separate decisions, with .

Cireuit Judge Pope es

: ?

2

| REASONS FOR GRANTING CERTIORARI.’ =

This writ of certiorari is sought because the issues | i

presented herein raise important questions of federal 4

|

2 , ; .

. = ‘ 8 > ‘ e :

.pleatling and practice ‘as well as important questions

pertaining to the administration of the immigration

and nationality laws of the United States. In addi- .

tion, the decision. below is in conflict with decisions

of this Court as handed down in other cases. * ,

1. The decision below is in direct conflict with the *

decision of this Court in the case of McGrat RE} K ris-

tensen, 340 U.S. 162, 169-171. |

As was stated ad J udge Pope i in hiocdigeenting opin-

ion: ”

| LT ndieed, the iit innttan was ‘teabbana for the

sole purpose of passing upon appellant’s eligibil-

ity. The order read: ‘It is further. ordered that ‘

the proceedings be reopened in order to determine * °

the respondent’ s eligibility-for discretionary relicf

in view of new and important evidence now con-

tained in@hefile.”. (Emphasis mine) The Board

of Immigratign Appeals so read the deeision when

they affirmed it. Reference to ‘their decision i

shows that they treated the Special Officer's opin- ;

ion as the reabdecision.’: —

0 OM AOR ge te mg

. Thus it is apparent that this case precisely par- —

allels the Kristensen ¢ase, supra.. There’the ques-

tion decided by the Attorney General was that the

9

'Interestingly,.the majority opinion contains statements con- °

sistent with my view what was decided. Says the majority. ‘

(10th paragraph of the opinion): “. . . the only issues defermined :

. by the Special Inquiry Officer during the administrative hear

te |

¥

¢

‘in this case were the issues of — s deportability and

bility for: discretionary relief. «

45 - 3 °

o-

g '

alien was ineligible for discretionary relief be-

. cause he was not elgble for naturalization.? The

_ Court said: = = «

“Where an official’s authority to act depends

upon the status of the person affected, in this

ease eligibility for citizenship, that statis, when

in dispute, may be determined by a declaratory

judgment proceeding after the exhaustion of

administrative remedies. Under See. 19(¢) of

’ the Immigration Act the exercise of the ‘Attor-

ney General’s discretion ‘in suspending deporta-

tion is prohibited in the case of aliens ineligible

for citizenship. This is an actual controversy

between the alien and immigration officials over

the legal right of the alien to be considered

for suspension. As such a controversy over

federal laws, it is within the jurisdiction of

federal courts, 28 U.S.C. 133, and the terms of

® "the Declaratory Judgment Act, 28 U.S.C. 2208.’

-If we Siibstitute in fhe above quotation the words

‘eligibility for discretionary relief’ for the words

‘eligibility for citizenship’, we have this case pre-

cisely, Such a determination of status is review-

able for the reagons stated in Brownell v. Tom

We Shung, 352 U.S. 180, 185: ‘Exemptions from

the . . . Administrative Procedure Act are not °

lightly to be pre@mmed,’ Marcello v. Bonds, 349

U.S. 302, 310 (1955), and unless mate by clear

ae

Review | was granted by this Court to determine whether the

Attorney General was justified in refysing to suspend deportation

_ of an alien under See. 19(¢) as amended, 62 Stat.~1206, of the

Immigration Act. of 1917, 39 Stat. 874, 889, 8 U.S.C. Sees. 101,

155(¢), on the Fm ground that the alien was ineligible for —

naturalizhtion.” U.S. p. 163.

° -

o

%&

10 va

language or supersedure the expanded mode of °

_ review granted by that Act cannot be modified.’’

* Cf.» Ceballos v. Shaughnessy, 352 “U.S. 599

(1957) ;

Dessalernos ¥v. ‘Savoretti, 356°U.S, 269 (1958).

The Immigration and Naturalization Service ap-

plied erroneous legal standards in deciding that this.

petitioner was ineligible for any discretionary relief.

Where the eligibility of an alien for suspension of

deportation depends upon the status of that alien,

and where the question concerning his status is in dis-

pute, the Courts may intervene for the purpose. of |

determinining. whether such individual meets the

statutory standards provided by the appropriate

The decision of the majority of the Court of Ap-

' peals, holding that an administrative finding’ of in-

eligibility for a statutory relief is an administrative

- discretion ngt subject to judteial review, presents an

important question which should -be . one by

this Court.

2. The decision. of the Court of Appeals, holding

that the administrative authorities have an absolute,

unbridled discretion, not subject to judfial review,

-. involves an important question of federal law which

appears to be in conflict with other decisions of this

Court.

’ Citing United States ex rel. pevienrr v: Shaugh-

nessy, 353 U.S. 72 (1957) ‘Judge Bone in his opinion

stated : :

‘Whether a deportable aliefi is to be permitted -.

voluatarily to depart the United States, or

G 3

—

i iach ESRI TTT ERIN BOM ET IS RFE NS SANE NATE Vt

“Fr - a Ag.

ill

whether deportation is to be suspended, is a mat-

_~ ter within the discretion of the Attorney General.

*** This Court may not interfere with exercise:

of that discretion.”’

| Howéver, this Court in the Hintopoulos case, supra,

at page 77, stated: aioe

‘*‘Nor can we say’ ‘that it was abuse of discretion

to withhold relief in this ease. ait as

It would appear from this statement, that in certain .

instances the Courts are not without power to review

exercise of an administrative discretion where there

has been-an abuse.

An alien within the United States may ‘be sxpelied

‘ only after proceedings conforming to the traditional

standards of fairness encompassed in due process of

law. te ee = 7

~ Japanese Immigrant Case (Yamataya v. .

Fisher), 189 U.S. 86, 100, 101 (1903) ;

Wong Yang Sung v. McGrath, 339 US. 33, 49,

50 (1950); ‘

_ Kwong Hai Chew v. Colding, 344 U. S. 590, 598

(1953) ;

Shaughnessy v. United States ex Pr Mesci, 345

U.S. 206, 212 (1953).

‘ Judicial review is appropriate where administrative

officials are guilty of abuse of discretion.

