Antonio Rodriguez Silva brought this action to set aside an order of the Immigration and Naturalization Service (Service), denying Silva's application for adjustment of status to that of a lawful permanent resident. Plaintiff also sought a judicial declaration that he has established his eligibility for, and should be granted, such status. Harlan B. Carter, as Regional Commissioner for the Service at San Pedro, California, was named defendant. District court jurisdiction was asserted under section 10 of the Administrative Procedure Act,1 and the Declaratory Judgment Act, 28 U.S.C. 2201 (1958).

Judgment was entered for defendant and Silva appeals. He contends that administrative officials erred in invoking discretionary powers without first determining his statutory eligibilty for the relief requested; erroneous factual determinations were made amounting to 'arbitrariness'; the Regional Commissioner was arbitrary and capricious in considering matters outside the record when invoking his discretionary powers; a fair hearing before the district director was not accorded; and the decision of the agency should be set aside so that new procedures, which became effective on January 22, 1962 could be invoked.

Silva was born in Mexico on February 22, 1908. He first entered the United States from Mexico on March 16, 1918 at El Paso, Texas, although no record of that entry has been found. Silva has had his residence in the United States continuously since that date, but has made several departures and reentries. He last entered the United States at Nogales, Arizona, on July 3, 1957, after an absence of about eighteen days in Mexico.

Silva is married to a native and citizen of the United States and is the father of nine children who are citizens of the United States. On January 23, 1953, he was convicted in the courts of California on six counts of grand theft, a crime involving moral turpitude. He entered prison in October, 1953, and was released on parole two years later. On June 5, 1958, Silva was sent back to prison as a parole violator, being finally released in October, 1959, after serving his full sentence.

On July 1, 1959, the Service entered an order for Silva's deportation to Mexico. This order has not been executed and is still outstanding.

On January 27, 1961, Silva filed an application under section 249 of the Immigration and Nationality Act (Act),2 for a record of lawful admission for permanent residence. This relief, if granted, would have given Silva a basis for asking that the order of deportation be set aside.

One of the statutory prerequisites for such relief is that the applicant satisfy the Attorney General that he is not inadmissible under section 212(a) of the Act,3 insofar as that section relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens. As the record then stood, Silva could not meet this requirement, as his previous conviction of a crime involving moral turpitude rendered him inadmissible under section 212(a)(9).

There is, however, a procedure under which certain otherwise eligible aliens who are inadmissible under paragraphs (9), (10) or (12) of section 212(a) of the Act, may request a waiver of such ground of inadmissibility pursuant to the provisions of section 5 of the Act of September 11, 1957, now section 212(g) of the Act.4 This procedure is provided for in 8 C.F.R. 249.1, as amended.5 Seeking to take advantage of this procedure in conjunction with his application under section 249 of the Act, Silva requested a waiver of section 212(a)(9) on February 16, 1961.

As stated in section 212(g), the only aliens who may obtain such a waiver are those who bear an indicated relationship to a United States citizen, or to an alien lawfully admitted for permanent residence, and who fulfill other conditions specified in the statute, to be discussed below. Silva met this initial relationship requirement because he was the husband and father of citizens of the United States.

Two other conditions had to be met in order to obtain a waiver under section 212(g). First, it was necessary for Silva to establish to the satisfaction of the Attorney General that (a) his exclusion would result in extreme hardship to his wife or children, and (b) his admission would not be contrary to the national welfare, safety or security of the United States. Second, it was necessary for the Attorney General, in his discretion, to consent to the waiver.6

The application made under section 249, and the related request for waiver of section 212(a)(9) came before District Director George K. Rosenberg for consideration. Counsel for Silva requested an opportunity to present oral testimony and this was granted. On the basis of this testimony and exhibits offered at the same time, and on the basis of the application and request and the documents submitted in support of them, the district director, on June 23, 1961, denied the request for waiver. The district director also, and necessarily in view of the denial of the request for waiver, denied the application under section 249 for a record of lawful admission for permanent residence.

These orders are set out at the end of a twenty-five page document in which the district director discussed the issues of fact and law. Indicating his reasons for denying the request for waiver, the district director first held that Silva had failed to establish that his exclusion from the United States would result in extreme hardship to his wife or children. This official further held that even if Silva were able to meet this statutory eligibility requirement of extreme hardship, the favorable exercise of the Attorney General's discretion is not warranted. The district director based this conclusion on his evaluation of the nature and extent of Silva's political activities, and his marital and extra-marital relations.

