DOMBROVSKIS v. ESPERDY

DIMOCK, District Judge.

In this action for a declaratory judgment defendant moves under Rule 12(c) of the Federal Rules of Civil Procedure for dismissal of plaintiffs' claim, denominated the "First Cause of Action" and which I shall hereinafter refer to as the "first claim", on the grounds that (1) there is no longer an "actual controversy" between the parties with respect thereto as required by the Declaratory Judgments Act, 62 Stat. 964, as amended, 28 U.S.C. § 2201, and (2) plaintiffs have failed to join an indispensable party, the Secretary of State. Since affidavits and exhibits have been submitted by the parties, the motion will be treated as one for summary judgment under Rule 56.

Defendant moves also for summary judgment under Rule 56 with respect to plaintiffs' "Second Cause of Action", which I shall hereinafter refer to as the "second claim", on the grounds that (1) there is no genuine issue as to any material fact, and (2) defendant is entitled to judgment as a matter of law.

Unless I deny defendant's motions, plaintiffs cross-move, pursuant to Rule 56(f), for an order postponing and continuing the hearing of defendant's motions until such time as plaintiffs may have taken the depositions of certain persons, named and unnamed.

The affidavits and exhibits show that plaintiffs are alien seamen, nationals of Yugoslavia or Latvia, who reside in this country and are admittedly deportable as illegal entrants or as temporary entrants who overstayed the period allowed them for shore leave. Subsequent to the enactment of section 15(a) (3) of the Act of September 11, 1957, 71 Stat. 643, plaintiffs filed applications with the Immigration and Naturalization Service for adjustment of their status from nonimmigrants to permanent-resident immigrants under section 245 of the Immigration and Nationality Act, 66 Stat. 217, 8 U.S.C. § 1255 (later amended by 72 Stat. 699), or for pre-examination to determine their admissibility as immigrants under part 235a of Title 8, Code of Federal Regulations. A prerequisite to the granting of either adjustment of status or pre-examination was the availability of an immigrant visa.1 Part 235a was revoked on August 12, 1959, 24 Fed.Reg. 6477.

Defendant says, without contradiction by plaintiffs, that the immigration quotas to which each of the plaintiffs belong were and continue to be oversubscribed and that their eligibility for adjustment of status thus depends on the availability of non-quota visas. Section 15(a) (3) of the Act of September 11, 1957 provides for the allotment and issuance, by consular officers of the Department of State, of special non-quota immigrant visas to aliens who are refugee-escapees as defined in subsection (c) (1) of section 15. The administration of section 15 is handled by the Office of Refugee and Migration Affairs, Department of State, hereinafter ORMA. Plaintiffs, therefore, submitted applications to defendant, for transmittal to ORMA, for the issuance of refugee-escapee visas. At the time that, or shortly after, plaintiffs submitted their applications for visas to defendant, the regulations of the Immigration and Naturalization Service drawn under the said section 245 of the Immigration and Nationality Act provided:

Inasmuch as none of the plaintiffs had entered the United States as a "nonimmigrant visitor or student" defendant did not then forward their applications to ORMA even though there was no justification in section 15 for the provision in section 245.1 of the Regulations which limited the class eligible for refugee-escapee visas to aliens who had been admitted as nonimmigrant visitors or students. Plaintiffs thereupon instituted this action then containing only the first claim which sought a declaratory judgment establishing that defendant's denial of their right to apply for refugee-escapee visas was illegal and unconstitutional and that plaintiffs were "eligible for such visas and should be permitted to establish their eligibility for a visa under Section 15 on the merits in the same manner permitted other refugees, not similarly discriminated against." Plaintiffs' motion for an injunction staying deportation pendente lite was granted on consent of defendant.

Sometime thereafter defendant was advised by the United States Attorney for this District that the limitation in section 245.1 of the Regulations was untenable. Defendant thereupon forwarded plaintiffs' applications to ORMA. The applications of three of the plaintiffs were approved by ORMA. The applications of the remaining plaintiffs were denied on the ostensible ground that they had not proved, as required by section 15, that they had fled from Yugoslavia or Latvia because of persecution or for fear of persecution on account of race, religion or political opinion.

