282 F2d 877 Petrovic v. L Pilliod

282 F.2d 877

Borislav PETROVIC, Plaintiff-Appellant,
Alva L. PILLIOD, Chicago District Director of Immigration and Naturalization, Defendant-Appellee.

No. 12982.

United States Court of Appeals Seventh Circuit.

October 14, 1960.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division; Michael L. Igoe, District Judge.

Samuel S. Siegel, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, Elmer M. Walsh, Jr., Asst. U. S. Attys., Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

HASTINGS, Chief Judge.

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Plaintiff Borislav Petrovic is an alien ordered to be deported to Yugoslavia; he made application to Alva L. Pilliod, Chicago District Director of Immigration and Naturalization, to withhold his deportation under Section 243(h) of the Immigration and Nationality Act, 8 U.S. C.A. § 1253. Application was heard by a Special Inquiry Officer who denied it. Regional Commissioner, on appeal, concurred. Suit was filed in the district court seeking judicial review of the Commissioner's order. The court, after a hearing, granted Director's motion for summary judgment.


The record reveals the following facts. Plaintiff is a 19 year old, single, male alien, a native and citizen of Yugoslavia. He was admitted to the United States on April 14, 1958, as a non-immigrant visitor but failed to depart upon the expiration of his visa on January 5, 1959. On June 5, 1959, after administrative hearing, he was ordered deported to Yugoslavia under Section 241(a) (2) of the Immigration and Nationality Act, 8 U.S. C.A. § 1251. The order was appealed to the Board of Immigration Appeals and affirmed on September 1, 1959; it is not in issue here.


Subsequently, plaintiff submitted application to withhold deportation under Section 243(h) of the Immigration Act which provides:


"The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution * * *."


Plaintiff at the hearing before the Inquiry Officer testified as to potential "physical persecution" in Yugoslavia because of imprisonment that might follow his unwillingness to serve in the Yugoslav army. Further, he asserted that he denounced communism to friends and acquaintances in the United States which, in turn, might serve as the basis of persecution upon his return.


The Special Inquiry Officer, in a written memorandum, concluded that plaintiff had not established that he would be physically persecuted if deported. He therefore recommended denial of plaintiff's application.


Plaintiff contends that the delegation of the power and authority given the Attorney General under Section 243(h) is unconstitutional; that the district court should have provided a trial de novo, and that the court has power to review arbitrary action of the Immigration and Naturalization Service.

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These legal arguments were fully considered in a companion case decided by this court today, Obrenovic v. Pilliod, 7 Cir., 282 F.2d 874. The plaintiff took full advantage of all rights of judicial review available to him. The record discloses no error.


On the basis of our holding in Obrenovic, the judgment of the district court is