United States Ex Rel. Accardi v. Shaughnessy

actions than the father. Inasmuch as the performed requested as considera- the acts promise, giv- of after father son father’s tion for the transfer the father’s are as consistent with up high education and work- ing school ownership son’s, ex- days a week as with the ing seven in his father’s store ception reported father, of the fact that the son p.m., until from a.m. property the income performance from the as his own part of the January in paid thereon, federal income taxes alleged promise, the store to transferred these findings plainly are not erroneous. The the son bill of sale. father Fed.R.Civ.P., Rule 52(a), checking U.S.C.A. same time transferred his bank Also, Much of the evidence in the case consisted accounts in savings son. court, testimony open of performance, of witnesses further father advised position judge trial was in the best president Waipahu Garage Co., credibility determine Ltd., these witness- that all the father’s shares there- Quon Niagara Fire es. Ins. Co. the son were transferred to divi- Y., Cir., N. 190 F.2d 257. As son, was said paid dends thereon to the States Yellow Cab Co.. being shares thereafter transferred to the 177, 179, 94 L.Ed. 150: son. A will the father’s executed four “ * * * years alleged promise, after the which be- the [appellant] has failed queathed prop- devised the father’s any grievance greater to establish here son, erty showing to the was introduced as might than it have in case where part performance part further on the support 1he evidence would a conclu- where, father. way sion either but the trial weigh court has decided to more heavi- The argues ly defendants. Such a choice evidence shows sou was act- permissible between two views of the ing agent, as an for the father in man- weight ‘clearly of evidence is not erro- aging points the real property issue. lie ” neous.’ requested power the fact that the son attorney judgment the father affirmed. rather than deeds property to the question; that the father

had deeded the store and transferred the

savings son, account to the but had not

made such a formal transfer real

property; parcel the additional of real purchased

property the father’s name; purchased that the father had a car for the son and placed title name; the son’s deposition and that the ex rel. ACCARDI UNITED STATES father, speaking power of at- SHAUGHNESSY. torney, returning Japan, stated: “After No. Docket power attorney made a to Slioso Nii * * * dispose properties in Ha- Appeals Court of United States (Emphasis waii.” supplied.) Second Circuit. Argued 2, 3953. June The trial court held that there had been no transfer property of the real Aug. 11, Decided son, involved equi from the father to the otherwise; table promise that the the father to the son giv son’s

ing up high school education was that transferred,

the store would be and this was sale;

done bill of that at no time has

either father or property son treated the

here in belonging issue as to any one other C., Wasserman, Washington, D. Jack City, Radar, Irving New

appellant; York of counsel. Atty., Jr., Lumbard, U. S. Edward J.

n New appellee; City, for York William J. City, Sexton, Atty., New York Asst. U. S. of counsel. FRANK, SWAN, CLARK