On May 1, 1959, the limitation was formally eliminated from section 245.1 of the Regulations so that it read:

Plaintiffs thereupon made motions for reconsideration which were denied. In July 1959 plaintiffs, with leave of court, amended their complaint so that it now asks for a judgment declaring with respect to the first claim:

Defendant has no power to issue "refugee-escapee" visas. That is in the hands of the State Department. Wen Cheuk v. Esperdy, D.C.S.D.N.Y., 178 F.Supp. 787. Plaintiffs have therefore abandoned the above-quoted demands for declarations insofar as they involved the State Department and asked "for an examination of the question whether the applications were considered on the merits or whether defendant's eligibility standards precluded evaluation on the merits on part of another governmental agency."

Plaintiff's claim is that the Regulation's attempted limitation of the benefits of section 15 to nonimmigrant visitors and students was the result of a determination by the Attorney General which was embodied in a direction by the Attorney General to the State Department and that, in spite of the change in the Regulation and in spite of the issuance of visas to three crewmen, the direction was the real basis for the denial of visas to the rest. No matter what the basis for the denial of the visas, that denial may be reviewed by a proceeding brought against the Secretary of State. Plaintiffs here, instead of thus attacking the State Department's refusal of the visas directly, ask, in substance, for a declaration that the alleged action of the Attorney General was the real basis for the State Department's refusal.2 It is doubtful, to say the least, whether such a declaration made in a suit where the only party defendant was a subordinate of the Attorney General would bind the Attorney General, cf. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, but it is certain that it would not bind the Secretary of State. Johnson v. Interstate Transit Lines, 10 Cir., 163 F.2d 125, 172 A.L.R. 1242. The declaration would thus be a useless thing. Whether or not there is a technical basis for such a declaration, in the exercise of discretion, I refuse to entertain the application. The first claim is dismissed.

Plaintiffs' second claim alleges that applications which they made to the Attorney General for the withholding of deportation because they feared physical persecution, under section 243(h) of the Immigration and Naturalization Act, 66 Stat. 212, 8 U.S.C. § 1253(h), were denied sometime between March and May 1959 not on their merits as they purported to be but actually because the applicants were crewmen. They ask for the following declarations:

As above stated, a temporary injunction has been issued on consent.

There is no occasion for the elaborate set of declarations requested. For instance Request C is a loaded question. Defendant strenuously denies that the reason for the denial of the applications for stays was that plaintiffs entered the United States as nonimmigrant seamen. That is no reason, however, why the claim should not be treated as the ordinary application for a declaratory judgment that certain action of the Attorney General in directing deportation was unlawful and for an injunction. See Ceballos v. Shaughnessy, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed.2d 583. Plaintiffs are not bound by their prayers for relief even where declaratory judgments are concerned. Cohen v. Randall, 2 Cir., 137 F.2d 441, certiorari denied 320 U.S. 796, 64 S.Ct. 263, 88 L.Ed. 480. No party other than the District Director of the Immigration and Naturalization Service is necessary where it is he who would carry out the order of the Attorney General. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, supra.

Treating, therefore, the second claim as an application for a declaratory judgment that the Attorney General's refusal of a stay was unlawful and for an injunction, I pass to defendant's motion for summary judgment dismissing it.

Plaintiffs charge here, as they did in support of their first claim, that defendant and his superior, the Attorney General, had a definite policy which controlled their decisions and the decisions of the State Department in the cases of crewmen. So far as the first claim is concerned we have the change in section 245.1 of the Regulations which officially removed the declaration of the Immigration and Naturalization Service that only nonimmigrant visitors and students were entitled to the benefits conferrable under section 15. That regulation as changed, however, not only had no direct application to petitions made under section 243 (h) to the Attorney General with which the second claim is concerned but was not in existence when the decisions denying the petitions were made. Thus there is no such strong record of official intention to include crewmen in the benefits of section 243(h) as there is in the case of benefits under section 15.

