Opinion
No. 9442.
Argued October 2, 1964.
Decided December 7, 1964.
F. Murray Callahan, Washington, D.C., for petitioner.
David E. Birenbaum, Washington, D.C., for American Civil Liberties Union, amicus curiæ.
Maurice A. Roberts, Attorney, Department of Justice (Claude V. Spratley, Jr., U.S. Atty., and Samuel W. Phillips, Asst. U.S. Atty., on brief), for respondent.
Before SOBELOFF, Chief Judge, and FAHY and BRYAN, Circuit Judges.
Petitioner is concededly a deportable alien. Pursuant to Section 243(h) of the Immigration and Nationality Act, 66 Stat. 214 (1952), 8 U.S.C. § 1253 (1958), he applied to the Attorney General to exercise his discretion to withhold deportation. After intermediate proceedings the Board of Immigration Appeals denied the application by order entered April 18, 1963. A petition to review such an order is by statute required to be filed within six months from its date. Immigration and Nationality Act, § 106(a)(1), as added by 75 Stat. 651 (1961), 8 U.S.C. § 1105a(a) (Supp. V, 1959-63). The petition to this court, vested with exclusive jurisdiction to review the order, Foti v. Immigration Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), was not filed until April 10, 1964. It is therefore untimely.
Within six months from the date of the order petitioner did petition the United States District Court for the District of Columbia for review by that court. Under stipulation the matter was there held in abeyance pending the outcome of Foti, supra, after which the District Court dismissed the case. These circumstances do not authorize us to extend the period, fixed by statute, within which a petition must be filed in the court having jurisdiction to review the order.
Respondent suggests that petitioner is not remediless, since, it is said, the issue he would have us decide can be raised in habeas corpus proceedings should petitioner be taken in custody for purposes of deportation. Whether or not this suggestion is sound we are not called upon to decide in this case.
Dismissed.