' Low Wah Suey v. Backus, 225 U.S. 460, 468

(1912) ; ,

e. Kwock Jan Fat v. White, 253 U.S. 454, 464

~ (1920) ;

Carlson v. Landon, 342 U. S. 524, 537 enact

an

>*

> 38

Even though the granting of o discretionary relief, -

such as suspension of deportation, is not a matter of

right but is a matter of: grace, the administrative of-

ficidls can not resort to speculation and conjecture

without considering the evidence when exercising this

delegated executive power. Any exercise of ¢lisere-

tion must be consistent ‘‘with the fundamentalaprin-

ciples of justice embraced within the conception.of due

process of law’’.

Tang Tun v. Edsell, 223 U. S. 673 (1912);

Joint Anti-Fascist Refugee Committee v. Me:

~ —G@rath, 341 U.S. 123 (1950); *

— Carlson v. Landon, 342 U.S, 524 (1952).

Int the dissenting opinion, Judge Pope stated:

‘‘Out of the blue sky, and, it seems to me, with-—

out basis, the hearing officer pulled a finding that

his stury was incredible.’”’ (Appendix A, page i.)

ee

Judge Bone also made a comment of a similar na-

ture by way of footnote ne A, page i), whep

he stated:

“The Special hohe Officer. found appellant's

assertions of fact as to the alleged Berl’~ mar-—

‘riage ‘incredible’ despite the fact that during

the hearing appellant communicated by means of

an interpreter i so that the usual means of evaluat-

ing credibility were not available to the Special

Inquiry Officer, despite the fact (as the Italian

Court observed) that life in Berlin in the summer

of 1945 was“grim to an extreme, despite the fact | —

that the Italian Court found the facts as told —

by appellant credible, and despite the fact that -

there was no p ovanenee introduced oat conflicted

————— a a Be i ke er. al TE a See co

, ° ‘

; ; F

13

with appellant’s statement of the events in Ber-

lin.’”:

Wiscretion, as a minimum, requires exercise of the.

authority in a reasonable manner. And where the ad-

ministrative decision is without reasonable foundation,

in order to prevent miscarriage of justice, the Courts

should eXercise their inherent power and protect the

rights of individuals as expressed in the due process

of law --ause of the Constitution of the United States.

“> Section 10 of the Administrative Procedures Act

imposed on the Court a duty to hold unlawful and set

aside agency actions, findings and conclusions found

. to \« ynstipported by substantial evidence. . 60 Stat.

243, 5 U.S.C.A, 1009 (Cum. Supp. 1950),

To prevent abuse of extraordinary ‘power granted

to the Immigration and Naturalization Servite, the

legality of such administrative determinations must °

he subject to judicial review in appropriate cases.

_. The decision of the Court below, even after comment-

ing that the decision is contrary to the evidence, con-

“*eludes that the Courts may not, under any set of facts,

* review an exefcise of administrative discretion by the

Immigration and Naturalization ~waleeet

‘It is respectfully submitted ‘that the administrative

determination, that this petitioner was ineligible for

the discretionary relief sought is subject to judicial

_Teview. Likewise, we do not believe that. the immigra-

ae

tion and tinal laws of the ‘United: ‘States con- |

template or authorize an an administrative decision, in-

| cluding exereise of discretion, based on nothing more

‘than inference, speculation and conjecture. Due

. process of law requires that such determinations be

based upon reasonable, substantial and probative. evi-_ -

dence. It is the inescapable duty of the Courts, as

frée ‘and responsible moral agents of this country, to

_use everything within their power to force administra- _

tive compliance with the mandates of the Constitution

-of the United States.

_ For the reasons set forth, it is respectfully sub-

mitted that this petition for writ of certiorari should

“be granted. | 3

Dated, San Francisco, California, -

October 6, 1958...

- Josern S: HeRTo«s,

Attorney for Petitioner.

t (Appendices A, B, C and D Follow.)

Appendix A

United States Court of Appeals

for the Ninth Circuit

Bastio Fuciani,° -)

Appellant,

vB. ‘

‘oes 15,162

. o ; Vig . : , a .

Bavce G. Barner, District Director, Im- ¢ 51041 1958

migration and: Naturalization Serv-.

ice, San Francisco, California,

Apartee. “| |

.

Appeal from the United States District Court for the

Northern District of California

Southern Division

\

Before: BONE, POPE and FEE, Circuit Judges

BONE, Circuit Judge. —

Fugiani appeals from an order-of the District Court

dismissing his petition for review. Appellant is a ha-

tive and citizen of Italy. He was admitted at New

3 - York to the United States as a non-immigrant (visi-.

_ tor) under ‘Section 3(2) of the Immigration Act of

* 1924. On March 28, 1950, appellant married a citizen

of the United States. On June 25; 1951, a warrant of

arrest was issued charging that appellant was in the

United States in violation of law in that after his ad-

- Mnission as a visitor he had remained in the United

ii 7 si 7h

‘States fora longer time than permitted under the law’ |

or regulations .made thereunder.

A hearing was conducted on September 23, 1952,

before a Special Inquiry Officer attached to the San

Francisco district office of the Immigration and Nat-

uralization Service. Appellant applied for suspension |

of deportation and, as an alternative ‘form of relief,

‘voluntary departure from the United States. At the.

conclusion of the hearing the Special Inquiry Officer

found appellant eligible for voluntary departure from

the United States.’ .

On September 24, 1952, the hearing was tapened :

and the Special Inquiry Officer entered an order

granting the appellant the additional privilege of pre-.

examination.’ No appeal was taken from this order

1Section 14 of the Immigration Act of 1924, 8 U.S.C.A. §214:

“Any alien who at any time after entering the United States is

found * * * to have remained therein for a longer time than per-.

mitted under this chapter or regulations made thereunder, shall be

taken into custody and: deported in the same manner as provided

for in sections 155 and 156 of this title * * *.”

2Section 19(c) of the Immigration Act of 1917, 8 U.S.C.A._

§185(c) - “in the case of any alien * * * who is deportable under

character for the preceding five rs, the Attorney-General may

(1) permit such alien to depart dhe United States to any country

of his choice at his own expense, in lieu of deportation, or (2

suspend deportation -of such alien if not racially inadmissible’ or

ineligible. to naturalization in the United States if he finds that

such deportation would result in serious economic detriment to a

any law of the United States poke has proved good moral

citizen or legally resident alien who is the spouse, parent or minor —

child of such deportable alien. * * *”

88 C.F.R. §1 provides for preexanination of an alien “eee

for the pu .of determining in advance his admissibility into

the United States for permanent residence when in possession of

an unexpired immigration visa: * * *” 8 C.F.R.. §142.1.