Plaintiffs in evident good faith make the serious charge that the decisions of the Attorney General were based upon an ulterior influence rather than the ostensible record. They wish to support this charge with evidence. If they can support it they are entitled to an injunction against the enforcement of the decisions. See Radio Corp. of America v. United States, D.C.N.D.Ill.E.D., 95 F.Supp. 660, 668, affirmed 341 U.S. 412, 71 S.Ct. 806, 95 L.Ed. 1062.

Defendant says that there are no genuine fact issues in the second claim. He says that the administrative records of plaintiffs who applied for the withholding of deportation, which defendant has submitted on this motion, are too specific to be met by the mere "hypothesis and speculation" which plaintiffs offer in answer. Plaintiffs argue that the records are irrelevant unless compared with the records of applicants who were not crewmen and that plaintiffs are unable to submit affidavits in opposition to defendant's motion because "the facts necessary for plaintiffs' case are contained in the general records of the defendant and known to a limited number of officers of the Immigration and Naturalization Service."

Plaintiffs' contention that the records are irrelevant is without foundation. The records of the plaintiffs who applied for withholding of deportation and have not withdrawn their applications or asked that they be held in abeyance3 reveal that an officer of the Immigration and Naturalization Service conducted an examination of each applicant and filed a "Memorandum and Recommendation of Special Inquiry Officer". In all but one of the cases which have been acted upon by the Regional Commissioner of the Immigration and Naturalization Service, the Special Inquiry Officer wrote out findings and conclusions and recommended denial of the application, and the Regional Commissioner stated that "upon consideration of the entire record" the application was denied. In the one remaining case, that of Giovanni Stroligo, the Special Inquiry Officer recommended granting the application, but the Regional Commissioner ordered denial and detailed his reasons for so doing. The contents of these records have a clear tendency to show that the applications were determined on the merits. Each applicant's claim of physical persecution was thoroughly discussed and evaluated by the Special Inquiry Officer in his statement of findings and conclusions and also by the Regional Commissioner in the case of Giovanni Stroligo. The fact that the applicant was a crewman was mentioned in each "Memorandum" but there is not the slightest indication that the applicant was discriminated against because of that fact. A shadowy inference that the Special Inquiry Officer who prepared the "Memorandum" in the case of Ante Spaleta was perhaps influenced in his decision by the manner in which Spaleta had entered the United States might be drawn from the statement in his "Memorandum" that Spaleta had "entered the United States in deliberate evasion of the immigration laws of the United States". Whatever this inference is worth, however, it would go only to the question of whether the legality of his entry was considered and would not be probative of the claim that his application was denied because of his occupation as a crewman.

Plaintiffs claim, however, that, if they are permitted to take the depositions of the Commissioner of Immigration and Naturalization or a deputy designated by him, of defendant or a deputy designated by him, and of other persons whose identity is still to be determined, they can obtain evidence to support their claims. Knowledge of the facts may, as plaintiffs claim, be exclusively or largely under the control of defendant and, until plaintiffs have had an examination of defendant and/or those closely associated with him, I do not wish to foreclose the possibility of their establishing their claims. See Peter Pan Fabrics, Inc. & Henry Glass & Co. v. Dixon Textile Corporation, 2 Cir., 280 F.2d 800. I therefore grant plaintiffs' cross-motion, pursuant to Rule 56(f), for an opportunity to take depositions on condition that plaintiffs complete the discovery requested in their "Notice of Motion Under Rule 56(f), F.R.Civ.P." within 90 days after the appearance of a note of this decision in the New York Law Journal. Otherwise the cross-motion is denied and defendant's motion directed to the second claim is granted.

Defendant argues that plaintiffs' cross-motion should not be allowed "without the sanction of Rule 56(g) and 28 United States Code, Section 1927". The text of these provisions is set out in the margin.4 If defendant means that these sanctions should be made available to him so that he may seek to have them applied, my assistance is not needed since by the rule and statute they already are available. If he is asking that I apply the sanctions, I am not persuaded that they should be applied at this moment, and whether they should be applied later must abide the event.

Settle order on notice.