discretion through the Courts. It is quite another thing to seek relief from the Courts where it is clear from the record itself that a fair hearing was not obtained.
Once the Attorney General has established the procedure affording an opportunity for a fair hearing as has been done here, then I do not believe his discretion can be exercised arbitrarily or capriciously in complete disregard of what appears on the record. These proceedings were infected with unfairness by a consideration of matters outside the record. Any action based on such an unfair hearing is a nullity. If that were not so then we would be injecting into our own system of government the very principles of totalitarianism which we are today struggling to strike down.
I shall not attempt to harmonize the decisions on the matter of interference with the Attorney General's discretion in a case such as this. In some cases one might conclude from the language that the Attorney General's action is not reviewable. Von Kleczkowski v. Watkins, supra, United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489. And yet even in these cases relied upon by the government, and which I believe to be distinguishable on the facts, there is the hint that the conclusion might have been different in the event of an unfair hearing. For example, in the Von Kleczkowski case the Court, inter alia, said (71 F.Supp. 436): '* * * in the case at bar both the examining inspector and the Board of Immigration Appeals had recommended the denial of discretionary relief without recourse to the Tilly report. One would have to be unduly naive to suppose that, without that report, the denial of discretionary relief was not supported by the record.' Likewise in the Kaloudis case the Court stated in 180 F.2d on page 490 of the opinion: '* * * if the relator has the privilege of inquiring into the grounds (of the Attorney General's decision), he has been wronged, and the writ (of habeas corpus) should have gone. An alien has no such privilege; unless the ground stated is on its face insufficient, he must accept the decision * * *.' Other authorities either hold or imply that the Attorney General's exercise of discretion may be reviewed. United States ex rel. Adel v. Shaughnessy, 2 Cir., 1950, 183 F.2d 371; Matrapasqua v. Shaughnessy, 2 Cir., 1950, 180 F.2d 999; Vergas v. Shaughnessy, D.C.N.Y. 1951, 97 F.Supp. 335.
There is ample authority sustaining the necessity of a fair hearing. Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103; Whitfield v. Hanges, 8 Cir., 222 F. 745; United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S. Ct. 302, 71 L. Ed. 560; U.S. ex rel. Castro-Louzan v. Zimmerman, D.C., 94 F.Supp. 22. See also U.S. ex rel. Salvetti v. Reimer, 2 Cir., 103 F.2d 777; Japanese Immigrant case (Yamataya v. Fisher), 189 U.S. 86, 23 S. Ct. 611, 47 L. Ed. 721. In the Weddeke case, supra, the Court said at page 371 of 166 F.2d; 'Since the regulations of the Attorney General have set up a quasi-judicial procedure for the determination of issues bearing on the propriety of exercising his power to suspend deportation under 8 U.S.C.A. § 155(c), we assume that the alien is entitled to procedural due process in the conduct of such hearing, and we assume further that, if the Immigration Service issues a warrant of deportation without according the alien such procedural due process, the warrant can be challenged on this ground in habeas corpus proceedings.'
The government contends that because it conceded eligibility for suspension of deportation at the time of trial the Court is confined to the narrow issue whether the exercise of discretion by the Attorney General can be challenged. I do not feel that one can thus insulate the eligibility phase of the hearing from the charge of unfairness. The hearing on eligibility for suspension is tainted, ab initio, with unfairness, because evidence not of record was considered. But for that evidence it is wholly speculative whether the requisite finding would have been made. See Bridges v. Wixon, supra. The charge of lack of due process cannot be avoided by a subsequent attempt at compartmentalization. For the reason, therefore, that a fair hearing was not accorded plaintiff on the issue of eligibility for suspension of deportation, I feel that she is entitled to have the case remanded to the Immigration and Naturalization Service for a decision on the evidence on the record alone. Further evidence may be adduced by either party bearing on the issue.
Findings of fact and conclusions of law may be drawn in conformity herewith.
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