Tadashi Miyaki v. Robert H. Robinson, District Director, Chicago District, Immigration and Naturalization Service ( 1958 )

257 F.2d 806

TADASHI MIYAKI, Plaintiff-Appellant,
v.
Robert H. ROBINSON, District Director, Chicago District, Immigration and Naturalization Service, Defendant-Appellee.

No. 12233.

United States Court of Appeals Seventh Circuit.

July 8, 1958.

Rehearing Denied September 4, 1958.

Thomas Masuda, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Charles R. Purcell, Jr., Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before FINNEGAN, SCHNACKENBERG and HASTINGS, Circuit Judges.

FINNEGAN, Circuit Judge.

1

Found ineligible for suspension of deportation, § 101(b) (3), Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101(b) (3), on the grounds he lacked good moral character, Miyaki, plaintiff-appellant, filed a complaint for declaratory judgment under § 10, Administrative Procedure Act, 5 U.S.C.A. § 1009. He appeals from the summary judgment entered against him on motion of the respondent District Director. Administrative remedies have been exhausted and no procedural questions are presented.

2

Miyaka, a Canadian citizen, was convicted in the Criminal Court of Cook County, Illinois, of burning a motor vehicle — an offense under Ill.Rev.Stat.1953, c. 38, par. 50, § 15. He was placed on probation for 24 months and now claims he "is entitled to suspension of his deportation as a matter of law on that the finding of guilty in burning personal property is not such a conviction as to affect . . . (his) moral character, so that he would be eligible for further consideration on his application for suspension."

3

This case is controlled by United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S. Ct. 618, 621, 1 L. Ed. 2d 652 "Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met."

4

Judgment affirmed.