Rafael Medina, Plaintiff-appellant, v. United States of America, Defendant-appellee. No. 00-2156, 259 F.3d 220 (4th Cir. 2001) :: US LAW
Rafael Medina, Plaintiff-appellant, v. United States of America, Defendant-appellee. No. 00-2156, 259 F.3d 220 (4th Cir. 2001)
Appeal from america District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge.
(CA-ninety nine-1498-A)COUNSEL ARGUED: Edward Scott Rosenthal, ROSENTHAL, RICH & COSTLE, L.L.P., Alexandria, Virginia, for Appellant. Lawrence Joseph Leiser, Assistant United States Lawyer, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Lawyer, Alexandria, Virginia, for Appellee.
Before WILKINS and KING, Circuit Judges, and Frederic N. SMALKIN, United States District Judge for the District of Maryland, sitting with the aid of designation.
Vacated and remanded with commands by using posted opinion. Judge King wrote the opinion, wherein Judge Wilkins and Judge Smalkin joined.
KING, Circuit Judge:
Rafael Medina become arrested by way of sellers of the Immigration and Naturalization Service ("INS") and subjected to deportation complaints, which the INS finally disregarded. After onerous his administrative remedies under the Federal Tort Claims Act, 28 U.S.C. SS 1346(b), 2671-2680 ("FTCA"), Medina delivered fit within the Eastern District of Virginia at the idea that the INS agents involved had arrested him without probable cause, thereby committing various torts underneath Virginia regulation. The district court granted summary judgment to the Government, and Medina appeals. Because we finish that the district court lacked challenge count number jurisdiction in this case, we vacate the summary judgment and remand with instructions that Medina s complaint be brushed off.
Medina was a resident of Virginia and a Venezuelan diplomat assigned to the Embassy of Venezuela in Washington, D.C. In September 1996, Medina s former fiancée accused him of various crimes, and he became indicted in Virginia for tried rape, sexual battery, burglary, petit larceny, and easy assault and battery. Over Medina s objections, Venezuela refused to waive his diplomatic immunity and rather recalled him to Venezuela. Determined to protect himself in opposition to the fees, Medina renounced his diplomatic fame and surrendered to the jurisdiction of the Circuit Court for the City of Alexandria. On May 29, 1997, Medina became acquitted with the aid of a jury of all charges except the misdemeanor of simple assault and battery under Virginia Code S 18.2-fifty seven, for which he became fined $2,000 and ordered to pay the state s prices of prosecution. In thinking about the charge, the jury become advised that, beneath Virginia regulation, simple assault and battery is "any bodily harm, however slight, completed to every other in any irritated, rude or vengeful way." J.A. 187.
Because of the uncommon occasions surrounding Medina s case, the Washington Post posted an editorial approximately the verdict, noting that, although he have been acquitted of maximum costs, Medina changed into convicted of "misdemeanor assault" of "his former fiancée [.]" J.A. 104. The article also stated that " [t]he misdemeanor conviction is not going to have an effect on Medina s immigration status [.]" When INS Special Agent Stephen C. Adaway study the newspaper article, but, he became unconvinced by way of the Post s legal conclusions. Adaway determined to pursue an inquiry into whether Medina had devoted against the law regarding moral turpitude ("CIMT") in the meaning of 8 U.S.C. S 1227(a) (2) (A) (i), rendering him problem to deportation. Upon analyzing the record of Medina s nation courtroom conviction, Adaway concluded that Medina had devoted a CIMT based at the"nature of the connection among Mr. Medina and the victim, his fiancée, and the character of the associated costs [.]" J.A. ninety six. After attaining this end, Adaway requested, via right channels, an arrest warrant from the INS Assistant District Director of Investigations. The Assistant Director reviewed and authorised Adaway s request, issuing an INS warrant on June 23, 1997, for Medina s arrest. J.A. 56. See 8 C.F.R. S 239.1(a) (three) (authorization for Assistant Director to problem arrest warrants).
Adaway and other INS dealers accomplished the warrant at Medina s residence in Arlington, Virginia, at the morning of July 2, 1997. Medina surrendered peaceably and become detained till later that afternoon, when he published a $7,500 bond. On July 10, 1997, Medina filed a motion to terminate the deportation complaints on the ground that simple attack and battery turned into not a CIMT. The INS sooner or later agreed with Medina, and on August 15, 1997, it filed a "nonopposition" to Medina s movement. Soon thereafter, an Immigration Judge granted Medina s motion and terminated the lawsuits.
