Opinion · United States Board of Immigration Appeals

IN THE MATTER OF R----, 4 IN Dec. 173 (BIA 1950)

4 IN Dec. 173

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1950-11-03
Topic
general

IN THE MATTER OF R----, 4 IN Dec. 173 (BIA 1950) IN THE MATTER OF R----. In ADVANCE NINTH PROVISO Proceedings. A-7264328Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board November 3, 1950 Previous arrest and deportation — Ground of inadmissibility under act of 1929 — Whether deportation pursuant to law. It is immaterial whether subsequent judicial interpretation is concerned with the substantive or the adjective phase of the law relating to deportation proceedings, when determining the law of the case which became final at the time of deportation.

Citator

UpLaw has not yet analyzed IN THE MATTER OF R----, 4 IN Dec. 173 (BIA 1950). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF R----,4 IN Dec. 173(BIA 1950)
IN THE MATTER OF R----. In ADVANCE NINTH PROVISO Proceedings.
A-7264328
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board November 3, 1950
Previous arrest and deportation — Ground of inadmissibilityunder act of 1929 — Whether deportation pursuant to law.

It is immaterial whethersubsequentjudicial interpretation is concerned with thesubstantiveor theadjectivephase of the law relating to deportation proceedings, when determining the law of the case which became final at the time of deportation. (See 3 IN Decs. 605, 83, 818.)

INADMISSIBLE:

Act of 1929 — Arrested and deported within 1 year.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion:This case is before us on appeal from a decision of the Acting Assistant Commissioner dated July 27, 1950, denying the request for shore leave privileges under the 9th proviso.

Appellant is a 33-year-old native of the Soviet Union and citizen of Italy by virtue of marriage to an Italian citizen in 1939. She was granted a legal separation from her husband in September 1947. Appellant arrived in the United States in February 1949 as a stewardess on the Polish vessel S.S.Sobieskiand was admitted for a maximum of 29 days as a seaman. Appellant overstayed the authorized period, living in an adulterous relationship with a Polish citizen, illegally in this country, whom she allegedly planned to marry upon receipt of annulment papers from Italy.

On September 9, 1949, the Assistant Commissioner ordered appellant's deportation to Italy on the charge of remaining longer as a seaman. Voluntary departure was denied. This Board dismissed the appeal on November 2, 1949, and refused appellant's request for voluntary departure. Deportation was effected on January 11, 1950.

Counsel asserts that appellant was not deported in pursuance of law. As alternative relief, counsel seeks an exercise of the 9th proviso (sec. 3, act of 1917). Counsel contends that appellant was not deported pursuant to law and, in this connection, distinguishes the rulingsPage 174inU.S. ex rel. Steffnerv.Carmichael,183 F. (2d) 19(C.A. 5, 1950),1andU.S. ex rel. Koehlerv.Corsi,60 F. (2d) 123 (C.C.A. 2, 1932), from the instant case on the ground that only substantive law was involved in those cases. Counsel maintains that a valid deportation cannot occur unless the dictates of the Administrative Procedure Act2are observed throughout the deportation proceeding.

We feel that it is immaterial whether the subsequent judicial interpretation is concerned with the substantive or the adjective phase of the law relating to deportation proceedings. We consider theSteffnercase (supra), as controlling in the instant situation. Therefore, since our decision of November 2, 1949, affirming the outstanding order of deportation, was in accordance with the law as it then existed,3the case is closed and there can be no readjudication at this time.4

Practically speaking, it would be unfortunate and administratively unsound to permit every deportation proceeding determined prior toPage 175February 20, 1950, to be reopened on the ground which counsel for appellant suggests. Operation and enforcement of the immigration laws would be severely impeded, perhaps reduced to chaos. The resulting uncertainty in the law would be most undesirable. (SeeValentiv.Clark,83 F. Supp. 167,168, D.C. 1949.)

Hence, it is determined that appellant has been validly deported and that the order of deportation became final upon execution. Concerning relief under the 9th proviso to section 3 (act of 1917), which counsel seeks in the alternative, we will affirm the action of the Assistant Commissioner in denying this request.Order:It is hereby ordered that the appeal be dismissed.Page 176
  1. Affirming our order inMatter of Steffner,A-9635850 (August 26, 1949) (Int. Dec. #79), and the subsequent court decision in the United States District Court,183 F. (2d) 19(C.A. 5, 1950). Cert. den. October 9, 1950. ↩
  2. Act of June 11, 1946;60 Stat. 237, ch. 324;8 U.S.C. 1001et seq. Cf.Sungv.McGrath,339 U.S. 33,70 S. Ct. 445,94 L. Ed. 383(1950) for the application of this act to deportation proceedings. ↩
  3. The law of the case became fixed at the time of appellant's deportation on January 11, 1950,U.S. ex rel. Koehlerv.Corsi,60 F. (2d) 123(C.C.A. 2, 1932),Matter of R----, A-3844720 (April 29, 1949), (Int. Dec. #40), andMatter ofR----, A-5986220 (April 12, 1949). A mistake of law or a change in interpretation of the law cannot serve as a basis for varying this established law of the case.Matter of M----, A-3083881 (October 14, 1949) (See Int. Dec. #192, Ed. note, p. 3);UnionOil Co.v.Reconstruction Oil Co.,58 Calif. App. 2d 30,135 P. (2d) 621(1943);McGregorv.Provident Trust Co.,119 Fla. 718,162 So. 323(1935);McCracken's Case,251 Mass. 347,146 N.E. 904(1925). ↩
  4. Should appellant's suggestion be followed and a hearing de novo afforded in the present case, the result would be only a relitigation of the original facts and issue, previously determined on the basis of the law as it existed during the prior proceeding. Relitigation of issues, after a change in judicial interpretation, has been denied consistently by courts.Concordia Ins. Co.v.School District,282 U.S. 545(1931);Commonwealthv.Fidelity Columbia Trust Co.,215 S.W. 42(Ky. 1919);Continental Supply Co.v.Abell,24 P. (2d) 133(Mont. 1933);Thompsonv.Louisville Banking Co.,55 S.W. 1080(Ky. 1900);Boltonv.Hey,31 A. 1097(Pa. 1895). See alsoMessingerv.Anderson,225 U.S. 436(1911);Pagev.Arkansas Natural Gas Corp.,53 F. (2d) 27(C.C.A. 8, 1931). There appears to be no reason to vary this rule in the instant situation, for administrative orders must also have final validity which can be relied on in the interest of concluding litigation.In re Ft. Dodge, D.M. S.R. Co.,47 F. Supp. 95(S.D. Iowa, 1942);U.S. ex rel. Steffnerv.Carmichael(supra);Daskaloffv.Zurbrick,103 F. (2d) 579(C.C.A. 6, 1939). Cf.Gen. Motors Acceptance Corp.v.Midwest ChevroletCo.,74 F. (2d) 386(C.C.A. 10, 1934);State of Kansas ex rel.Beckv.Occidental Life Ins. Co.,95 F. (2d) 935(C.C.A. 10, 1938);Western Fire Ins. Co.v.University City,124 F. (2d) 698(C.C.A. 8, 1942);Hagerv.Honover Fire Ins. Co.,64 F. Supp. 949(W.D. Mo., 1945). ↩