' 8 C.F.R. 8142.2.- “Preexamination shall not be ‘authorized un-

less it appears to the officer granting such authorization that the

and a formal order granting voluntary departure and

pre-examination was filed on September 28, 1952.

A visa petition was submitted for appellant by his

wife; it was approved by the San Francisco Distriet

Office. By letter dated November 25, 1952, the United

States Consulate General at Vancouver, British Co-

‘lumbia, notified the appellant that no further action

‘would .be taken in his case until he submitted doeu-

mentary evidence of the termination of a prior mar-

riage in Germany to a German girl.

Appellant communicated .with his sister residing in

his native city of Fabriano, Province of Ancona, Italy.

She informed. appellant that by theofficial records of

the Township of Fabriano appellant was married in

Berlin, Germany, in 1945, and a record of the mar-

riage was forwarded to Fabriano, Italy, on March 20, .

1950, by the Foreign Ministry at Rome. From the

briefs submitted it ‘would seem that in Italy one’s ©

birth record is annotated or amended to show. mar-

riage, and that his birth record did not show any: mar-

riage at the time he entered the United States on Feb-'

ruary 22° 1950. Appellant commenced ‘Proceedings in

Italy to annul this claimed apices sal

_alien is: (a) Admissible to Canada; (b) Of good moral character ;

* * * (d) Able to obtain the prompt issuance of an immigration

visa in ease it is determined that he is admissible to the United

States for permanent residence.”

8 C.F.R. §142.7. “© © © preexamination will not be actgrded | byt

* © * unless or until he * * * has received from the consular

officer written assurance. * * * that a visa will be promptly avail-

able * * ©,”

‘Acting on instructions ‘ten appellant, an attorney in Fabri-

ano, Itaiy, began an annulment action. The‘matter came to trial.

in an appropriate court in Ancona, June 27, 1953.. The person

%

et eR

ee e

SP ee ee

iv ,

acai *,

On J “ 29, 1953, a Spécial Inquiry Officer of the

Immigration and Naturalization Serviée.in San Fran-

cisco entered an order. that the. deportation proceéd-

ings of appellant be reopened and that the prior |

order granting voluntary departure with the addi-

tional privilege of preexamination: be withdrawn.

Hearing was held, at which appellant presehted in

. evidence a decree of annulment entered in the Civil

and Penal Tribunal of Ancona, Italy, on July 10,

1953, showing the termination of his marriage to one

Elly Martlia Porg, contractéd on September 4, 1945,

an Berlin. Appellant stated the: facts to be that he was *

-given shelter by the family of Elly Porg after his

vescape from a German prisoner of war camp, that he

did not speak German, that he did not intend to con-

tract marriage, and believed he was signing documents -

Which would permit the Porg family to. obtain food

and clothing rations, The Special Inquiry Officer’

* found this to be “‘ineredible,” and*decided that the

. appellant was ineligible for discretionary relief.’ ‘The

. aes

identified as Elly Martha Porg appeared and. testified about the

alleged marriage: A decree annulling the marriage was entered on

June 27, 1953. Recitals contained in the decree show that the

testimony of Elly Porg was to the effect that appellant was tricked

and deceived into marriage on the pret that he was signing

papers’ to obtain food. At the time appellant. had but recently

_sestaped from a German prisoner of war camp, did not speak

--@~ . German, and was in hiding in Berlin, awaiting the opportunity

to cross from the Soviet sector in Berlin into the American sector

so that he might return to Italy. ' ;

5The Special Inquiry Officer found appellant’s assertions of fact

as to the alleged Berlin marriage “incredible” despite the fact that

during the hearing appellant communicated by means of an inter-

preter so that the ‘usual means of evaluating credibility were not

available to the Special Inquiry Officer, despite the fact (as the

. Italian Court observed) that life in Berlin in the summer of 1945

- was grim to an extreme, despite the fact that the Italian Court

,

“~

f

; ; 2 ; . g

jo.

.. 2

peal from this order of deportation.

>

" appellant was ordered deported. On Ootéber 5, 1954,

the Board of Immigration Appeals dismissed an ap-

=

‘Appellant later petitioned the United States, Dis- ~

trict Court for a review of the’ administrative’ pro-

ceeding, under 5 U.S.C.A. §1009, Section 10 of the

ae Administrative Procedure Act. The petition alleged

:' 2

- that appellant js and has been a person of good anoral

character, that he has resided in the United States

ewith his United States citizen spouse continuously

‘ . since their marriage on March 28, 1950, that appellant

did not willfully conceal any prior existing marriage,

tliat he had no knowledge of the alleged prior mar-

riage, that the expressed opinions of the Special In- —

quiry Officer are contrary<to the findings and conclu: |

sious ef the Italian Court which granted a decree of

annuknent. on the ground of fraud and concealment,

that the decision is arbitrary, capricious and contrary

to the evidence of record, that the decision is an abuse -

of discretion, and eontrary to the record, and that

oe & *

are permitted to stand, the plaintiff [appellant] will

be forevi er barred from readmission to the United

States; ** *.”’ The District Judge dismissed the peti-

tion on the a) that ‘‘* adie Under all ¢ + circum-

stances disclosed in the. record, judicial ‘intervention

is not warranted. ”” The instant appeal followed.

. Appellant presents three specifications of error *

* which deal with (1) sufficiency of the evidence; (2)

if the charges of the Special Inquiry Officer

od

found the facts as told by appellant credible, and despite the fact :

that there was no evidence introduced that conflicted with appel-

lant’s statement of the events in Berlin,

a

.

Mie »

Qo ° 7

P Os

fairness. of the administrative besten: and (3) re-

fusal of the District Couf to intervene. —

. "We find ‘no lack of fairness in the administrative

" proceedings in this cases We believe that the other

- alleged errors, if they are errors, are not errors that

this Court can remedy. By -appellant’s own pleading

he remained in the United States for a period of time

in excess of that allowed ‘by his visa, and for that

reason he is deportable. Immigration Act of 1924, §14,

8 U.S.C.A. §214: Whether a deportable alien is to be

permitted voluntarily to depart the United States, or

whether deportation is to be suspended, is a matter .

within the discretion of the Attorney General. Immi-

gration Act of 1917, §19(¢), 8 U.S.C.A. §155(c). This .