Before Judges. Circuit SWAN, Judge. Circuit presents question appeal wheth This Judge refusing erred District er the re of habeas second writ issue a Immigra of the Board of view a decision denied the Appeals which tion suspension deportable of de alien for Im pursuant portation to section amended, 8 U.S. of 1917 as migration Act por relevant 155(c), which C.A. § follows: tion reads * * * “In case of alien ion reviewed the evidence and concluded deportable any law of who is under the statement: “After consideration proved who has of all facts and circumstances in the case, good preced- for moral character applications wc believe that the for re ing years, lief five should be denied matter as a of adminis * * * deportation suspend of trative appel discretion.” Thereafter * * * such if alien he finds that lant custody deportation was taken into for deportation promptly such result in seri- and he would sued out writ of habeas corpus or ous economic detriment to a citizen Judge which -Noonan dismissed spouse, legally May 5, resident alien who is the order entered 1953.2 This order was deporta- parent, appealed.3 minor of May petition child such On 16 for * ”1 * * presented. ble 2issuance alien. of a second writ was Tbis like that on whidl tlie first Petition’ appellant The is an na of Italian alien ouly wrlt attacks denial Board’s lssued’ tivity citizenship and who entered the Unit discretionary charge of The relief. per 1932 ed with intent to States in remain whlch the has been de found aPPellant manently possessing and without an immi ls The case heard admitted. was Portable gration He contin visa. has resided here argument 011 affldavlts and oral without entrv, uously since was married in 1949 to being Judge testimony Clancy re taken. legally residencien, year and has a two Deportation fuscd t0 lssue tbe writ Proceedings old American-born child. stayed been of the determination Pendm£ deportation and, were instituted 1947 refusal, from such aPPe£d deportable hearing, after a he was found charge illegal entry of without an dismissing An order writ of one immigration habeas formally proceedings estop visa. The does not were reopened later suing relator from receive out another on further the same evidence application grounds.4 concerning may properly suspension Nevertheless deportation. given Such discretionary controlling weight if the same grounds was urged denied the hearing May officer in a second The writ.5 appellant 1952. His decision adopted contends was thereafter that the second Acting grounds new Commissioner and was af of attack the ad firmed the Board Immigration Ap suspension ministrative denial of of de peals 3, April portation, namely, opin The 1953. Board’s the Board of Im repealed by discretion, 1. This statute was or clear the Immi failure to exercise gration Nationality 27, Act of Absent June either element this court cannot days 1952, thereafter, effective 180 review the exercise of discretion provisions discretionary (Unit Appeals. the pension as to sus Board of deportation replaced by Shaughnossy ed States ex rel. Adel Act, Cir.], 371.)” [2 section 241 of the 1952 8 183 F.2d U.S.C.A. However, “savings § 1254. clauses” appellant's present ap 3. brief on the The kept Act the later the earlier statute admits that dismissal of Pea^ the first pending proceedings, provid alive for wrlt was correct:- application suspension “An ed that Cor deportation under section 19 Im Salinger 4. 224, 230, v. LoiseI 265 U.S. migration 1917, Act of as amended 519, 989; 44 S.Ct. United States ** * pending which is on the date Thompson, ex rel. McCann v. 2 144 regard of enactment ed as a this Act shall be F.2d 156 A.L.R. certiorari proceeding meaning de 323 nied U.S. . within^the of this subsection.” 8 U.S.C.A. L.Ed.630 § 414, 405(a), note. P.L. 280. § Stat. pending appellant’s The Wong States, Doo v. United 5. Immigration Appeals until the Board of 239, 44 S.Ct. 68 April 3, rendered decision on Thomp United ex rel. McCann v. son, supra; United States ex rel. Kar Judge Noonan’s memorandum decision pathion Jordan, Cir., 153 F.2d8 reads: “A review the record as a whole, certiorari denied 1372, fails demonstrate that there present abuse of discretion 90 L.Ed. 1639. clear curred months after the officer’s Appeals, improperly exercised migration and the Assistant Commissioner’s considered decision (1) because it discretion adoption it, and influ mate could not have confidential information other record, (2) the enced them. discusses rial because outside the record, the evidence in by the prejudged case had been amply support evidence was sufficient to General, aliens simi (3) other because suspension de larly granted discretion denial situated had portation. al As this court said ary grounds were not relief. These is States ex rel. Kaloudis petition. (1) Shaughnessy, leged in the first Ground 11-16, privilege in F.2d an alien ground (2) has no paragraphs 19, inquiring grounds (3) para into the on which the ground paragraph suspension they Attorney petition; General has denied of graphs 9-10 of second the deportation; margin.6 charges, ground These “unless the stated printed in the belief, insufficient, accept face upon he must the information and decision, opposing for it was in the ‘exercise of denied in an affida made categorically discretion,’ incorporated again which we by again have vit also reference which that will There is declared we not review.” In this the record. abso administrative respect the that case at bar is unlike Alexiou v. lutely nothing in that record to indicate any McGrath, D.C.D.C., F.Supp. 421, the where administrative officials considered