202 F2d 807 Caddeo v. McGranery

202 F.2d 807



McGRANERY, Attorney General, et al.

No. 11374.

United States Court of Appeals District of Columbia Circuit.

Argued November 4, 1952.

Decided January 15, 1953.

Josephus C. Trimble, with whom William J. Byrne, Washington, D. C., was on the brief, for appellant.

Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., with whom Charles M. Irelan, U. S. Atty., and Ross O'Donoghue, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellees.

William E. Kirk, Jr., Asst. U. S. Atty., Washington, D. C., also entered an appearance in behalf of the appellees.

Before CLARK, PRETTYMAN and PROCTOR, Circuit Judges.

PROCTOR, Circuit Judge.

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Appellant sought declaratory and injunctive relief in the District Court. His complaint alleged that he was a national of Italy, of good moral character, who lawfully entered the United States in 1927, remained more than seven years until 1935, then left under an order of voluntary departure, lawfully entered again in July, 1947, and ever since has resided in this country. The complainant further alleged that upon the basis of the foregoing facts he applied to the immigration authorities to suspend an order of deportation, which had been issued against him, basing the application upon § 19(c) of the Immigration Act of 1917, c. 29, 39 Stat. 889, as amended July 1, 1948, c. 783, 62 Stat. 1206, 8 U.S. C.A. § 155(c). The pertinent provisions of the Act are:


"In the case of any alien * * * who is deportable * * * and who has proved good moral character * * * the Attorney General may * * * suspend deportation of such alien if he is not ineligible for naturalization * * * if he finds * * * (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon July 1, 1948. * * *"


Caddeo also alleged that the application was denied, although his good moral character, his seven years continuous residence in the United States and his residence therein on July 1, 1948, the effective date of said Act, were admitted. Upon this state of facts he contended in the District Court, as he does here, that he is entitled under the statute to the suspension order; that the appellees had no authority to refuse it. However, the District Court granted a motion to dismiss the complaint for failure to state a cause of action. This, we think, was correct, in view of the absence of any allegation that discretion was not exercised or had been abused. For we have no doubt that the authority to grant suspension is discretionary. In reaching our decision, we have assumed, without deciding, that Caddeo's seven years uninterrupted residence in this country until 1935 met the statutory requirement for continuous residence.1


We note that there was also before the court an alternative motion for summary judgment, supported by undisputed allegations of fact indicating that refusal to suspend the deportation order was the result of judgment and discretion based upon material facts in addition to those recited in the complaint.




1. This was Caddeo's contention, in support of which he relies on de Koning v. Zimmerman, D.C. E.D.Pa.1950, 89 F. Supp. 891.