. Court may not interfere with exercise uf that disere-

tion. United States ex rel. Von Kleczkowski et al. v.

Watkins, S.D. N.Y., 1947, 71 F. Supp. 429, 435;

United States ex rel. Hintopoulos v. Shaughnessy, 353

U.S. 72, 1957.

Despite thé comments of the Special Inquiry Officer -

in his ‘‘diseussion’’* of the case, we believe that the _

only issues before and the only issues determined by

the Special Inquiry Officer during the administrative

hearings in this case were the issues of appellant’ s

®The “discussion” by the Special Inquiry, Officer includes these

comments: “The record in this case clearty” indicates that the re-«

spondent: attempted to obtain an immigration visa™for admission

to this, country through fraud and that he carefully concealed

from the authorities that he had: been previously marrieg 2 6-9.

I believe that this respondent was fully aware of his prior mar-

riage and deliberately withheld such information from the author-

ities of this country evén to the extent of committing perjury in

his application for-discretionary relief. This respondent has shown

an utter disregard for the Immigration Laws of this — seu”

i) ae vii

g

deportability and eligibility for discretionary relief

in the nature of voluntary departure “from the United

States. We are supported in‘the view that the Special

Inquiry, Officer was fidt determining ‘the status of ap-

pellant to’ reenter the United States by the findings

and conclusions made at the close of the. reopened

hearing. From these findings and conclusions, it is

¢ clear that the Special Inquiry Officer found appellant.

deportable by reason of over-staying the time limit in

- his visa, and made no determination as to hif eligi-

bility for reentry into the United States. Eligibility

for reenfty will be determined if and when appellant

seeks reentry. a ° ‘

Appellant devotes a large part of his brief in this

appeal to the argument that the judicial determina-

' tion of the Italian Court thatthe appellant was de-

‘ceived and had no knowledge of such ngarriage should

be binding upon the administrative tribunals in this

ease. Cogent as this argument may be in the appro-

priate factual situation, we believe it is not material

here. The issue before the Immigration authorities

was not deception into and knowledge of the marriage

but whether to permit an admittedly deportable alien

- to depart voluntarily from the United States, a mat-

_ ter wholly within the discretion of the Attorney Gen-

eral, Immigration Act of 1917, $19(c), 8 U.S.C.A.

§155(e). ‘ |

The judgment of the District Court is affirmed.

- $f ;

¥

m eee * :

JAMES ALGER FEE, Circuit Judge; concurring:

There is too much ado about this foreigner who de-

liberately injected himself into this country in con-

scious violation of our law, married within a month,

apparently to fend off deportation, and has main-

tained himself here in defiance of our government for,

almost five years.

Admittedly, he has been subject to lawful deporta-

“tion during all this time, and is now. He’has been con-

sistently accorded due process of law. At his deporta-

tion hearing, the basis was found unquestioned: for

. immediate action. He was granted suspension for a

‘limited period in order to permit him to depart volun-

_ tarily' and to have. pre-examination for readmission.”

He has not-departed voluntarily, and the time so lim-

ited,.with all extensions, expired on July 20,. 1953. |

‘The reason Fugiani has not voluntarily, departed in —

order to obtain permanent residence here is that, if

he ‘should leave, he could not get back. Pre-examina-

tion has not been had because a’ condition precedent

to pre-examination is that he “‘has received from the

consular officer written assurance * * * that a visa will

be promptly available.’ It is perfectly clear that the

United States Consul at Vancouver, British Columbia,

Canada, will not now issue such a visa promptly or

at all.

18 CFR. § 150.3 (1951 Supp.).

28 C.F.R. § 150.3(e) (1951 Supp.).

38 CFR. § 142.7(a) (1951 Supp.).

ix

The position of Fugiani is that the authorities of

this country must accept his story and the decree of

an Italian court, which he obtained ex parte, and ad-

mit him. But this is only a theory in which there are

none of the constitutional points suggested.

. The authorities acted strictly according to regula-

tions in reopening the proceedings to determine the

proper exercise of discretionary relief.‘

‘It was of no consequence what issues or questions

‘the Special Inquiry Officer=considered at the hear-

‘ing. That. official had .the responsibility, in deciding

-examination would again |

be gi ranted, | to Setpiinine whether or not the applicant

-. was of good moral character®. and whether the. latter

could receive assurarice from the* cohsulate i in Canada

that an immigration visa would issue. promptly. when

the alien presented himself there. He determined .

these questions against Fugiani.

This. alier. is here in violation of our law. He was

atcorded the privilege of voluntary departure and pre-

examination, which was discretionary. The limitation

on this order allowing voluntary departure has long

since expired. The officials reopened the hearing and

denied further discretionary relief and ordered him ~

deported in accordance with regulation.

If this was not lawful procedure, an impasse has

been created. Fugiani, however undesirable, will be. a

‘The effective regulations pursuant to whieh the hearing was

reapened were 8 C.F.R. §§ 151.6, 194.7, 151. 5(e) (1951 Supp.) and

also 8 C.F.R-> § 150.3(a) (1951 Supp. ).

-* 88° C.FLR. § 142.2(b) (1949 ed.). :

68 C.F.R. § 142.2(d) (1949 ed.). . E

permanent resident of the United States. This sia

does not seem possible. A :

In passing upon the issue of good moral | deanes ter,

pursuant to his jurisdiction under the statute and reg-

ulation, the Special Hearing Officer had a right to

consider the fact that Fugiani had once gone through —

a form of marriage to get bread and that he failed tu -

_reveal that fact to the immigration officers. It was per-

tinent to consider that Fugiani married in haste while

unlawfully in this ceuntry. This is a well known

device. Both these circumstances could properly have

been’ considered in determining whether to allow the

pre-examination on a discretionary basis.

In the event that the Hearing Officer incidentally

considered matters which might affect the right of the

alien to re-enter, the answer is he necessa ssarily enter-

tained the two vital — under the statute and

regulations.

POPE, Circuit Judge, dissenting.

