Review of Tsatsaronis v. Shaughnessy

FREDERICK VAN PELT BRYAN, District Judge.

Petitioner, an alien, moves to vacate and set aside an order of this Court which denied, on the merits, his application for a review of proceedings before' the Board of Immigration Appeals, and. for a stay of an order of deportation pending against him. The only ground of petitioner’s motion is that the Attorney General of the United States was. an indispensable party to the proceeding, that the petitioner himself did not join the Attorney General as a party, and. that therefore this Court lacked jurisdiction to enter the prior order.

The case of Ceballos v. Shaughnessy, 2 Cir., 229 F.2d 592, cited by the petitioner, holds that the Attorney General is an indispensable party to an action to. review an order of deportation. The Ceballos case is now on certiorari to the Supreme Court of the United States (certiorari granted 351 U.S. 981, 76 S.Ct. 1047, 100 L.Ed. 1495) and has not yet been decided by that Court.¹ But it is unnecessary to predicate my decision on this motion on the holding of the Court of Appeals in the Ceballos case. Cf. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868.

The petitioner is in no position to raise the question of his own failure to name the Attorney General as a party. Lack of jurisdiction over the person of the Attorney General is personal to the Attorney General and is a defense which only he may raise. Moreover, lack of jurisdiction over the person may always be waived and the Attorney General, through the appearance of the United States Attorney in this action, and his defense of the action on the merits, has made such a waiver.

The motion is denied.

1 . Decided March 11, 1957, see 77 S.Ct. 545.