Giannakis, another United States citizen, on March 7, 1959.
When plaintiff filed his application for adjustment of status on March 16, 1959, 8 U.S.C.A. § 1255 (Pub.L. 85-700, 1, Aug. 21, 1958, 72 Stat. 699), provided as follows:
' § 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence * * *.
'(a) The status of an alien who was admitted to the United States as a bona fide nonimmigrant may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, (3) an immigrant visa was immediately available to him at the time of his application, and (4) an immigrant visa is immediately available to him at the time application is approved. * * *'
The foregoing section, as amended, effective August 21, 1958, had been HR 13451, which was favorably reported by the Committee on the Judiciary of the Senate in its Report No. 2133 of August 4, 1958 (U.S.Code Cong. & Adm.News 1958, p. 3698). That report stated the purpose of the bill to be '(1) to revise section 245 of the Immigration and Nationality Act in such manner as to broaden the discretionary authority of the Attorney General to adjust the status of certain aliens admitted to the United States temporarily as nonimmigrants to that of aliens lawfully admitted for permanent residence in worthy cases, * * *.' The report also points out that section 245 as it was before the enactment of the bill provided that 'the status of an alien who was lawfully admitted to the United States as a bona fide nonimmigrant and who is continuing to maintain that status may be adjusted by the Attorney General to that of an alien lawfully admitted for permanent residence * * * as a nonquota immigrant who is the spouse * * * of a United States citizen, under certain * * * conditions. Those conditions are that the alien must make application for the adjustment; the alien must be admissible to the United States for permanent residence; a * * * nonquota immigrant visa must be immediately available at the time the alien makes his application and also at the time his application is approved and if the alien claims nonquota status as the spouse * * * of a United States citizen, he must have been in the United States for at least 1 year prior to acquiring that status. * * * The language of the instant bill has been carefully drawn so as not to grant underserved benefits to the unworthy or undesirable immigrant. This legislation will not benefit the alien who has entered the United States in violation of the law. Further, this legislation does not affect the statutory standards of eligibility for immigration into the United States * * *. In conformity with the existing statutes, the language of the bill has been drawn so as to permit its application to the cases arising thereunder pursuant to all the discretionary powers of the Attorney General to waive or grant exceptions from the grounds of exclusion relating to aliens seeking immigrant visas including, but not limited to, the Attorney General's powers under the act of September 11, 1957.' P.L. 85-316, 71 Stat. 641, 8 U.S.C.A. § 1255a.
This Court's own research corroborates counsel's stated inability to find any case specifically dealing with section 245 of the Immigration and Nationality Act, as amended August 21, 1958. Although he would otherwise have been excludable under 212(a)(16) of the Act, 8 C.F.R. § 212.2 enables plaintiff to overcome the obstacle of his prior deportation, by reason of having married his second wife, Jennie, on March 7, 1959. Because he had a wife who was a United States citizen, he was authorized, by 8 C.F.R. 212.2, to reapply for admission to the United States despite his prior deportation. The section of the Regulations relied upon also required that the applicant be an alien 'eligible to receive an immigrant visa and * * * admissible for permanent residence.' As the spouse of a citizen of the United States, plaintiff would, as a nonquota immigrant, 8 U.S.C.A. § 1101(a)(27)(A), be eligible to receive an immigrant visa, provided he was 'admissible to the United States for permanent residence.' 8 U.S.C.A. § 1255(a). There was substantial evidence before the District Director that plaintiff had not lawfully entered the United States as a bona fide nonimmigrant. See United States ex rel. Feretic v. Shaughnessy, 2 Cir., 1955, 221 F.2d 262, certiorari denied 1955, 350 U.S. 822, 76 S. Ct. 49, 100 L. Ed. 735; Tsimounis v. Holland, D.C.E.D.Pa.1955, 132 F.Supp. 754, affirmed 3 Cir., 1956, 228 F.2d 907; Mascarin v. Holland, D.C.E.D.Pa.1956, 143 F.Supp. 427; Lukman v. Holland, D.C.E.D.Pa.1957, 149 F.Supp. 312.