I do not see how this decision can stand in the face

eof McGrath v. Kristensen, 340 U.S. 162, 169-171. 1

think the majority yopinion fails to note just what it

was that the Special Inquiry Officer and the Board «f

. Immigration Appeals détermined. The Special Inquiry

Officer never got around to consider whether the dis-

eretionary power would or would not be exercised.

Rather, his decision was that appellant was ineligibl«

for suspension or foluntary departure, as a person

“not of good moral character. The Special. Inquiry Ofti-

ST TS Saaeweaey 2 See ~~

a _— “Seen... LL &@@&@x@“uoc<6uVw“YEE

.

bo

.

cer’s formal findings, labeled’.as such, refer to nothing

but appellant’s deportability. They do not even men-

‘tion discretionary ‘relief: If those findings were the

duly ones made here the decision would have to be set

aside for failure % pass upon the question before the

Special Inquiry cer, namely, whether suspensiori

or voluntary departure should be granted. To make

the officer’s decision meaningful, it must be read as a

whole, including the opinion, where he said: ‘‘In view

of all the faets and circumstances, I can only conclude

- that the respondent is wholly ineligible for any type

of discretionary relief and should be deported and

Shall.so order.”’ (Emphasis mine)

Indeed, the whole matter was reopened-fer-the sole .

purpose. of passing upon appellant’s eligibility. The

order bead: ‘‘It is futher ordered that the proceed-

ings be reopened in order te determine the respond-

ent’s eliyibility for discretionary relief in *®iew of new

und important -evidence now contained in. the file.”’

(Emphasis mine) The Board of Immigration Appeals

so read the decision when they affirmed it. Reference .

to their decision shows that they treated the Special

_ Offic ers opinion as the. real decision.'

Thus it is apparent that this case precisely parallels

the Kristénsen case, supra. There the question decided

by the Attorney General was that’ the alien was in-

cligihle for discretionary: relief because he was not

‘Interestingly, the majority opinion .contains statements con-

sistent with my view of what was decided. Says the majority,

(10th paragraph of the opinion) : . the only issues determined

by the Special Inquiry officer during the administrative hearings

* in this ease were the issues of* — 8 ne and cligi-

bility for discretionary relief. .

% ?

eligible for naturalization.? ‘The Court said: ‘‘ Where

an official’s authority to act depends upon the status

of the person affected, in this case eligibility for citi-

zenship, that status, when in dispute, may be deter-

mined by a declaratory judgment proceeding after the

exhaustion ‘of administrative remedies. Under Sec.

19 (c) of the Immigration Act the exercise of the .

. Attorney,General’s appropriate discretion in suspend-

. ing deportation is prohibited in the case of aliens in-

eligible for citizenship. The alien is determined to have

a proscribed status by this administrative, ruling of

‘ineligibility. Since the administrative determination is

final, the alien can remove the bar to consideration of

suspension only by a judicial determination of his

eligibility for citizenship. This is an actual contro-

versy hetween tke alien and immigration officialssover

he legal right of the alien to be.considered for sus-

. pension. As such a controversy over. federal laws, it

is within the jurisdiction of federal courts, 28 U.S.C.

_ 1331, and. the terms of the sonnet ited oe Act,

28 U.S.C. 2201.”

If we substitute in the above: Auotation he words.

“eligibility for discretionary relief’: for the words

“eligibility for citizenship’, we/have this case pre-

cisely. Such a determination of status is reviewable for

the reasons stated in Brownell v. Tom We,Shung, 352

@

. ! :

_ “Review was granted by this Court to determine whether the

Attorney Genera! was justified in refusing to suspénd depoptation

of aw alien under Sec. 19(¢) as amended, 62 Stat. 1206, of the

‘Immigration Act of 1917, 39 Stat. 874, 889; 8 U.S.C. Sees. 101.

155(¢), on the sole ground that the alien was ineligible -for nat-

uralization.” 340 U. S. p. 163.

v —

SE re a ey ee eet erry ed ea erica se. tition

s

Le gh AA 2a a oe ESF

Pict)

vane

ii ;

. U.S. 180, 185: 4 ‘Exemptions from the .. Adminis. |

trative Procedure Act are not lightly to be aia Je.

Marcello v: Bonds, 349 U.S. 302, 310 (1955), and un-

less made by clear language or supersedure the ex-

panded mode of review — by that Act cannot be

modified.’’

It is sickle from the record ii that there is

plerity of room for different fact conclusions upon a’

review of the officer’s decision. The explanation which

the appellant gave for his ignorance of the marriage

record was entirely understandable and it is confirmed

by everything else in the record including the -decree

of the Italian court which in turn was based upon a -

~ confirmation of his story by the woman, Elly Porg,

who appeared before that court to corroborate the ap-

pellant’s account that the signature on the document |

which-turned out to be a marriage contract and which

was written in German which he did not understand, |

had been affixed by him with the understanding that

it was an application for additional food rations. Out

of the. blue sky, and, it: seems to me, without basis, the

hearing officer pulled a finding that ” story was in-

credible.

Personally, I would doubt that a trial judge on a

review of this order would find the appellant’s' story

incredible. More fantasti¢.experiences of escaping sol-

diers during the late~war have been checked and veri-

fied. At any rate, the purpose of the provision for

Yeview is to subject fact determinations as important

as this one review by a judge. That is what the

Administrative Procedure Act is for. -/

xiv

I think the case should be remanded to the court

below for the purpose of giving appellant the review’

of this finding to which he is entitled. If the trial

- eourt then finds appellant not ineligible for voluntary

‘departure, the determination of ineligibility must be

set aside. As in the case of United States ex rel. Zach-

. arias v. Shaughnessy, 2 cirf, 221 F. 2d 578, since: ap-

pellant had initiated these proceedings, even before the

1952 Act, he would then be entitled to a new hearing

for the exercise of discretion by the Board of Immi-

gration Appeals. —

I agree with what Judge Byrne said in Acosta v._

Landon, 125 F. Supp. 434, 441: ‘*In, other words, ac-—

cording to the Board, whenever an alien is found to

be deportable, suspension of deportation should not

be granted if at his hearing the alien gave testimony

contrary to what the administrative officials found to

be true. The reasoning apparently is that a witness

whose testimony is not accepted by the trier of fact

is a perjurer and not a person of good moral charac-

_ ter. Such reasoning is not only legally invalid, but it

- is contrary to the basic sense of fairness upon which

our legal system is founded. —

‘The courts may not suspend the deportation of a

deportable alien as that discretionary power is vested

solely in the Attorney General, 8 U.S.C.A. 1254. How-

ever, when the Attorney General is required as a con-

dition precedent to an order of deportation to exer-

cise his discretion with respect to the suspension of —

deportation, the validity of the order must rest upon

?|

een wee so eee

lh aN ED NIN AL RR gibi Hn! Ce air is

RP TRE TIE DOT cts TOR Ve Senin, Sirs WET CATO am atee eet Le REET MO SaaS EE

the neeided exercise of discretion. If it is lacking, the :

order i is ineffective.’ °

That case is interesting for another 1 reason. It is an

illustration of the mafhner in which district courts,

reviewing sorders of administrative bodies, properly

reject the latters’ findings when the court is satisfied

that they are “unsupported by substantial evidence”’