Silva appealed from these orders to the acting regional commissioner, Southwest Region. On December 4, 1961, the regional commissioner entered an order denying the application and dismissing the appeal.7 On the question of whether Silva had met the statutory eligibility requirement of extreme hardship, the regional commissioner found contrary to the district director. But the regional commissioner held, as had the district director, that Silva does not merit the favorable exercise of discretion of the Attorney General, which is a requisite to the granting of a waiver under section 212(g).8

It will be noted that, in denying the request for waiver, neither the district director nor the regional commissioner determined whether Silva met the second statutory eligibility requirement, i.e., that his admission be not contrary to the national welfare, safety, or security of the United States. Silva argues that the failure to make this determination constitutes error, requiring that the order be set aside.

The lack of an express ruling as to this eligibility requirement can mean only one of three things: (1) the regional commissioner assumed that Silva did not meet this eligibility requirement; (2) the commissioner assumed that Silva did meet this requirement; or (3) the commissioner made no assumption or sub silentio ruling whatever concerning that requirement.

Nothing contained in the regional commissioner's decision indicates that he assumed that Silva did not meet this requirement, and Silva makes no such contention. That no such assumption was made is also indicated by the fact that the commissioner dealt with and determined the matter of discretion. But if, contrary to all indications, the regional commissioner did make an assumption adverse to Silva as to the second eligibility requirement, that would not be prejudicial to Silva unless it somehow could have affected the exercise of discretion vested in the Attorney General. There is nothing whatever in the regional commissioner's decision, or otherwise, tending to establish that his exercise of discretion was so influenced.

If anything is to be implied concerning the regional commissioner's opinion as to the second eligibility requirement, in view of his silence on the point, it is that he assumed that the requirement had been met. This would explain why the regional commissioner thought it necessary to proceed to a determination of the matter of discretion. The fact that a determination in his favor on the second eligibility requirement was manifested by an unexpressed assumption instead of an express ruling would not prejudice Silva, either as to the determination of that matter or the exercise of the Attorney General's discretion.

If the lack of an express ruling on the second eligibility requirement is to be taken as an indication that no determination whatever was made as to that matter, Silva was likewise not prejudiced. In that event, the matter left to the Attorney General's discretion must have been exercised without reference to the facts concerning eligibility. This is as it should be, whether or not there are express rulings on the questions of eligibility. Had the regional commissioner ruled that Silva met both eligibility tests, he was still empowered to deny the request for waiver in the exercise of discretion. His power could not be less where no such ruling had been made.

Silva calls attention to Jay v. Boyd, 351 U.S. 345, 353, 76 S. Ct. 919, 100 L. Ed. 1242, a case involving the discretionary form of relief known as suspension of deportation. The court there said that eligibility for such relief 'is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility.'9 Granting the application, by analogy, of this statement to the problem now before us, we do not believe that it helps Silva.

Where discretionary relief is denied on the ground of ineligibility, the ruling is subject to full court review, as in McGrath v. Kristensen, 340 U.S. 162, 169, 71 S. Ct. 224, 95 L. Ed. 173. In order to provide a basis on which there can be such a review, there must be a full and fair hearing as to those matters. But, as we have already stated, there is here nothing to indicate that discretionary relief was denied by the regional commissioner on the ground of ineligibility. Thus Silva could not possibly have been prejudiced by the lack of an express ruling as to eligibility.10

We conclude that the regional commissioner did not err in denying the request for waiver on the discretionary ground, without first making an express ruling on the second element of statutory eligibility specified in section 212(g).

On the assumption that the district director or regional commissioner found that Silva failed to establish the second element of statutory eligibility, Silva argues that there has been an erroneous factual determination amounting to 'arbitrariness.'

As before indicated, we believe such an assumption is unwarranted, and that, in any event, there is nothing to indicate that any such assumption effected the regional commissioner's exercise of discretion. Accordingly, we need not decide whether, if such an assumption were made, it represented such an erroneous factual determination as to manifest arbitrary action.

