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MARCELLO v. AG OF THE UNITED STATES

September 27, 1972

Carlos MARCELLO, Plaintiff,
v.
The ATTORNEY GENERAL OF the UNITED STATES, Defendant


Richey, District Judge.


The opinion of the court was delivered by: RICHEY

I. Facts

 This cause came before the Court on August 18, 1972, on the defendant's Motion to Dismiss or in the alternative for Summary Judgment, said Motion having been filed in response to plaintiff's Complaint for a Declaratory Judgment to set aside and declare invalid a request by the defendant that the plaintiff execute an Italian passport application.

 Briefly, the facts giving rise to the instant Complaint are these. Plaintiff Carlos Marcello was born in Tunis, North Africa of Italian parents on February 6, 1910. While an infant he was brought by his parents to the United States. He never became a citizen of this country. On June 1, 1953, the Board of Immigration Appeals ordered that the plaintiff be deported from the United States under § 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11), on the ground that he had been convicted in 1938 of a violation of law relating to illicit traffic in marijuana. This order was upheld by the Supreme Court in Marcello v. Bonds, 349 U.S. 302, 75 S. Ct. 757, 99 L. Ed. 1107 (1955).

 The Immigration and Naturalization Service (INS) obtained a travel document from the Italian Consulate on November 5, 1956. This document, which was valid until November 7, 1956, was not revalidated after that date because Marcello obtained an injunction from the Tribunal of Rome against the issuance of any Italian travel document pending the outcome of a civil action which he had instituted in November of 1956, in Rome, seeking a declaration that he was not an Italian citizen and opposing the issuance of a travel document to enforce his repatriation.

 The plaintiff was able to remain in the United States until 1961, when the INS came into possession of what purported to be a birth certificate indicating that the plaintiff was a citizen of Guatemala. In April 1961 he was deported to Guatemala upon a determination by defendant that he was a citizen of Guatemala. In May 1961, the plaintiff reentered the United States without the permission of the United States Government. A new deportation proceeding was brought against him by the INS and on December 20, 1961, the Board of Immigration Appeals ordered that he be deported on the grounds that he was excludable at the time of his 1961 reentry, 8 U.S.C. § 1251(a)(1), and that he was convicted of a law governing the taxing of marijuana, 8 U.S.C. § 1251(a)(11). Defendant's Exh. "A".

 This deportation order of December, 1961 could not be executed because of the Italian litigation which was still pending in Rome. On December 1, 1966, the Civil Tribunal of Rome rendered judgment rejecting Marcello's contention that he was not a citizen of Italy. It further declared that the travel document issued by the Italian Consulate on October 31, 1956 was illegal, but did not specifically preclude the issuance of a travel document on Marcello's behalf in some other manner. Plaintiff's Exhibit "P-13." The defendant states in his pleadings that in September 1971, the United States Embassy in Rome was informed by the Italian Government that it would consider granting a passport to the plaintiff if he filed an application for an Italian passport.

 By letter dated January 21, 1972, the District Director of the INS at New Orleans, Louisiana requested the plaintiff to appear at his office on January 31, 1972, to execute an application for an Italian passport. Plaintiff's appearance was later postponed until February 4, 1972, at which time he appeared and refused to execute the application. Plaintiff was given another opportunity to appear on February 22, 1972, but by a letter sent through his attorney refused to do so, because of the reasons set forth in the instant Complaint. Defendant's Exhibit "B".

 On February 4, 1972, the Board of Immigration Appeals granted the plaintiff's application to reopen his deportation hearing to give him the opportunity to file an application under 8 U.S.C. § 1254(a)(2) for suspension of his deportation. At the same time, however, the Board denied his request for a stay of deportation pending the outcome of the reopened hearing, and declined to withdraw the outstanding order of deportation. The Board found that since the result of an application for suspension of deportation cannot be predicted, an order reopening deportation proceedings only provides for the withdrawal of an outstanding order in the event that the application for suspension is granted. Defendant's Exhibit "C".

 II. Issues and Contentions Presented

 a. In his present Complaint, the plaintiff seeks a judgment declaring that the request of the defendant that plaintiff sign an Italian passport application is premature, untimely, arbitrary and contrary to law. He bases his demand for a declaratory judgment on the grounds that the requirement of 8 U.S.C. § 1252(e) that an alien make timely application for travel documents is operative only in the face of a valid and final order of deportation, and that in view of the circumstances leading to the deportation order of 1961 and the presently reopened hearings for suspension of deportation, the 1961 deportation order is neither a valid nor a final order of deportation outstanding against him. *fn1" Plaintiff further contends that both the passport application which he has been requested to sign and Italian law require the written consent of the plaintiff's wife. It further provides for plaintiff to make a declaration that he is not under pending criminal proceedings, *fn2" neither of which requirements plaintiff is presently able to fulfill. *fn3"

 b. The defendant, in his Motion to Dismiss or in the alternative for Summary Judgment, contends that the only issue involved in this action is whether the Attorney General, acting through the District Director of the INS in New Orleans, has abused his discretionary authority in requesting the plaintiff to execute an application for an Italian passport at this time.

 III. Discussion

 It is clear that the Attorney General as the person charged with the administration of the immigration laws has broad discretion in implementing the policies of the Act he administers. Royalton College, Inc. v. Clark, 295 F. Supp. 365, 370 (D.C.D. Vt. 1969). In requesting the plaintiff's cooperation in executing the Italian passport application, the Attorney General has exercised his discretion, and this Court must be reluctant to interfere with his decision unless a ...


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