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Belizaro v. Delgado

decided: December 8, 1952.

BELIZARO
v.
ZIMMERMAN. DELGADO V. ZIMMERMAN.



Author: Goodrich

Before MARIS, GOODRICH and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

There are two points raised in these appeals from judgments from the Eastern District of Pennsylvania dismissing petitions for review brought by Delgado and Belizaro respectively.

The first point is the jurisdiction of the court to entertain review proceedings upon an order of deportation when only the district officer and not the Commissioner of Immigration and Naturalization is before the court by personal service. This problem was raised and settled in Paolo v. Garfinkel, 3 Cir., 200 F.2d 280.

The other point raised by the appellant is the constitutionality of the provision in the Supplemental Appropriations Act of 1951, 8 U.S.C. ยง 155a, which exempts deportation proceedings from the requirements of Sections 5, 7 and 8 of the Administrative Procedure Act.*fn1

Appellant says that this violates due process because it eliminates the requirements separating the function of the investigating, hearing and enforcement branches of an agency, so far as exclusion and expulsion of an alien is concerned.

Previous to the statute just mentioned the courts had held that the review system set up in the Administrative Procedure Act applied to deportation proceedings. Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616. Thereafter the Commissioner of Immigration and Naturalization sought additional appropriations from the Congress to cover the expense of the additional examiners necessary to comply with the provisions of the Administrative Procedure Act and the judicial application of it to deportation procedure.*fn2 Congress, however, eliminated deportation proceedings from the requirements of the Act.

Is it unconstitutional to allow the same officer to be an investigating and a hearing official? Desirable or not, such had been the case in many instances up to the time of the Administrative Procedure Act. It may well be that the elimination of these proceedings from the Act is undesirable. But it can hardly be thought to be unconstitutional, for it was a system with which the country lived for a very long time before the changes brought about by the Administrative Procedure Act were adopted. It may be assumed that due process requires notice and opportunity to be heard.*fn3 The petitioner has had this. Furthermore, classifying is constitutional if reasonable. No one could successfully contend at this date that for many purposes aliens may be classified and treated in a manner different from citizens. We think it clear, and other courts have agreed with us,*fn4 that the Congressional action taking deportation proceedings out of the Administrative Procedure Act is constitutional. If they should be back in again, the remedy lies with Congress.

The decision of the district court in each of these cases ...


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