On November 17, 1998, Medina filed an administrative declare for damages pursuant to the FTCA, which the INS denied on April 13, 1999.1 Thereafter, Medina, on October 6, 1999, filed his complaint in the district courtroom. The four bases for healing embodied in the criticism have been: (1) assault and battery; (2) fake arrest; (3) malicious prosecution; and (four) infliction of emotional distress. The courtroom, by way of its June 19, 2000 Order, granted summary judgment to the Government, concluding that "possibly motive existed to trust that plaintiff became deportable on the premise of being convicted of against the law of ethical turpitude. Because every of the counts in this lawsuit emanates from the belief that Adaway lacked probably purpose . . . each depend fails as a rely of law." J.A. 243-44. Medina now appeals, and we possess jurisdiction pursuant to twenty-eight U.S.C. S 1291.
The FTCA represents a constrained congressional waiver of sovereign immunity for harm or loss resulting from the negligent or wrongful act of a Government worker appearing in the scope of his or her employment. The statute allows america to be held in charge in tort inside the equal recognize as a non-public man or woman might be dependable underneath the regulation of the location in which the act befell. 28 U.S.C S 1346(b); Harris v. United States, 718 F.second 654, 656 (4th Cir. 1983). The FTCA does not create new reasons of movement; instead, it"serves to convey jurisdiction while the alleged breach of responsibility is tortious under nation regulation, or whilst the Government has breached a responsibility beneath federal regulation this is analogous to a obligation of care identified via state regulation." Goldstar (Panama) S.A. v. United States, 967 F.second 965, 969 (4th Cir. 1992). Since the INS officials alleged torts befell in Virginia, the substantial law of Virginia applies. See United States v. Neustadt, 366 U.S. 696, 706 n.15 (1961).
Before we attain the merits of Medina s declare, we have to be assured that Congress has waived sovereign immunity. Medina asserts a cause of movement below S 1346(b). However, 28 U.S.C.S 2680 presents for numerous exceptions to the FTCA. If any of those exceptions apply, we're limited to disregard Medina s criticism -even though the Government has no longer raised the difficulty -inasmuch because the United States is immune from in shape "without the consent of Congress." United States v. Bankers Ins. Co., 245 F.3d 315, 320 (4th Cir. 2001) (quoting Block v. North Dakota, 461 U.S. 273, 287 (1983)). Because the Govern ment s capacity immunity from in shape affects our jurisdiction, we first bear in mind whether or not Congress has waived sovereign immunity in this example. See Presidential Gardens Assocs. v. United States, one hundred seventy five F.3d 132, a hundred and forty (2nd Cir. 1999) (" [T]he Government s past failure to raise the defense of sovereign immunity in no way prevents this Court from thinking about the issue now."); United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000) (" [S]overeign immunity advances a jurisdictional bar . . . which the courtroom may additionally boost sua sponte [.]"); cf. Suarez Corp. Indus. v. McGraw, a hundred twenty five F.3d 222, 227 (4th Cir. 1997) ("We trust that, because of its jurisdictional nature, a court docket ought to bear in mind the difficulty of Eleventh Amendment immunity at any time, even sua sponte.").
Pursuant to S 2680(h), certain styles of intentional torts are exempted from legal responsibility under the FTCA. Three of Medina s four claims for alleviation -attack and battery, malicious prosecution, and false arrest -potentially implicate these exemptions. However, the S 2680(h) exemptions do no longer apply to (and the Government can be liable for) these torts while committed by using federal investigative or regulation enforcement officers. We are satisfied that the INS agents concerned meet this definition. See Caban v. United States, 728 F.second sixty eight, seventy two (second Cir. 1984) ("INS sellers are `investigative or law enforcement officers in the which means of [S 2680(h)]."); examine 28 U.S.C. S 2680(h) (definition of "investigative or law enforcement officer") with eight U.S.C. S 1357 (powers of INS agents).
