Basilio Fugiani v. Bruce G. Barber, District Director Immigration and Naturalization Service, San Francisco, California

261 F.2d 709 Basilio FUGIANI, Appellant, v. Bruce G. BARBER, District Director Immigration and Naturalization Service, San Francisco, California, Appellee. No. 15162. United States Court of Appeals Ninth Circuit. July 11, 1958. Jackson & Hertogs, San Francisco, Cal., for appellant. Lloyd H. Burke, U.S Atty., Charles Elmer Collett, Asst. U.S. Atty., San Francisco, Cal., for appellee. Before BONE, POPE and FEE, Circuit Judges. BONE, Circuit Judge. 1 Fugiani appeals from an order of the District Court dismissing his petition for review. Appellant is a native and citizen of Italy. He was admitted at New York to the United States as a non-immigrant (visitor) under Section 3(2) of the Immigration Act of 1924. * On March 28, 1950, appellant married a citizen of the United States. On June 25, 1951, a warrant of arrest was issued charging that appellant was in the United States in violation of law in that after his admission as a visitor he had remained in the United States for a longer time than permitted under the law /1/ or regulations made the thereunder. 2 A hearing was conducted on September 23, 1952, before a Special Inquiry Officer attached to the San Francisco district office…

Fugiani appeals from an order of the District Court dismissing his petition for review. Appellant is a native and citizen of Italy. He was admitted at New York to the United States as a non-immigrant (visitor) under Section 3(2) of the Immigration Act of 1924. * On March 28, 1950, appellant married a citizen of the United States. On June 25, 1951, a warrant of arrest was issued charging that appellant was in the United States in violation of law in that after his admission as a visitor he had remained in the United States for a longer time than permitted under the law 1 or regulations made thereunder.

A hearing was conducted on September 23, 1952, before a Special Inquiry Officer attached to the San Francisco district office of the Immigration and Naturalization Service. Appellant applied for suspension of deportation and, as an alternative form of relief, voluntary departure from the United States. At the conclusion of the hearing the Special Inquiry Officer found appellant *710 eligible for voluntary departure from the United States. 2

On September 24, 1952, the hearing was reopened and the Special Inquiry Officer entered an order granting the appellant the additional…

(concurring).

There is too much ado about this foreigner who deliberately injected himself into this country in conscious violation of our law, married within a month, apparently to fend off deportation, and has maintained himself here in defiance of our government for almost five years.

Admittedly, he has been subject to lawful deportation during all this time, and is now. He has been consistently accorded due process of law. At his deportation hearing, the basis was found unquestioned for immediate action. He was granted suspension for a limited period in order to permit him to depart voluntarily 1 and to have pre-examination for readmission. 2 He has not departed voluntarily, and the time so limited, with all extensions, expired on July 20, 1953.

The reason Fugiani has not voluntarily departed in order to obtain permanent residence here is that, if he should leave, he could not get back. Pre-examination has not been had because a condition precedent to pre-examination is that he “has received from the consular officer written assurance * * * that a visa will be prompty available.” 3 It is perfectly clear that the United States Consul at Vancouver, British Columbia, Canada,…

(dissenting).

I do not see how this decision can stand in the face of McGrath v. Kristensen, 340 U.S. 162, 169-171 , 71 S.Ct. 224, 226 , 95 L.Ed. 173 . I think the majority opinion fails to note just what it was that the Special Inquiry Officer and the Board of Immigration Appeals determined. The Special Inquiry Officer never got around to consider whether the discretionary power would or would not be exercised. Rather, his decision was that appellant was ineligible for suspension or voluntary departure, as a person not of good moral character. The Special Inquiry Officer’s formal findings, labeled as such, refer to nothing but appellant’s deportability. They do not even mention discretionary relief. If those findings were the only ones made here the decision would have to be set aside for failure to pass upon the question before the Special Inquiry Officer, namely, whether suspension or voluntary departure should be granted. To make the officer’s decision meaningful, it must be read as a whole, including the opinion, where he said: “In view of all the facts and circumstances, I can only conclude that the respondent is wholly ineligible for any type of discretionary relief and…