The contentions of the parties here are emphatically at variance respecting the right of judicial review of the administrative proceedings below. Plaintiff contends that the right of such review is afforded by section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009; while the defendants contend that the terms of that section, when read in the light of the appropriate construction of section 245 of the Immigration and Nationality Act, expressly preclude such review because the agency action below was, by law, committed to agency discretion. In MacKay v. McAlexander, 9 Cir., 1959, 268 F.2d 35, 40, the Court of Appeals affirmed the District Court in refusing to set aside a deportation order, and in affirming administrative denial of an application for a suspension of the deportation. That case pointed out that the granting of suspension of deportation to one who, because of hardship, would be eligible therefor 'is an act of grace entrusted to the discretion of the Attorney General or his delegate.' In support of this proposition the Court cited Jay v. Boyd, 1956, 351 U.S. 345, at page 353, 76 S. Ct. 919, at page 924, 100 L. Ed. 1242, adding that judicial review of the exercise of such administrative discretion is confined within the extremely narrow limits pointed out in Cakmar v. Hoy, 9 Cir., 1959, 265 F.2d 59, 61. In the Cakmar case, the administrative application was for a stay of deportation under 243(h), 8 U.S.C.A. 1253(h), which authorized the Attorney General to withhold deportation of any alien '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.' In affirming the District Court in its judgment sustaining the denial of a stay of deportation, the Court of Appeals reemphasized the long-established principle that because of the statutory discretion reposed in the Attorney General an alien is not entitled to a hearing as of right. The Attorney General may act upon such application or not, as he may choose, and neither section 5 nor section 10 of the Administrative Procedure Act entitles the applicant to judicial review of the denial of his application. While the opinion stated that the Court had jurisdiction to determine whether the alien was accorded constitutional due process, ' 8 U.S.C.A. 1253(h) is a statute coming within the terms of 5 U.S.C.A. § 1009, rather than 5 U.S.C.A. § 1004.'
Another case involving an application for suspension of deportation, although brought under the 1917 Immigration Act, is Arakas v. Zimmerman, 3 Cir., 1952, 200 F.2d 322, in which the Court of Appeals was confronted with the question whether the applicant for suspension of deportation had been accorded due process. The Court followed United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, in its holding that 'The decision of the Attorney General in refusing discretionary relief to a deportable alien is not subject to judicial review, at least where the ground stated for the refusal is not 'on its face insufficient." (200 F.2d 324) To a similar effect see United States ex rel. Zabadlija v. Garfinkel, 3 Cir., 1949, 173 F.2d 222. The statutory language construed in the foregoing cases, as compared with that of section 245, as amended by the act of August 21, 1958, and the legislative history of the latter amendatory enactment impels me to the conclusion that the decision of the Attorney General's duly delegated representatives upon an application for adjustment of status under the section referred to is purely discretionary, and therefore not judicially reviewable. See United States ex rel. Citroen v. Shaughnessy, D.C.S.D.N.Y.1955, 132 F.Supp. 445; Naselli v. Holton, D.C.Ill.1956, 138 F.Supp. 893.
Upon the record presented I can find no basis for conclusion that plaintiff was deprived of constitutional due process. In addition to plaintiff's written application for adjustment of status embodied in Form 1-507 as prescribed by 8 C.F.R. § 245.1 and prepared under the guidance of his attorney, the District Director and the Regional Commissioner had before them plaintiff's complete immigrational dossier covering the previous deportation proceedings in which he had been involved. This material included the evidence upon which the deportation warrant of July 7, 1958 had been made, the execution of which plaintiff had unsuccessfully endeavored to forestall or delay. Although used in the deportation proceedings, that evidence was still available for consideration upon the section 245 application and relevant to the issue whether the discretion invoked should or should not be exercised in favor of the application. Although the decision of the District Director was expressly grounded only upon his construction of the effect of the marriage annulment decree upon plaintiff's right to make the application, all of the other material constituting plaintiff's dossier was available as additional justification both to the District Director and to the Regional Commissioner for denying the application. Plaintiff, therefore has shown no denial of constitutional due process. Indeed, the record discloses sound exercise of the statutorily delegated discretion.
The order to show cause made in this cause on October 17, 1959 is discharged and the complaint herein is dismissed. Submit appropriate order.
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