Justia Federal District Court Opinions

Blanch Freedman and Gloria Agrin, New York City, for plaintiff-appellant.

Paul W. Williams, New York City (Harold J. Raby and Maurice N. Nessen, New York City, of counsel), for defendant-appellee.

Before MEDINA, HINCKS and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

Plaintiff, an alien, seeks inter alia a declaratory judgment that he is not ineligible for naturalization under 8 U.S.C.A. § 155(c)¹and, in effect, a stay of deportation until the Attorney General exercises his discretion with respect to plaintiff's application for suspension of deportation. The complaint, brought against the District Director of Immigration, was dismissed below on the procedural ground that the Attorney General or the Commissioner of Immigration and Naturalization was an indispensable party.

Judge Kaufman followed and elaborated upon the distinction we made in Pedreiro v. Shaughnessy, 2 Cir., 213 F.2d 768, affirmed 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, between a challenge to deportability, as in Pedreiro, and a claim that, notwithstanding deportability, the Attorney General should exercise his discretion in favor of the issuance of an order suspending deportation, as in De Pinho Vaz v. Shaughnessy, 2 Cir., 208 F.2d 70, and in the case now before us. Although the question is not free from doubt, we shall follow our reasoning in Vaz and more fully stated in the opinion below. While the Supreme Court may decide that the distinction no longer holds, we do not think this is to be spelled out of Mr. Justice Black's opinion in Pedreiro.