appeared affirmatively it not Indeed the Oc that evidence thing outside the record. of record the of “unsavory characters” was considered on issue tober 1952 list of suspension deportation. concerning eligibility for press it oc of and the conference Department April band, by 6, 1945, favorable dis- was circulated the 6. “9. That on among employees cretionary herein in Justice con- was' exercised of relief .voluntary departure pre- with nected Service of form Immigration Appeals. examination, my Board husband unable of but Upon belief, advantage “16. information and that of this because take to listing my a visa of of husband’s refused to issue because name on this confidential list and because American Consul ground that had been him on he of matters of of consideration outside convicted a crime immigration hearing, criminal of discre- That aforesaid record his “10. permit may by tionary ground has been the Board of denied be waived adjust immigration my Immigration Appeals in all similar husband to permanent a resident. of to that of has been waived Board status cases Immigration during Appeals. “17. That Hay, 1953, Upon month for reconsidera- “11. information and belief that my Department and such husband’s case recon- tion of Justice maintains a respect my resulted in a reailirmance sideration has of the order of confidential with file hus- deportation herein. band. Upon Upon information and “18. belief that “12. information and belief that 2, 1952, General has issued the press several on or about October the Attor- regard my ney press with hus- releases announced General aat con- during April, planned deport month of band’s case that ference he certain 1953, ‘unsavory and because of the unfavorable so-called characters.’ publicity belief, to this case at in- accorded “13. information and Attorney General, stigation about October possible prepared been to secure fair recon- General list of one hun- rehearing deportation this sideration and matter. dred individuals whoso sought he deny decision to favor- “19. That accordance the announce- pre- press relief herein was able made at his ment October conference judged General on Oc- my Upon belief, when hus- tober he included “14. information and that per- in the one band’s name list of hundred included sons was this list one hundred ‘unsavory my husband, so-called characters’ and since the name Jo- my impossible seph time that it has Accardi. Upon husband secure fair belief, consideration “15. information and his case.” the aforesaid list of one hundred indi- viduals, including the hus- name Cir., arguendo, as we did ex rel. Adel Shaughnessy, assume We Watkins, F.2d 371. The rel. Weddeke facts set United States ex out denied 333 respecting certiorari his criminal record 166 F.2d tenuously explained that his affluence were provided ample justification for denial discre since tionary de- procedure which a relief. Mor does regulations hearing appellant; that the portable differently alien is accorded was treated he suspend deportation, similarly from other application to aliens raise a situated process procedural in the triable issue due of fact. is entitled Determination of is, the re- hearing; weight prior what give of such to a conduct conviction hearing be met.7 of quirements necessarily fair must crime depends upon cir particular a second cumsiances of Nothing case. No two requirements were precisely cases can be suggests appel writ similar. hearing or in the lant in the initial tries to bring scope not observed himself within the officer’s decision .McGrath, of United affiimanee of States ex rel. Knauff v. Immigra- 2 moot, Assistant Commissioner F.2d vacated as “belief,” alleges based The relator 71 95 tion. S.Ct. where subsequently alleged created it practice the existence the was that the uniform aliens, that Board deportation of undesirable defer list in all cases where by Immigration Appeals was influenced a bill of relief was in pending Congress. affirming denying practice this list in the decision There provable the uniform was a suspension. when, that fact. here, It is not such as the al ney prejudged leged General had practice uniform ap relates ap- discretionary by praisement including relief for of the moral reformation of pellant’s deportees. name the October 1952 list convicted substantially only first a reiteration of the Order affirmed. complaint. ground of the Board con- FRANK, Judge Circuit (dissenting). sidered outside record was matters by affidavit, denied opposing I dissent because think the district appears opinion Board’s to corroborate judge refusing testimony, erred in to hear majority such denial. In the of a by relator, offered show that court, the assertion of a mere sus- hearing before the Board was a farce. picion or “belief” that the Board consid- Suppose Supreme Court were secret- require ered other matters did not. the issu- notify ly judges all of inferior federal ance of second enough, writ. Were this courts the future it would reverse every deportable allege, alien would so judgments they all entered if favorable to merely delay justifiable deportation. designated persons. certain Accardi’s wife (in corpus the second petition) habeas as- ground complaint, The third we something serts that here have of that “in all similar cases” Board had sort—but Let worse. us see: exercised its discretion in favor of de portable By aliens regulation,1 convicted of having crime is com valid effect law,2 pletely Suspension Attorney without merit. pro of de General portation discretionary applies is a one matter. In vided who for discretiona exercise permissible ry of its discretion it is relief under the statute shall receive for the Board take hearing into account before the rhe Board earlier Appeals appeal decision, alien’s bad conduct. United from a States ad (b), 150.11(b), 150.13(b), 7. 