271 F.2d 228 - Williams v. Sahli — 271 F.2d 228

How this case has been cited

Cited by 8 later decisions — most recently February 1982

7 federal appellate ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 *229Goodman, Crockett, Eden & Robb, Detroit, Mich., for appellant.

¶2Charles Gordon, Immg. & Nat’l. Service, St. Paul, Minn., Fred W. Kaess, and John L. Owen, Detroit, Mich., for appel-lee.

¶3Before McALLISTER, Chief Judge, MARTIN, Circuit Judge, and WEICK, District Judge.

¶4PER CURIAM.

¶5An order of deportation was entered against appellant which was affirmed by the Board of Immigration Appeals on August 27, 1954. The District Court upheld appellant’s deportation. Williams v. Butterfield, 145 F.Supp. 567. This Court affirmed. Williams v. Mulcahey, 6 Cir., 1957, 250 F.2d 127. Certiorari was denied by the Supreme Court on April 28, 1958 (356 U.S. 946, 78 S.Ct. 793, 2 L.Ed.2d 821) and rehearing denied on May 26, 1958.

¶6Appellant filed with the Board of Immigration Appeals on January 30, 1958 a motion to reopen the deportation proceedings and on May 9, 1958 filed with the District Director at Detroit a motion to set aside the final order of deportation to permit him to make application for suspension of deportation.

¶7The Board of Immigration Appeals denied appellant’s motion to reopen on May 14, 1958 which was upheld by the District Court and resulted in this appeal.

¶8It was undisputed that appellant did not make application for suspension of deportation to the Board of Immigration Appeals prior to being served with the order of deportation as required by Section 244(a) (5) of the Immigration & Nationality Act of 1952 (8 U.S.C.A. § 1254(a) (5)) and by the regulations issued in pursuance thereof. (8 C.F.R. § 242.16(e) and § 244.2).

¶9The Board pointed out that no useful purpose would be served in reopening the case as the record established appellant’s membership in the Communist Party from 1932 to 1949 and that he, therefore, would be unable to prove that he had not been a member of a subversive organization for ten years preceding his application for suspension of deportation as required by Section 244(a) (5) of the Immigration and Nationality Act (8 U.S.C.A. § 1254(a) (5)). See: Williams v. Mulcahey, 6 Cir., 1957, 253 F.2d 709.

¶10Appellant was not entitled to suspension of his deportation as a matter of right. It was solely within the discretion of the Board. Section 244, Immigration & Nationality Act of 1952, 8 U.S.C.A. § 1254, United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652; Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242.

¶11Appellant has not established to our satisfaction that the Board abused its discretion in refusing to reopen the case.

¶12In view of appellant’s failure to make timely application for suspension *230of deportation as required by law and to establish that the Board acted arbitrarily, the District Court was right in dismissing the complaint. The judgment below is, therefore, affirmed.