_within the meaning of Sec. 10 (e) of the Administra-

tive Procedure Act (Title 5 Sec. 1009 (e)).

Another case where a district judge substituted his

own judgment on the facts was Bonica v. Olesen, 126

F. Supp. 398. Cf. Securities and Exchange Commis-

sion v. Cogan, 9 cir., 201 F. 2d 78, 86:‘‘[W]e think it

manifest that the district judge knew more about the -

subject in hand than did the Commission.’’ See also,

“

s

, 4 Ss

3Said Judge Byrne: “It is difficult to understand how the in-

quiry officer could find that the deportation of this alien . . .

/would not result in exceptional and extramely unusual] hardship.”

‘(In Mar Cong v. Brownell, 9-cir., 209 F. 2d 448, 452, are listed

cases in which this court under earlier acts has rejected fact find-

ings of immigration authorities as “purely arbitrary.”’)

Indeed, if what Judge Byrne ,said is valid,*then even if the

Special Inquiry Officer had purported to exercise a discretion to ~

deny voluntary departure, (I have shown he did not), a reviewing

‘eourt could well conclude that a discretion exercised on these

grounds was an arbitrary one,—an abuse of discretion. The sug-

gestion of the majority that a court may never ‘interfere with the

exer¢ise of discretion: by the ‘Attorney. General is not good law.

Thus in Wolf v. Boyd, 9 eir., 238 F. 2d: 249, 254, 257, this éourt..

expressly recognized the power of a court to review even dis-

eretionary orders “when ‘there has been a elear abuse of discre-

tion”, or where “the denial of disere*ionary relief was arbitrary”.

So, in Hintopoulos v. Shaughnessy, 953 U.S. 72, the, court recog-

nized this exceptional case when it said “Nor can we say that it

was abuse of diseretion to withhold relief in this case. bs

If disergtion.had been exercised here, I would hold it arbitrary,

and an abuse of discretion for the reasons stated by Judge Byrne.

Such a decision -is not called for here, for no discretion was ever

exercised. /

H

t

: xvi

Jaffe, ‘Judicial Review : Questions of Fact,’’ 69 Harv.

L. Rev. 1020, at 1032; ‘‘It would seem that the pur-

pose of the ‘whole record’: test is to limit the oppor-

tunity for transmuting a preconception into judgment

‘by picking and choosing what will support that pre-

conception and willfully ignoring whatever weighs

against it. Thus, even on a credibility issue we should

probably not tolerate the intuitive ‘hunch’ where the

record evidence overwhelmingly points to the con-

trary. The ‘hunch’ may of course be honest and it may

be right. But it may équally mask the sheer determi-

nation to find a certain way, and thus substitute thé

will ofa man for the ‘reason’ of law.” :

Deportation is serious business. It may result irf the

loss ‘‘of-all that makes life worth living.’’ Bridges v.

Wixon, 326 U.S. 135, 147. And the man entitled’ to

have a review in court should not be denied it.

(Endorsed :) Opinion, Coneurring Opinicn and Dis-

senting Opinion. Filed July 11,1958. - @

Paul P. O’Brien, ‘Clerk.’

a oe

4

=

‘ta

|

}

i

i

Salle Seisioas heii se yee aaa

ad Sat ee 1 . “ “OR ey ae * ‘

Tees Sete eRe ON ET LTCC. ne oe ene at Mamet oT mE Ts

peerage earner armen

RaW See SE SO

ria :

. . F

Appendix B

‘UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service _

San Francisco, California

—_— 25, 1953

File: V-944377

In re: Basilio Fugiani

In Deportation Proceedings

In Behalf of Respondent:

_ Z. B. Jackson, Aidsibay | at Law

580 Washington Street

San Francisco, California

Charges:

Warrant: Aci of 1924—Remained jonge>—vikitor

Lodged: None. "4

: Application: Suspension of deportation and ae

departure in the alternative.

Detention Status: Released on conditional parole.

Warrant of arrest served: June 25, 1951.

Discussion: This record relates to a 28 year old

married male, a native’ and: citizen of Italy who last

entered the United States at the port of New York

as a passenger on the motor ship ‘‘Sobieski”’ at which -

time he was.admitted by a Board of Special Inquiry

-as a temporary visitor under bond to June 1, 1950.

That entry has been verified. The period of admis-

sion was not extended and the respondent has re-

mainéd in the United States since June 1, 1950 with-

<3

out sathonity He is therefore deportable under the

Irmigration Act of 1924 on thé charge stated in the

warrant of arrest which is fully sustained.

This matter first came up for hearing under the

warrant of arrest on Sept. 23, 1952 at which time the —

respondent applied for suspension of deportation with

an. alternative application for voluntary departure in

the event he was found ineligible for the maximum |

- relief requested. As evidence of his eligibility for dis-

cretionary relief, the respondent presented Immigra-

tion Form I 256A which was executed‘ by him before

the Deportation’ Examiner presiding at ‘this hearing

on Sep. 23, 1952 (Exhibit 3).

The respondent executed ‘the jurat at the end: of

Exhibit 3 under oath that the contents of the applica;

tion were true to the best of his knowledge and belief .

including certain corrections marked 1 to 6 were i. ° ¢

by him or at his request. In this application form the

respondent testified among other things: that his de-

portation would result in serious economic detriment

‘to his United States citizen spouse to whom he “was

married in San Francisco on March 28, 1950.