Silva contends that the regional commissioner considered evidence outside the record of the hearing concerning matters subsequent thereto, in support of his determination that Silva did not merit the favorable exercise of the Attorney General's discretion. Such action, Silva argues, was arbitrary and capricious and amounts to a denial of due process.

In support of this contention Silva refers to one of the reasons given by the regional commissioner for denying the request for waiver on discretionary grounds. This reason was '* * * his (Silva's) most recent trial for vote fraud which, although ending in acquittal, when considered with the unfavorable aspects of his political activities, must all enter into this decision.'11

The hearing before the district director was completed on April 17, 1961, and the decision of that official was handed down on June 23, 1961. The 'vote fraud' trial, to which the regional commissioner referred, was commenced by a state-court indictment returned on July 25, 1961. The criminal action was dismissed on November 15, 1961, after trial and a jury verdict against Silva, on the ground of insufficiency of the evidence. The argument before the regional commissioner was held on November 21, 1961. His decision was rendered on December 4, 1961.

There is, as Silva concedes, no express statutory or regulatory grant of any right to a hearing on a request, pursuant to section 212(g), for a waiver of a ground of admissibility. Such a request, and the related application under section 249 for a record of lawful admission for permanent residence, are ordinarily determined on the basis of the request, application, and the documents submitted in support of them.

But, in this case, Silva's attorney requested an opportunity to present oral testimony, and the district director granted the request.12 However, it was never represented to Silva or his attorney, at that time or later, that the discretionary phase of the agency's action would be based solely on facts developed in the presence of Silva at a hearing before the district commissioner.

That Silva and his counsel understood that the exercise of discretion was not so limited, and acquiesced therein, is demonstrated by the nature of the argument Silva's counsel made before the regional commissioner on the appeal. In the course of that argument counsel made no attempt to confine himself to the record made before the district director at the time of Silva's oral testimony. On the question of hardship Silva's counsel called attention to 'some new developments' in the family status since the hearing of April, 1961. With regard to Silva's political activities, which had been referred to by the district director, Silva's attorney told the regional commissioner of events which had occurred in July, 1961. He also called attention to newspaper articles published on October 22 and November 5, 1961, reporting certain political activity.

Concerning the specific item of new information which, Silva contends, the regional commissioner should not have considered, it appears that his attorney fully and voluntarily developed the facts during his argument before the regional commissioner.13 Silva is not in a position to complain because the regional commissioner took note of this and other information which his own counsel supplied concerning events subsequent to the session before the district commissioner. There is no claim that the regional commissioner did not correctly understand the facts concerning the vote fraud trial.

Apart from the manner in which the vote fraud trial information reached the regional commissioner, Silva argues that since the trial resulted in acquittal it should not have played any part in the exercise of discretion in passing upon the waiver request. In our opinion, however, the consideration of this information along with the other factors mentioned by the regional commissioner did not manifest arbitrary and capricious action. At the very least, this development demonstrated that Silva, who was not qualified to vote, still persisted in political activity of a nature which had gotten him into trouble with his parole officers and others over a considerable period of time.

At the outset of the proceedings before the district director, Silva's counsel was told to reserve any objections to questions which he might have until all of the oral statements had been received. Silva contends that this ruling denied him a fair hearing. He also argues that the transcript of the proceedings was wholly inadequate.

Counsel for Silva made no objections to questions at the close of the testimony. We are told he could not then have done so because it was a lengthy hearing and he did not have a daily transcript. But Silva had a transcript for the purposes of this court proceeding and still he suggests no objections that he would have made. Accordingly, and entirely apart from the question of whether Silva should have been accorded the right to voice objections during the course of the proceedings, we conclude that no prejudice has been shown. In our opinion the transcript was not so inadequate as to constitute reversible error.

Silva asks us to reverse and remand to the agency, so that he can start again before a special inquiry officer under new procedures resulting from a December 16, 1961 amendment of 8 C.F.R. 242.8(a), effecective January 22, 1962

We do not regard this as a proper ground for reversal. In amending this regulation the agency did not intend to provide a basis for reopening proceedings which had already become final at the agency level. This is made clear in a statement issued in connection with the promulgation of the amendment of 242.8(a). See 26 Fed.Reg. 12111, December 19, 1961.

The judgment is affirmed.