Speech #860087264

U.S. District Court. District of Massachusetts. in an opinion rendered November 24. 1958. on the question of appeals from the decision of the Immigration and Naturalization Service. categorically stated: I am compelled to the conclusion that the appeal is purely frivolous. and filed simply for the purpose of postponing the date when the respondent will eventually be able to accomplish the deportation * * * if the petitioner is released on bail he will be able to enjoy further the freedom of the country. to which he has not even a colorable claim. simply by virtue of filing an appeal which is equally transparent. The processes of the court are not intended for such purpose. * * * I cannot prevent him from seeking to gain opportunities for this by filing a habeas petition. which. if it had been successful. would merely have obtained him a new administrative hearing leading to the same outcome. and then. after a court hearing and finding against him. further taking up the time of the court by a frivolous appeal. but I certainly will not encourage such procedure by giving him the additional relief of overriding an administrative determination that he was not to be admitted to bail. The counsel. representing a deserting seaman in this case. in response to a question of the judge as to what result another hearing would produce. had the audacity to answer: Something might be done In the meantime. such as special act of Congress. Judge Barnes. circuit judge. In affirming judgment of the U.S. District Court for the Southern District of California. quoted the comment of the special inquiry officer who heard this case during the administrative processes: This case is a classical example of the circumvention through dilatory tactics of the prompt execution of the immigration laws of this country. Judge Barnes. in a conclusion of his opinion. wrote: This appeal appears to us to closely approach the frivolous and vexatious. Judge Fee. circuit judge for the U.S. Court of Appeals for the Ninth Circuit. in affirming the decision of the District Court of the Southern District of California in a deportation case. summed up his opinion: The appellant has gained an Inordinate amount of time by an appeal to this court in which there is no merit. In the celebrated case of Pedreiro against Shaughnessy. Judge Bicks. U.S. District Court for the Southern District of New York. wrote in his opinion: Then started what to date has been a successful delaying game. By every dilatory tactic cunning counsel could contrive. a oncedeported alien who confessedly reentered in violation of law has been enabled to remain in the country for more than 5 years after apprehension. * * * It appears instead to be a request that this court lend its aid to the petitioners apparent deliberate program of delaying a final adjudication on the merits. * * * In view of the delay of upwards of 5 years since the deportation proceedings were initiated and the facts and circumstances in this case the request that the petition be held in abeyance is an affront 0 * * the contentions of petitioner can best be described as utterly without merit. Judge Lemmon. circuit judge. concurring with the majority. felt it necessary to add: I concur in affirming the judgment but am constrained to add that this appeal is devoid of the semblance of merit. It should be stamped for what it is. a frivolous appeal. In this proceeding petitioner challenged the legality of an order for his deportation. sought a writ of habeas corpus. declaratory judgment. and injunctive relief. The trial court. after hearing. dismissed the proceeding on the ground that the judgment entered in a prior cause was final and determinative of all the issues presented. Historically. an order for the deportation of an alien could be challenged in the courts solely by habeas corpus proceedings. available to the alien only after he had been taken into custody. In recent years. as a result of judicial decision. it has become possible for aliens to obtain judicial review of an order of deportation upon its issuance. An equally divided Supreme Court. in January 1954. affirmed per curiam a holding that deportation orders issued under the Immigration and Nationality Act of 1952 are reviewable in actions for declaratory judgments as well as by habeas corpus. This was Brownell v. Rubinstein (346 U.S. 929 (1954)). Later. the Supreme Court held that deportation orders entered under the Immigration and Nationality Act of 1952 can be judicially reviewed in actions for declaratory and injunctive relief under section 10 of the Administrative Procedure Act. This was decided in Shaughnessy v. Pedreiro (349 U.S. 48 (1955)). The purpose of this bill is to set up a special form of judicial review of deportation orders. exactly as is contemplated by section 10 of the Administrative Procedure Act. Furthermore. the bill specifies the court in which such action shall be brought. Nothing contained in the bill is. or can be. designed to prevent an alien from obtaining review by habeas corpus.