The opinion of the court was delivered by: WORTENDYKE
In this case the plaintiff alien seeks a review of a denial of his application, made pursuant to section 245 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1255, for an adjustment of his status from that asserted to be a bona fide nonimmigrant to that of an alien lawfully admitted for permanent residence as a nonquota immigrant.
Invoking the Declaratory Judgments Act, 28 U.S.C. § 2201 et seq., and the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., as was done in Shikoh v. Murff, 2 Cir., 1958, 257 F.2d 306, the plaintiff seeks, in this Court, an adjudication that the hearing granted to him upon his application for adjustment of status was insufficient and unfair, and that the denial of his application was contrary to law. He therefore seeks a hearing de novo upon his application, and interim injunctive relief against his threatened deportation.
In consequence of the denial of plaintiff's application for adjustment of status he was ordered to depart the United States on or before October 17, 1959, and, by this Court's order of that date the defendants were directed to show cause why his arrest and deportation should not be enjoined. Upon return of this order, briefs were submitted and oral argument made by the parties upon the issue of the legality and propriety of the Section 245 proceedings before the Immigration and Naturalization Service upon the allegations of the complaint, the exhibits annexed thereto and the record below.
Plaintiff has annexed to his complaint copies respectively of the District Director's denial of his application, dated May 4, 1959, and of the decision of the Acting Regional Commissioner, dated September 10, 1959, affirming the District Director. From the recitals in the decision by the Regional Commissioner it appears that plaintiff is a 26 year old married male, a native and citizen of Greece, who last arrived in the United States at the Port of New York, on October 17, 1958, as a crewman aboard the S.S. Theopan. He was admitted upon his arrival for a period of time during which the vessel remained in port, not to exceed 29 days, pursuant to 8 U.S.C.A. § 1282(a)(1), but remained ashore without legal authority until March 13, 1959, when the application under review was submitted. It was also found that plaintiff had previously entered the United States on October 15, 1956, also as an alien crewman, and on that occasion, as well, overstayed his conditional permit. Pursuant to the provisions of an administrative order to show cause dated November 19, 1956, plaintiff was granted the privilege of departing the country voluntarily on or before December 23, 1956. He thereupon disappeared, and his whereabouts were unknown until May of 1958, during which month he submitted an application for preexamination, claiming quota availability by reason of his marriage, on April 24, 1958, to a citizen of the United States. In the course of an investigation of the preexamination application, ex parte affidavits were obtained from plaintiff's then wife, Harriet Oswin Angelis, and her mother, indicating that the marriage had never been consummated and that the principals had never lived together since the ceremony. A motion to reopen deportation proceedings during the pendency of the application for preexamination was denied by a Special Inquiry Officer on July 8, 1958 and on July 16, 1958, the plaintiff left the United States under a deportation order. It further appears that on February 26, 1959, plaintiff secured an annulment of the aforesaid marriage, and on March 7, 1959, married another United States citizen, Jennie Giannakis, whose petition in plaintiff's behalf, to accord him nonquota immigrant status, was approved.
The Regulation referred to, insofar as applicable, provides as follows:
'Any alien who is excludable under paragraph (16) or (17) of section 212(a) of the act and who has a * * * spouse * * * who is a United States citizen or an alien lawfully admitted to the United States for permanent residence, is hereby granted permission to reapply for admission to the United States, except that this grant of permission to reapply shall not be regarded as a waiver of grounds of excludability as provided in section 5 or 7 of the Act of September 11, 1957 (8 U.S.C.A. §§ 1182b, 1251a)'
Counsel for plaintiff in the departmental proceedings sought to overcome the District Director's denial of adjustment of status by submitting an application for permission to reapply for admission after deportation, and requested that such application be granted nunc pro tunc. The Regional Commissioner held that the application for permission to reapply nunc pro tunc was moot because the applicant had a United States citizen spouse on October 17, 1958, and, therefore, had permission to reapply under the provisions of 8 C.F.R. § 212.2 as revised January 8, 1958. Nevertheless, the Regional Commissioner found plaintiff ineligible for adjustment of status under 8 U.S.C.A. § 1255(a) because of his record as an abscondee, his failure to report his address, his desertion from his vessel, his 'cloudy' marriage, and the dubiousness of the purpose of his then more recent marriage. Accordingly, the discretion reposed by the statute in the Attorney General, and duly delegated by him to the Regional Commissioner, was exercised adversely to the application and its denial by the District Director was affirmed.