150.7(a), See also United States rel. ex Giacalone Miller, D.C.S.D.N.Y., esp. F.Supp. 151.2(c), 151.3(e), v. Part §§ 151. 657; 5(e); U ednit ex rel. Bauer v. note infra. Shaughnessy, D.C.S.D.N.Y., F.Supp. e.g., Comingore, See, Boske --; McGranery, D.C.S.D.Cal., Chavez v. 459, 20 Mas F.Supp. 235. trapasqua Shaughnessy, F. (1949 Part.) 999,1001. 1. 8 C.F.R. ed. Pocket 2d §§ themselves nor administrative discretion applicant, the Com verse to compel it, they should An exercise can Acting missioner Commissioner. Attorney where vested the officer exercise regulation provides other Mastra so. deci the discretion failed do General and reverse review Board.2a, F.2d regula pasqua Shaughnessy, supra, 180 These sion made stand, which, they page bind the while tions— Attorney General and his subordinates3 cor- habeas Relator the second think, —mean, Board that decision pus petition pre-hearing decision that the Attorney grant or as to the or the General Accardi’s consisted of inclusion of made un of such not be refusal relief must in a secret whom name list of aliens If it til the Board.4 a..hearing after ex- Attorney must be General decided had that, relator can be shown as the States, pelled from the this secret corpus, petition habeas the second having list been circulated October discretionary the decision adverse to sub- among General’s Attor Accardi’s case was made in- Justice, in the Department ordinates Accardi had General 1952 before Board, cluding the been having since that the 1953), so hearing (in had Board by the approved with reference to Accardi sham, purported but a hearing Board present previous General—all has not appear then it will that discretion Accardi’s administrative regula by the required exercised Relator relief. event, should In that tion. habeas effect, that, argues, in since time granted, a reasonable superior, unless within since was the on the any is made he could reverse made an administrative decision decision relief,5 accordance concerning in his issuance basis Board Board regard to Board regulation obliged without in 1952 of the and secret list Attorney pre-hearing decision in 1953 to refuse discretion exercise its to Shaugh favor,6 Mastrapasqua act compelled in Accardi’s to General. See and considering For evi- nessy, countervailing 180 F.2d 1003-1004. without dence, g., the exercise of e. in the while courts cannot review that Accardi has lived 4. Cf. 6. Pertinent 2a. 5. See note on ney 8 C.F.R. so-called ference were: dred individuals on or seph ment sought included Supp. October sons See, e.g., 8 C.F.R. “12. “15. “13. “14. or about October General General Alexiou Accardi. about October in Upon That Upon Upon that he 2, 1952. (Rev. ‘unsavory characters.’ Bridges 2a, supra. accordance (1949 ed.) allegations this list of one at his prepared announced information and information information name ed. planned McGrath, D.C., whose 1952) information Wixon, press 2, 1952, the Attor- with the §§ a list of one L.Ed. 2103. my § 90.3, deportation he 1.2. deport conference hundred a husband, belief, that belief, presé belief that 90.12; announce- 101 F. certain belief, hun- con- per- Jo- cf. name on of consideration of matters outside tionary my husband to with the Board of was circulated the aforesaid uals, tices of husband to secure fair status able judged Justice because of the record of his tober eral so-called band’s ^[*] his case. “20. “19. That “16. ^[*] has continued the discretionary time including ^[*] husband’s case.” to that of a name Upon among relief when he 1952, this ‘unsavory Immigration Appeals. it has been immigration hearing, discre- predecessor with reference in confidential information and list Attorney listing the list of one adjust decision of one hundred present been denied to relief name characters’ employees permanent impossible policies included Service his consideration of herein was General list and because Department Attorney my my husband, immigration deny favor- belief, connected husband’s and since resident. my and the hundred individ- permit prac- Gen- hus- pre- Oc- my pre- Attorney tions as years, for 21 husband General’s judgment a “on belief.” lawful resident of the are information and United States two-year-old and the father a American- “nice, agree. Respondent’s cannot Respondent, born child. traverse sharp quillets of the law” should not take court, the district denied the of us in. There is a no doctrine that court pro- prejudgment. But relator’s counsel go an rec- never outside such official posed prove district the con- court ord to discover whether an official himself trary by evidence to adduced in court. be unlawfully acted on matters outside proposed prove, specific He record. Having served for considerable corpus petition facts in the habeas period officer, as I am an administrative concerning prejudg- General’s fairly callous to of men who de- the cries ment, but also that former coun- Accardi’s power-hungry nounce all such officers as Commissioner, sel had been told bureaucrats, unusually perhaps I am thing” “We can’t do case Accardi’s danger workings aware of the to the “because the General has his government if any administrative officer name on that judge list.” Yet the district court, trial, could dragged into to stand any testimony, e., refused to hear i. refused suspicion on a mere impropriety behind to conduct a trial to determine whether However, the scenes. there would be allegations