He ‘also testified that he had not been previously

married. At the conclusion of the proceedings on

Sept. 23, 1952, the Hearing Officer found the respond-’

ent eligible solely for voluntary departure and en-

tered an order granting such ‘relief with an alterna-

‘tive order of deportation. On the following day, the

proceedings were reopened by the Hearing Officer on

his own motion at which time the respondent advised

that he had just received information from the Amer-*

4

Sent BS ey on eter Fred BOOM Es 4 ety ALB AS. 6S ete EE RPS Dt ee

ae bd

PRE NEES, Ries a ad akey* eald

Sr

.

te ae aE gil atte Sat ane canta 05S a hl Sa

xix.

. jean Consul in Vancouver that he might readily obtain

an immigration visa at that Consulate, and in addi-

tion to the relief already granted applied for pre:

examination. At the conclusion of that proceeding, the

Heariigg Officer found the alien deportable on the

charge contained in the warrant of arrest and entered

an order granting voluntary departure together with

the additional privilege of preexamination with an

alternative order of deportation. The respondent was

formally advised as to the authorization for preexam-

ination on Oct. 7, 1952 and advised that such author-

ization would terminate on Dee. 23, 1952. He received

several extensions of the time within which he was to

depart under the order granting voluntary departure;

‘the last of Which expired on July 20, 1953 with notice |

that that was the final extension and no further time

“ would be granted. In the meantime, the respondent’s . °

wife filed.a visa petition in his behalf which was ap-

proved’and later found its way to the American Con-

- sul at Vancouver in the usual course of events. Under

date of June 23, 1953, this office received a conimuni-

cation from the Central Office: of the Immigration and

— Naturalization Service containing information. that

this respondent had beén previously married and that

he had presented ‘no. evidence to the American Con-

sulate in Vanéouver that his prior marriage had béen

terminated. The respondent admits having received —

a letter from the United States Consul General at

Vancouver, B.C., Canada dated ° November 25, 1952

through-his advisor, Mr. J. S. Forte, 57 Columbus.

Avenue, San Francisco 11, California which i is quoted

in part as follows: _

xx” - 8

’ “In further reference to the case of Mr. Fugiani,

it is noted that in his preliminary application he

stated that he has not been married previously;

‘and in her petition for her husband’s preference

status, Mrs. Ida Maria Artigiani Fugiani piso

stated that her husband has not been previously

married. Information on file at this office indi-

eates that Mr. Fugiani was previously married to

a German girl while he was a prisoner of war in

Germany. Before the Consulate General could

take*further action in Mr. Fugiani’s case, it will .

be necessary for him to submit documentary evi-

dence of the termination of this previous mar-

riage.’’ ,

A copy of that communication was. forwarded to

this office. The respondent then through Counsel re-

quested additional time within which to ‘depart in

order.to enable him to complete an annulmént action.

In view of the above developments, the ease was

reassigned to a Special Inquiry Officer for appro-

' priate attention and was thereafter ordered reopened

‘for the taking of additional evidence as to the re-

spondent’s eligibility for discretionary relief.

At the.reopened proceedings the respondent pre-

sented ‘a decree of annulment entered in the Civil and

Penal Tribunal of Ancona, Italy on the 10th day of

J uly, ‘1953 showing the termination of his marriage

to oné Elly Martha Porg residing in Berlin—Koch-

kausstrasse N. 33 was contracted on Sept. 4, 1945 in

the City of Berlin. In the action for annulment, the .

respondent ‘alleged through Courisel that after having

- escaped P as a prisoner of war camp in or hear Ber-

_—s) ws TT

& .

C an

lin, Germany, in 1945, he was given shelter by the

family of Elly Porg for approximately 15 days. And,

-on that occasion, he was asked and he did affix his

signature in the presence of third parties on a sheet -

of paper for the purpose, as he was told, To let the

Porg family obtain food rations and clothing since

they were his hosts and went on to state that he never

intended to contract matrimony with the said Elly -

and that the marriage had never beert consummated.

It is also noted that in the decree of annulment that

mention is made of the fact that Elly Porg appeared

through her constituted attorney which is followed by¥

another statement, ‘Being she was present however

in person”’ at the proceedings and is alleged to have

been’ questioned. .

The record in this case clearly indicates that the

respondent attempted to obtain an immigration visa

for admission to this country through fraud and that

‘he carefully concealed. from the authorities. that,, he

had been previously married. His. statement to the

“effect that he went through a marriage ceremony and’

signed papers in Berlin in the belief that the proceed-

ings related only to rationing is incredible. It is indi-

cated that he was in company of several other escaped

Italian war prisoners who also signed papers copeern-

ing rationing and they certainly did not all go through

th ame procedure. It might be observed here that

(x;many for many years has maintained excellent

records of -vital statistics, and it is inconceivable that

-an alien however unfamiliar with the German lan-

guage in possession of all’ of his faculties could

©" «

actually go through a marriage ceremony without

being conscious of the fact. It appears that he and

the other Italian prisoners were able. to make them-

selves understood by the Porg family who evidently

spoke only German and in the event they were able.

to explain to this respondent that they needed his sig-

nature for additional food and clothing, it naturally

follows that he should have been able. to understand

that a marriagé was involved. I’ believe that this re-

spondent was fully aware of. his prior marriage and

deliberately withheld such information from the au-

thorities of this, country even -to the extent of com-

mitting perjury in his application for discretionary

relief. This respondent has shown an utter disregard .

for the Immigration laws of this country. After being ©

admitted under bond for a short period -of time and

-being denied an extension of stay, he deliberately. vio-

lated the status of his admission and the bond was

breached, It is noted that. the date of his marriage

to the American citizen was contracted exactly one

month after the date of his admission. The conclusion .

is justified that he was never a bona fide visitor and

that his intentions in the first instance were to remain

in the United States at-all costs. In view of all the

facts and circumstances, I can only conclude that the

respondent is wholly ineligible for any type of dis-

cretionary relief and should be deported and shall so

order.

ce

—

Sede % 2 ee See

way .

— as ae oro oe

FINDINGS OF FACT:

Upon the basis of all the evidence presented, ‘it is

found: aks sae p 3 |

(1) That the respondent ian ain a native and

citizen of Italy; . - \ | |

(2) That the respondent last entered the United

States on February 22, 1950 at New York, New |

oe ork as a passenger on the MS Sobiesky- at which

time he was admitted as‘a visitor to June 1, 1950.