In his signed sworn statement, given to Immigration Officer Frank G. Hayden on November 15, 1956, plaintiff stated that he had last previously entered the United States at Philadelphia on October 16, 1956, as a crewman of the S.S. Evicynthia upon a landing permit, for the purpose of going to New York City to get some rest, and with the intention of reshipping within fifteen days. He had theretofore previously entered as a crewman at Baltimore, Maryland, in 1953. He stated that he desired to apply for the privilege of voluntary departure at his own expense in about a month, and had been promised a berth as a crewman on the S.S. Afros, sailing about December 8, 1956.
Upon return of the order to show cause on November 23, 1956, plaintiff was accorded a hearing, was sworn, waived counsel, and admitted his entry of October 16, as a nonimmigrant crewman for the limited period expiring November 14. He also admitted that he overstayed his permit and reiterated his request for leave to depart the United States voluntarily, in lieu of deportation. An order for his voluntary departure on or before December 24, 1956 was made accordingly, with the alternative of submission to deportation on December 26th. His whereabouts thereafter were unknown to the Immigration and Naturalization Service until May 13, 1958, when Leo E. Ypsilanti, Esq., a member of the New York Bar, representing himself as attorney for plaintiff, wrote to the Immigration and Naturalization Service, enclosing an application for preexamination, with fee and copies of certificate of his marriage, dated April 24, 1958, to Harriet Oswin, and of her birth certificate. Thereupon the Deputy Director ordered investigation, and obtained from plaintiff's wife, Harriet Angelis, an affidavit sworn to June 25, 1958 at the home of her parents, 243 South 11th Street, Newark, New Jersey, which disclosed that, on April 24, 1958, the day of her marriage to the plaintiff, she had attended at the office of plaintiff's attorney in New York City, where she signed some papers, the nature and effect of which she did not indicate. She further stated that following the marriage ceremony plaintiff left her, and that they had never lived together as husband and wife. She also said that about a week later plaintiff told her, in her mother's presence, that the only way he could remain in the country was to get married, and that if she reported this to the I.N.S., she would be imprisoned and he would be returned to Greece. She also stated that about a month prior to the date of making her affidavit, plaintiff came to her home and had her sign some papers without telling her what they were for, that she signed them, and that he told her that it was necessary that he bring them back to his lawyer in New York City. On June 26, 1958 (the day following the making of this affidavit) I.N.S. Investigator Frank P. Salierno interviewed plaintiff's said wife at the office of the Service, in Newark. Waiving counsel there, and testifying under oath, Harriet said that she was living with her father and mother at 463 South 11th Street, Newark; that she married the plaintiff on April 24, 1958 at a church in Newark; that the plaintiff had never lived with her, that they had never lived with her, that wife, and that she was induced to marry him by his promise to become a good father for her previously born son. She also stated that on the day of, but following the marriage, he told her he did not want to live with her and that she would have a divorce in about four months. She also stated that prior to the marriage she and the plaintiff had visited his lawyer in New York City, where she signed certain papers at the lawyer's request. She was shown I.N.S. Form No. I-133, upon which she identified her signature, but was unable to say whether the document was one of those which she had signed at the lawyer's office. She further testified that the post-nuptial papers which she signed at her parents' home, at her husband's request, were signed in the presence of her parents and her brothers. The same investigator interviewed Harriet's mother, Mrs. Emma Oswin, who stated, also under oath, that following the marriage ceremony, the plaintiff told her that although he had married Harriet, he did not want to stay married to her; that he did not want anyone to know he had gotten married; and that in less than two months he was getting a divorce.
On July 2, 1958, plaintiff's attorney filed his own affidavit with the Service, sworn to June 30, 1958, stating that plaintiff and his wife had lived together continuously since the marriage; that on May 13, 1958 plaintiff's wife had filed a petition for the issuance of a nonimmigrant visa to the plaintiff; and that the plaintiff had taken steps to obtain an immigrant visa for permanent residence in this country. It appears that the representation made in the attorney's affidavit that plaintiff and Harriet had lived together continuously as husband and wife since the marriage, was false, as was its statement that Form I-133 for the issuance of the nonimmigrant visa, was duly executed by the wife. However, upon the foregoing papers the attorney moved for a reopening and reconsideration of plaintiff's case for the purpose of applying for the privilege of preexamination and voluntary departure, for a hearing, and for a withdrawal of the warrant for deportation dated July 7, 1958. Plaintiff's motion to reopen the deportation proceedings was denied by the Special Inquiry Officer by order dated July 8, 1958, and the warrant for deportation was executed July 16, 1958. Again plaintiff disappeared from official notice until March 16, 1959. During that time interval he had reentered the United States on October 17, 1958, as an alien crewman, secured an annulment of his marriage to Harriet in Arkansas on February 26, 1959, and married Jennie 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, ...