We however finish that each one of Medina s claims fall within another exemption in S 2680. Although the provisions of this subsection, S 2680(a), have additionally now not been raised as a defense or a jurisdictional bar with the aid of the Government, S 2680(a) affords that the USA has now not consented to liability for [a]new york claim based totally upon an act or omission of an worker of the Government, exercising due care, inside the execution of a statute or law, whether or not or no longer such statute or law be valid, or based upon the exercising or overall performance or the failure to exercising or perform a discretionary function or responsibility at the a part of a federal enterprise or an employee of the Government, whether or not or now not the discretion concerned be abused.
Thus, pursuant to its provisions, S 2680(a) establishes two viable exceptions to the FTCA s fashionable waiver of sovereign immunity: (1) if the INS officials exercised due care inside the execution of their powers under 8 U.S.C. S 1226; or (2) if the INS officers have been performing a discretionary feature or responsibility in arresting Medina. Because we conclude that the INS marketers were sporting out the sort of discretionary feature, we need only deal with and solution the second one inquiry.
Federal courts have struggled extremely in finding out (1) the styles of behavior the S 2680(a) discretionary feature exception protects; and (2) whether and the way to observe the exception in instances brought under the intentional tort proviso found in S 2680(h). The Supreme Court has provided steerage in unraveling the previous thriller; the latter question, then again, remains unsettled. Still, we tread via this region with sizeable assistance from our sister circuits. We start with the latter hassle: the application of the discretionary characteristic exception in S 2680(a) to claims added pursuant to the intentional tort proviso of S 2680(h).
Since the intentional tort proviso in S 2680(h) in particular authorizes fits for, inter alia, malicious prosecution and false arrest, "it's been cautioned that congressional purpose could be defeated if immunity is afforded pursuant to segment 2680(a) in fits delivered beneath the proviso to phase 2680(h)." Gray v. Bell, 712 F.second 490, 507 (D.C. Cir. 1983). The district court in Townsend v. Carmel, 494 F. Supp. 30, 3637 (D.D.C. 1980), took any such position, protecting that suits underneath S 2680(h) did not should clear the discretionary characteristic "hurdle."
However, we are convinced that the D.C. Circuit resolved this question successfully in its choice in Gray. When requested to determine whether the discretionary feature exception inS 2680(a) carried out to regulation enforcement torts underneath S 2680(h), the Court of Appeals concluded that the 2 sections of the statute exist independently. Eschewing any idea that S 2680(h) overrodeS 2680(a), the court docket defined that S 2680(a) explicitly renders the FTCA s waiver of sovereign immunity inapplicable to "any claim based upon [a discretionary function.]" Gray, 712 F.2d at 507. We should anticipate that, whilst Congress amended S 2680(h) in 1974, it became aware of S 2680(a) and its contours. See Cannon v. Univ. of Chicago, 441 U.S. 677, 696-ninety seven (1979) ("It is constantly suitable to assume that our elected representatives . . . recognize the law [.]"). Furthermore, any incongruity between the 2 sections can effortlessly be reconciled. Gray, 712 F.2nd at 507; see additionally Gasho v. United States, 39 F.3d 1420, 1435 (ninth Cir. 1994) ("If [the United States] can display that the tortious conduct includes a `discretionary feature, a plaintiff cannot keep an FTCA claim, although the discretionary act constitutes an intentional tort below S 2680(h)."); Jackson v. United States, 77 F. Supp. 2nd 709, 714 (D. Md. 1999) ("The Court holds that a FTCA plaintiff must first overcome the discretionary characteristic `hurdle before the Court will recollect intentional tort claims under S 2680(h)."); but see Sutton v. United States, 819 F.2nd 1289, 1295 (5th Cir. 1987) (rejecting idea that discretionary function hurdle ought to continually be conquer due to the fact " [such] construction of the statute might bring about judicial repeal of the regulation enforcement proviso by rendering its authorization of fits for malicious prosecution, which frequently rise up out of, or in reference to discretionary acts, superfluous").
Thus, we are called upon to reconcile those two statutory provisions, and to determine the boundaries of the discretionary function exception located in S 2680(a). In doing so, we begin with the precept that " [f]ederal officials do no longer own discretion to violate constitutional rights or federal statutes." United States Fid. & Guar. Co. v. United States, 837 F.2nd 116, 120 (3d Cir. 1988); see also Berkovitz v. United States, 486 U.S. 531, 536 (1988); Red Lake Band of Chippewa Indians v. United States, 800 F.2nd 1187, 1196 (D.C. Cir. 1986). In this situation, Medina does now not allege that the INS dealers violated both the Constitution of the United States or any federal statutes or regulations. He merely alleges that violations of Virginia regulation happened for the duration of the issuance and execution of an INS warrant with the aid of federal officials.2 Of direction, the very reason of the S 2680(a) discretionary characteristic exemption is to immunize sure agency behavior that might violate nation regulation.