respondent’s relator’s denials greater danger to government democratic were true. judicial acceptance every administra- tive invulnerable, as final record no Obviously, we would reverse if the Board grave matter how and serious charges deny had said: “We against the official. already because the decided, previous ordinarily While court must confine relief, record,8 itself to that Accardi is not the administrative to receive there exceptions. ques- relief.” judgment, the crucial Even So a court’s judicial tion here is whether valid so right relator had far goes, record prove, by record, years will he evidence vacated outside later the that if it be then proved, by entirely in truth ground such was evidence beyond the the the My accept- record, Board’s colleagues, action. bounds the pro- to have been view, bribery ing judge’s cured judge. district take this Refining Root position: Co., Co. Even if it is v. Universal a fact that Accardi’s Products Oil pre- unlawfully ap- for relief was F.2d 514. And the same doctrine plies judged by Attorney judgment if the General so that the resulted from what hearing pure pretense, judge’s amounts to a was a never- decision of a case pay any began.9 theless no court can before Ours attention to would be a Because, sorry legal Why? system my completely that fact. col- if it so shielded maintain, (1) from attack a leagues judge’s the record of the ad- or other official’s hearing simply order ministrative and the because revealing the facts Attorney illegality Board contain no reference to are not in the officialrecord on list, and, face, purports which the General’s on their order disclose to To rest. con- nothing immunity fer such irregularity; (2) to indicate would be to make legali- ty power go lack ritualism, the courts behind matter sheer to such an of mere out- record; allega- way administrative ward looks. (3) tyranny. relator’s lies counsel, 1429; 7. Relator’s of the Chi cago, petition, Babcock, said understood “that Q. he former B. & R. Co. v. spoke in this case to the counsel Com- U.S. 27 S.Ct. 51 L. Fayerweather him, Ritch, told missioner the Commissioner Ed. 195 U. thing your 276, 306-307, do ‘We can’t case because S. Attorney his name ” of a hundred.’ that list Coleman, Cir., Schwab v. See 145 F. Morgan, 8. United States v. 2d 156 A.L.R. 355. only proof Not she offer is did say “there ab My colleagues that secret, official docu- General’s list —a indicate solutely nothing in the record to evidentiary significance ment of marked considered the administrative officials that to tending strongly show that the But anything outside the record.” case, stripped of discre- General had the Board Refining true in the Root same was also offered obviously as to tion in Accardi’s case—but she silent the record e., L prove to of Immi- brought that Commissioner which bribery judge gration that necessarily had counsel that said Accardi’s decision, since about purpose includ- respect the such was and effect of like that was a secret fact —in ing. name in that Moreover, relief Accardi’s list. list. General’s judi inherently involves by habeas Finally, disagree colleagues I sup not in record on facts cial reliance they say paid when that no attention be cor which habeas porting judgment prejudgment to the of secret collaterally pus attacks.9a is General because it made course, an official’s de- an attack on Of Surely information belief. we would cision, evi- by recourse to off-the-record not refuse act in case like Root Refin dence, allegations if not allowed sufficiently specific ing charge on a well- more than Legality should be vague: case, judge had to decide bribed peering work, paper but allowable ordered facts, merely necessarily not because the limits. paper facade behind knowledge within the first-hand submit compel official to may not an One charging, so on such in stated party search interrogation courtroom variety In a cir formation and belief. behavior, concealed, possible unlawful cumstances, it has an been held strik- brings first forward some unless one here, where, as allegation suffices consequence, well- As a traces of it. ing affiant’s serted facts are thus not within judicial may escape misconduct concealed personal I knowledge.10® think the dis pay price we is the correction.10 That rela to afford trict court should be directed having governmental action avoid facts, just opportunity prove those tor an mercy anyone mere sus- who voices Supreme Refining as in Root case the instance, open up judg- For picions. charge ordered a trial of movant’s Court case, Refining it would in the Root ment inti bribery11 I do for a moment not more, allege, without not have sufficed true; I allegations are that relator’s mate must bribed.” There judge “The ought we now assume urge specific prove offer facts which will think, an do, they will not are false. It plainly impugn pretty the official record. ad enough that the outside to hold cup is clean.12 ministrative requirement: here satisfied that Relator 948-949; Creckmore United Dempsey, 261 43 F. 9a. Moore v. U.S. See States, Cir., 237 743. F. 543. S.Ct. Re See, e.g., Co. v. Root 11. Products Havana Universal Oil Broadcast Music v. 10. fining Co., Corp., Cir., S.Ct. Madrid 175 F. Restaurant 1447. 90 L.Ed. 80. 2d ye e.g., Berger States, the outside of See, make clean “For 10a. they cup platter, within full 22, 34-35, but Kelly States, and excess.” Matt. extortion v. United

Case Details

Case Name: United States Ex Rel. Accardi v. Shaughnessy

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 11, 1953

Citation: 206 F.2d 897

Docket Number: 22750_1

Court Abbreviation: 2d Cir.