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BATISTIC v. PILLIOD

United States District Court, Northern District of Illinois, E.D


March 22, 1960

FRANO BATISTIC
v.
ALVA L. PILLIOD, DISTRICT DIRECTOR, CHICAGO DISTRICT U.S. DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE.

The opinion of the court was delivered by: Perry, District Judge.

Defendant, District Director, seeks an order under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. granting summary judgment and dismissing the complaint herein.

Frano Batistic, plaintiff, is a native and citizen of Yugoslavia who legally entered the United States on April 14, 1958 as a nonimmigrant visitor and who has been ordered deported under Section 241(a)(2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a)(2) on the ground that after admission as a nonimmigrant under Section 101(a) (15) of said Act, 8 U.S.C.A. § 1101(a) (15) he remained in the United States for a longer time than permitted.

On January 29, 1959, plaintiff made application under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h) for a stay of deportation on the ground that he would be physically persecuted if deported to Yugoslavia, and on February 25, 1959, a hearing and interrogation was held before a Special Inquiry Officer of the Immigration and Naturalization Service.

On March 30, 1959, the Special Inquiry Officer recommended that plaintiff's application for a stay be denied and on April 21, 1959, the Regional Commissioner of the Immigration and Naturalization Service, having reviewed that recommendation, ordered that plaintiff's application for stay of deportation be denied.

Plaintiff has instituted this proceeding under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., for a declaratory judgment that the entry of the order denying plaintiff's application to withhold deportation to Yugoslavia was an abuse of administrative discretion, was arbitrary and capricious, and was in excess of and an abuse of the authority and power of the defendant.

Plaintiff's deportability is not contested.

The record in this case shows, among other things, that plaintiff (who was 17 years old at the time of the hearing on his application for stay of deportation) was represented by counsel of his own choice, that he was assisted by an interpreter, and that during the course of the hearing three witnesses, called by him, testified in his behalf.

Plaintiff claimed that if deported to Yugoslavia he would be physically persecuted because of his religious and political beliefs.

Quoting in part from the language used by the Regional Commissioner in his order of April 21, 1959:

    "He testified that he is a Roman Catholic and
  anti-Communist and will, therefore, be persecuted in
  Yugoslavia.

    "His testimony establishes that he has never at any
  time been physically persecuted in Yugoslavia
  although he always attended religious services, and
  it was well known that both he and his family were
  anti-Communist. There is no evidence to indicate
  active opposition to the government of Yugoslavia as
  both he and his father were issued passports and
  permitted to visit the United States. His father has
  returned to Yugoslavia and no claim has been made
  that he has been physically persecuted since his
  return.

    "In re Rudolf Kale, A9 555 532, April 23, 1958, it
  was stated that from various sources, including the
  personal observations of officers of this Service in
  that country it was found that:

    "`Churches throughout the country are open for
  public worship and religious assembly and they are
  being maintained and repaired, obviously with
  Government permission, if not with its approval or
  support. It must also be recorded that the Yugoslav
  regime granted asylum to thousands of anti-Communist
  Hungarians fleeing the latter country, and it refused
  to repatriate them involuntarily, while assisting in
  arrangements to settle them in western countries.'

    "It is evident from the foregoing that physical
  persecution because of religious or anti-communistic
  beliefs does not exist in Yugoslavia today.

    "In addition to his general claim of physical
  persecution on account of religious and political
  beliefs, this applicant has advanced and stressed the
  further claim that he will be physically persecuted
  while undergoing his military training in Yugoslavia
  by being assigned to some obscure post or camp. This
  claim must

  be rejected as pure conjecture on the part of the
  applicant as he certainly has no advance knowledge of
  how, when or where he will undergo military training
  or even if he will undergo such training at all.

    "After examination of the entire record and other
  available information, it is concluded that the
  applicant will not be physically persecuted if
  deported to Yugoslavia at this time. The findings and
  recommendation of the Special Inquiry Officer will be
  approved and adopted, and a stay of deportation under
  Section 243(h) will be denied."

Section 243(h) of the Immigration and Nationality Act (8 U.S.C.A. § 1253(h)) authorizes the Attorney General "to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason." Discretion is clearly vested in the Attorney General by the statute.