We therefore finish that the actions underlying intentional tort allegations described in S 2680(h), if legal and applied regular with federal regulation and the Constitution of the US, may be considered discretionary capabilities below S 2680(a), although they might otherwise represent actionable torts under country regulation. See Jackson, seventy seven F. Supp. 2nd at 714 (bringing up Garcia v. United States, 896 F. Supp. 467 (E.D. Pa. 1995)). This end result obtains from the need that federal officials be approved without obstacle to behavior the Nation s business in fifty unbiased, yet constitutionally inferior, legal jurisdictions. Hence, this example provides exactly the kind of situation that the discretionary characteristic exception seeks to deal with. If Congress meant a opposite result by its enactment ofS 2680(h), it did now not so imply. Therefore, Medina s FTCA claims of intentional torts underneath S 2680(h) should clear the S 2680(a) discretionary characteristic hurdle; we now turn to whether or not his claims have completed so.
When the D.C. Circuit confronted the discretionary characteristic exception in Gray, it noted that " [b]ecause the obscurity of this area is matched most effective by its wealth of conclusory analytical labels, wading through the applicable case regulation is exceptionally tough." Gray, 712 F.2nd at 507. However, considering Gray, the Supreme Court has clarified the difficulty. In Berkovitz, the Court installed a two-pronged take a look at to appoint in determining whether the discretionary feature exception applies. In order for the exception to use, the challenged behavior should "be the manufactured from judgment or choice," i.e., the exception does no longer practice when the worker is merely following"a federal statute, regulation, or coverage [that] specifically prescribes a course of motion." Berkovitz, 486 U.S. at 536. Second, the challenged conduct have to be "based on issues of public policy." Id. at 537.
The behavior of the INS officers in this case really meets the first prong of the Berkovitz take a look at. Pursuant to twenty-eight U.S.C. S 1226(a), "an alien may be arrested and detained pending a choice on whether or not the aliens to be removed from the USA." (emphasis brought).3 Indeed, the district court docket inquired of Medina s lawyer on precisely this factor:
Mr. Rosenthal: There was no requirement even for an arrest in this situation. . . . [F]requently in those kinds of instances, with one or misdemeanors, a trifling word is furnished.
The Court: Of path, that s discretionary with the officer making the ones choices . . . .
Mr. Rosenthal: I consider it's far.four
J.A. 216. In quick, the INS become provided with the proof of Medina s conviction for attack beneath Virginia regulation. Under 28 U.S.C. S 1227(a) (2) (A) (i), an alien admitted to america in the ultimate 5 years is deportable if he's (1) convicted of a CIMT, and (2) is convicted of against the law for which a sentence of 12 months or longer can be imposed. Since Medina s conviction was for a crime that could have led to a sentence of 365 days, the INS turned into charged with figuring out whether or not Medina s crime became one involving moral turpitude.
Moral turpitude "is a nebulous idea, which refers normally to behavior that shocks the general public judgment of right and wrong as being inherently base, vile, or depraved, contrary to the guidelines of morality and the obligations owed between man and man, both one s fellow man or society in popular." Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988). The concept has been part of our immigration laws for over a hundred years. See Jordan v. De George, 341 U.S. 223, 229 n.14 (1951) (discussing history of "moral turpitude" in immigration legal guidelines). It is not any coincidence that Congress did no longer define the time period, instead committing its interpretation to "destiny administrative and judicial interpretation." Cabral v. United States, 15 F.3d 193, 195 (1st Cir. 1994).