(3) That the period of admission was not ex-

tended ; _*

(4) That the resporident has remained: in the

. United States for longer than the period for

which he‘was admitted. -

CONCLUSION OF LAW:

Upon the basis of the foregoing findings of fact, it.

is concluded :

(1) That under Sections 14 and 15 of the Immi-

gration Act of May 26, 1924, the respondent is

subject to deportation on,the ground that after

admission as. a visitor, he has. remained in the

- United States for a longer period than permitted

under said Act or regulations made thereunder.

ORDER: It is wel that the alien he deported

from the United States in the manner provided by

law on the'charge contained in the warrant of arrest.

/s/ P. R. MeLaughlin

P. R. McLaughlin

, Special Tnquity Officer

PRM;as |

=

Appendix ¢

. UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF ee me APPEALS

OCT 5—1%54

File: * V.944377—San Francisco |

In re: Basilio Fugiani

In Deportation Proceedings

In Behalf of Respondent:

Z. B. Jackson, Esquire

580 Washington Street ~

San Francisco, Californya

(Brief filed)

CHARGES:

Warrant: Act of 1924—Remained Longer--V taito ir

Lodged : None

APPLICATION : Voluntary ‘adinds and prees-

amination '

“DETENTION STATUS: Laeuneed on conditiona!

parole

: The case comes forward on appeal from the order

of a special inquiry officer dated September 25, 1953

directing that the respondent be deported on the,

‘charge stated in the warrant of ‘arrest.

The record relates to a native and citizen of Italy.

39 years old, male, who last entered the United States

at the port of New York on February 28, 195+) and

was admitted as a temporary visitor to June 1, 1950.

It is conceded that he is subject to déportation on the

lt i

charge stated in the warrant of arrest. The only issue

before us is the matter of discretionary relief...

At the hearing held September, 23, 1952, the re-

spondent applied for suspension of deportation and

- -in the alternative voluntary, departure. In connection

therewith, he executed linnhavation K orm 1-265A ex-

vented before the deportation examiner then presiding

on September 23, 1952 under oath. In this application

‘form, the respondent related that his deportation

would result in serious economic detriment to his citi-

zen wife whom he married in San Francisco on March

ox: 1950, He testified that he had not been previously -

married, At the conelusion of the proceedings, the

respondent under order of* September 24, 1952 was

- granted the discretionary relief of voluntary depar-

‘ture in lieu of deportation together with preexamina-

tion, A’visa petition filed by the wife on behalf of the

respondent was approved, and such approval was in

due course transmitted to the American Consulate,

Vancouver, 1, C. The Consul under date of November

25, 1952 informed the respondent through his repre-

sentative that whereas the preliminary applicatiorf of .

the respondent stated that he had not been previously

married, that the respondent was previously married

toa German girl while a prisoner of war in Germany.

[i view of this information. the proceedings were

‘ordered reopened,

At the reopened proceeding, the respondent pre-

sented a deeree of annulinent entered in the Civil and

Penal Tribunal of Ancona, Italy on July 10, 195%

showing the termination of his marriage to one Elly

Martha Porg, such marriage havi ing been: contracted

on September 4, 1945 in the City-of Berlin, Germany.

‘It is the contention of the respondent that he wa:

tricked. into marriage by the girl and her parents.

This was done after the respondent had escaped from

the prisoner of war camp in Germany in 1945, after

which he was given. shelter by the family of Elly: Porg |

for approximately 15 days; that during this time lh

- affixed his signature in the presence, of a ‘third ‘party?

on a sheet of paper for the ostensible purpose of per-

mitting the Porg family to obtain food rations and

clothing since they were his host. He dénied that lic

intended to contract matrimony and stated that the

_ marriage had never been consummated.

The special inquiry officer who heard the testimony

of the respondent and had an opportunity to observ

- his behaviour and demeanor has characterized the ex-

planation given by the respondent in regard to his

marriage to Elly Porg as incredible. He hasyeoncluded

that the respondent was fully aware ‘of hig prior mar-

riage and deliberately withheld such information from

the immigration huthorities for the purpost of obtain-

ing discretionary relief. Upon eonsideratjon of, the

entire record and taking into acco @ argumetits

advanced by counsel in. his brief, we come to the éon-

clusion that the decision should: not be disturbed.

Accordingly, the appeal will be dismissed. -

ORDER: It is ordered that the appeal be-and the

same is hereby dismissed.

1s! | Thos. G. Disiinine

, “Chairman

| ¥

/

Appendix D

July 28, 1953

Memoranduni for attention of Special Inquiry Officer

P. R. MeLaughlin and Docket Clerk.

in the Inquiry Section

Re: Basilio Fugiani

V-944377

It is noted that -at the conclusion of warrant pro-

ceedings before Special Inquiry Officer Robert 8S, De-

Moulin on September 24, 1952, the following order

wa: entered: : | :

“It is ordered that the respendent be. permitted

to depart voluntarily from the United States at

his own expense within 120 days ‘after this order.

‘It is further ordered that if the respondent fails

' to depart voluntarily from the United. States

within 120 days from the date of this order or

any authorized extension ‘thereof, that he be de-

ported fromthe United-States pursuant to law on

the charge set forth in the Warrant of Arrest. |

“It is further ordered that preexamination he

authorized, providing av nited of prior to Decem-

ber 24, 1952.’”

te view of the fact that evidence has now been fur-

nished to the Immigration and Naturalization Service

indicating that the respondent’s sworn statements as _

to his marital situation at the time of. his application

for discretionary relief ‘granted at the ahove order

wire not in accordance with the true facts in his ease

and created a presumption at least that he may not

XXViii

~ have been in all respects eligible for such relief, it

appears that further proceedings are necessary to de-

termine the respondent’s eligibility for discretionary

: relief.

Since the special j inquiry officer previously assigned

to hold the hearing in this matter is not now immi-

diately available, the case will be and is hereby . re-

assigned to Special Inquiry Officer P. R. McLaughlin

_ for such proceedings as may be required for the ap-

— disposition of the case:

L. E. Gowen, . | eh

Acting Chief Enquiry Section

ecg socicae om i reece Si a helt vieusica beans AIR ek Aa

-

aS

te) NDR wee Manat ONG QS,