In United States of America ex rel. Cantisani v. Holton, 7 Cir., 1957, 248 F.2d 737, 738, (a habeas corpus proceeding) the court said:

    "In the field of immigration and nationality,
  Congress has vested wide discretionary powers in the
  executive branch of the government. United States ex
  rel. Leong Choy Moon v. Shaughnessy, 2 Cir.,
  218 F.2d 316, 318. The Attorney General or his delegate has
  been given a wide area of discretion in those cases
  where the alien believes that he would be subjected
  to persecution if deported to a specified country.
  United States ex rel. Dolenz v. Shaughnessy, 2 Cir.,
  206 F.2d 392, 394. However, where an alien has been
  accorded procedural due process and his application
  has received fair consideration, courts may not
  substitute their judgment for that of the Attorney
  General or his representative. See, United States ex
  rel. Ciannamea v. Neelly, 7 Cir., 202 F.2d 289, 293.

    "The comparable section to § 243(h) in the
  predecessor statute (§ 23 Internal Security Act of
  1950, 64 Stat. 1010) provided: `No alien shall be
  deported under any provisions of this Act to any
  country in which the Attorney General shall find that
  such alien would be subjected to physical
  persecution.' The change in language in the present
  statute has been interpreted by the courts as
  indicating an attempt by Congress that in cases where
  the alien claims he would be subjected to physical
  persecution, the determination of such claim shall
  rest in the administrative judgment and the opinion
  of the Attorney General or his delegate, United
  States ex rel. Dolenz v. Shaughnessy, 2 Cir.,
  206 F.2d 392, and United States ex rel. Leong Choy Moon
  v. Shaughnessy, 2 Cir., 218 F.2d 316, assuming, of
  course, the alien has been afforded procedural due
  process and that the hearings as conducted were not
  manifestly unfair to him."

A review of the entire record in this case convinces this court that in the hearing on his application to stay deportation the plaintiff herein was accorded procedural due process, and that his application received fair consideration. The record shows no unfairness, arbitrariness or capriciousness.

In Anderson v. Holton, 7 Cir., 1957, 242 F.2d 596, which was an appeal from an order "that suspension of deportation is a statutory privilege within the discretion of the Attorney General of the United States, that is `Agency action by law committed to agency discretion,' and which accordingly was not available for review under 5 U.S.C. § 1009," the court said, at page 597:

    "Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919 [100
  L.Ed. 1242], impressively attests to the unfettered
  discretion granted the Attorney General by § 244 of
  the Immigration and Nationality Act of 1952, 66 Stat.

  215, 8 U.S.C.A. § 1254. Because Congress went on to
  confide such discretion in the Attorney General we
  think an instance of judicially nonreviewable
  administrative discretion arises under § 10 of the
  Administrative Procedure Act, 60 Stat. 243,
  5 U.S.C.A. § 1009 providing:

    "`Except so far as * * * (2) agency action is by
  law committed to agency discretion * * *

    "`(e) Scope of Review. — So far as necessary to
  decision and where presented the reviewing court
  shall decide all relevant questions of law, interpret
  constitutional and statutory provisions, and
  determine the meaning or applicability of the terms
  of any agency action. It shall (A) compel agency
  action unlawfully withheld or unreasonably delayed;
  and (B) hold unlawful and set aside agency action,
  findings, and conclusions found to be (1) arbitrary,
  capricious, an abuse of discretion, or otherwise not
  in accordance with law; (2) contrary to
  constitutional right, power, privilege, or immunity;
  (3) in excess of statutory jurisdiction, authority,
  or limitations, or short of statutory right; (4)
  without observance of procedure required by law; (5)
  unsupported by substantial evidence in any case
  subject to the requirements of sections 7 and 8 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 the foregoing
  determinations the court shall review 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.'"

It is the view of this court that the discretion vested in the Attorney General by Section 243(h) — agency action by law committed to agency discretion — is another instance of judicially nonreviewable administrative discretion arising under said § 10 of the Administrative Procedure Act, and that this court is without jurisdiction to review the order complained of which denied plaintiff's application to stay deportation.

Like so many others who unsuccessfully seek the security and benefits of this country, plaintiff would undoubtedly have made an excellent American citizen and a valued member of any community in which he might have settled. The granting of relief under Section 243(h), however, is not and cannot be based solely on plaintiff's good character and potential as a citizen.

The motion of defendant for summary judgment will be granted.

19600322

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