It appears obvious, then, that the INS s choice to say that Medina had in fact devoted a CIMT become a integral exercising of its huge discretion. See, e.g., In re Bahta, Interim Dec. 3437, 2000 WL 1470462 (BIA 2000) (" [T]he Service still has prosecutorial discretion, which incorporates the discretion to deal with the equities of individual cases in a way that the inflexible utility of a broadly drawn statute regularly will no longer permit."); In re G-N-C, Interim Dec. 3366, 1998 WL 646918 (BIA 1998) ("We recognize that the choice to institute deportation complaints entails the exercising of prosecutorial discretion [.]"). Since prosecutorial discretion is, via definition, a "choice," we are happy that the choice to arrest Medina and institute deportation proceedings satisfies the primary prong of the Berkovitz test.five
The 2nd prong of the discretionary function check is that the challenged conduct must implicate considerations of public policy. United States v. Gaubert, 499 U.S. 315, 322-23 (1991). This 2nd prong exists due to the fact the very reason of the discretionary feature exception is to save you judicial "2nd-guessing" of administrative selections grounded in social and political policy. Id.
We apprehend at the outset that "if a central authority worker has discretion underneath the primary Gaubert prong, it`must be presumed that his acts `are grounded in coverage whilst exercising that discretion [.] " Bernaldes v. United States, eighty one F.3d 428, 429 (4th Cir. 1996) (quoting Gaubert, 499 U.S. at 324)).
Furthermore, we find it widespread that Medina s crime became executed towards his former fiancée, Maria Bracho. The INS -which is statutorily authorized to administer the immigration legal guidelines and determine what constitutes a CIMT -has, in the past several years, taken steps to claim that crimes of assault upon victims that have a "unique courting" with the assaulter can be a CIMT. See In re Tran, 21 I. & N. Dec. 291, 292-ninety three (BIA 1996) (concluding that acts of violence against someone in a special courting with the assaulter is "one-of-a-kind from [assault] between strangers or friends," and is a CIMT); Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993) (conserving that spousal abuse is a CIMT); Toutounjian v. INS, 959 F. Supp. 598, 603 (W.D.N.Y. 1997) (" [S]exual or bodily abuse of ladies or children has been nearly uniformly found to contain against the law of moral turpitude.").
Medina strenuously contends, however, that this truth is beside the point considering that (1) it turned into no longer an detail of the offense of conviction (as in Tran and Grageda) and (2) his unique relationship with the victim turned into cited nowhere within the record of conviction; indeed, Adaway became privy to Medina s dating together with his ex-fiancee simplest as a result of the newspaper article. We acknowledge authority in guide of Medina s stance, see, e.g., Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (maintaining that the "specific familial courting allegedly concerned inside the crimes" turned into not applicable because it was not protected in the document of conviction), however the INS in reality had the discretion to say in any other case.6 Indeed, there are widespread and persuasive criminal bases for the INS to take this type of position.7
At bottom, the INS s selection to arrest Medina turned into absolutely clothed in public policy concerns. Faced with a report evincing the undisputed fact of his conviction, a choice become made, based totally on Medina s unique relationship together with his sufferer, to assert that Medina s conviction constituted a CIMT beneath the immigration legal guidelines. Even though the INS ultimately decided no longer to pursue the deportation of Medina, we're absolutely glad that the initial selection to initiate complaints and arrest him became the kind of corporation conduct Congress supposed to immunize within the discretionary characteristic exception found in S 2680(a). See, e.g., Sloan v. United States Dep t of Housing and Urban Dev., 236 F.3d 756, 760 (D.C. Cir. 2001) ("The decision to provoke a prosecution has long been regarded as a conventional discretionary characteristic.").
Pursuant to the foregoing, we vacate the order underneath and remand to the district court with instructions that the grievance be dismissed.
VACATED AND REMANDED WITH INSTRUCTIONS
Pursuant to the provisions of 28 U.S.C. S 2675(a), "An action shall not be instituted upon a declare in opposition to the USA for money damages . . . except the claimant shall have first provided the declare to the best Federal organization and his claim shall were finally denied by means of the enterprise in writing [.]"2
Although it isn't relevant to our resolution of this appeal, see infra, we word that Virginia may additionally properly provide immunity to officials who make a mistake of regulation in effectuating an arrest and prosecution. See DeChene v. Smallwood, 311 S.E.2nd 749, 751 (Va. 1984). And the United States is entitled to avail itself of any defenses its dealers may want to raise in their person capacities. See Norton v. United States, 581 F.second 390, 395 (4th Cir. 1978).
Under 28 U.S.C. S 1226(c) (1) (C), the INS s discretion is less clear. It affords that "the Lawyer General shall take into custody any alien who [is deportable for committing a CIMT and] has been sentence [d] to a time period of imprisonment of as a minimum 1 year." (emphasis delivered). Since Medina did no longer fit this scenario, the choice to detain him arose under S 1226(a).
This admission by using Medina relates to the INS s decision to arrest him, in place of issuing a Notice to Appear ("NTA"). Had the INS only issued an NTA -which simply directs an alien to seem earlier than an Immigration Judge -Medina would no longer own a claim for fake arrest or assault and battery stemming from the arrest. To the quantity any declare for malicious prosecution would continue to exist, we are satisfied that the selection to issue the NTA could additionally be excepted from the FTCA waiver of sovereign immunity as a discretionary function. See infra.
To the volume Medina would argue that the INS s desire to assert he had committed a CIMT become foreclosed through both In re Fualaau, 21 I. & N. Dec. 475 (BIA 1996), or Virginia law, we disagree. See Fallau, 21 I. & N. Dec. at 477 ("Simple assault isn't considered to be a criminal offense involving moral turpitude."); Godbolt v. Brawley, 463 S.E.second 657, 660 (Va. 1995) (identical, below Virginia regulation for impeachment of witnesses). First, we word that Virginia law does no longer manipulate the definition of CIMT.
Cabral, 15 F.3d at 196 n.5 (" [T]he definition of a CIMT [under the immigration laws] is an issue of federal law."). Second, we've got concluded that other government -referred to approvingly in Fallau -depart room for a simple attack to be a CIMT. See Matter of Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992) ("Simple attack is typically now not taken into consideration to be a crime involving moral turpitude.") (emphasis added); Danesh, 19 I. & N. Dec. at 671 (same). Third, in Fallau, a central issue was that the country of mind required beneath the Hawaii statute become recklessness, whereas in Medina s case a conviction for easy assault and battery in Virginia requires fashionable purpose that the battery has been completed in an "indignant, impolite, or vengeful way." Model Virginia Jury Instructions, Criminal No. 37.three hundred; J.A. 187. Fallau, 21 I. & N. Dec. at 478 ("evaluation of an alien s cause is important to a willpower concerning moral turpitude"). Indeed, the BIA known as Fallau s case one "of first influence" and considered it en banc. That the BIA believed it important to convene en banc to decide whether a conviction beneath Hawaii s simple assault statute became a CIMT speaks volumes approximately the immediate case. Moreover, Fallau pleaded responsible to recklessly causing physical harm, identification. at 476, arguably a criminal offense with factors less indicative of moral turpitude than that of which Medina was convicted. Put clearly, the BIA is constantly reevaluating those problems, and every case is unique -the resolution turning on the statutory or commonplace law factors of the particular nation crime of conviction, and the document of conviction. See In re Ajami, Interim Dec. 3405, 1999 WL 487022 (BIA 1999). We are detest to conclude that, given the uncertainty and ambiguity surrounding the time period "moral turpitude" and the BIA s constant battle with these troubles, that no discretion existed to say that Medina had committed a CIMT.
Even if the INS abused its discretion in so putting forward, Medina would not be able to gift an FTCA claim. Section 2680(a) specifically presents that the discretionary characteristic exception exists "whether or no longer the discretion involved be abused."
The rule excluding facts of the crime from a dedication of CIMT has been harshly and persuasively criticized at times (such as these days) within the courts. See, e.g., Michel v. INS, 206 F.3d 253, 268-71 (second Cir. 2000) (Calabresi, J., dissenting) ("Given the fact that this definition of `moral turpitude appears to require some evaluation of whether or not a specific crime is `inherently base, vile, or depraved, [etc.,] it's far difficult to recognize how the gravity of the crime can play no component inside the inquiry.") (emphasis in unique); Marciano v. INS, 450 F.2d 1022, 1026-31 (8th Cir. 1971) (Eisele, J., dissenting); Tillinghast v. Edmead, 31 F.2nd eighty one, eighty four (1st Cir. 1929) (Anderson, J., dissenting); Zgodda v. Holland, 184 F. Supp. 847, 849 (E.D. Pa. 1960) ("Counsel s argument makes a effective enchantment to cause and moral sense. It poses the query whether or not the moral exceptional of an act may be assessed apart from the effect of attendant situation. Unfortunately for this petitioner, the query is not an open one. We remorse that we are not unfastened, as we recognize the law, to move again of the convictions.").