Kwok v. Immigration and Naturalization Service

206 OCTOBER TERM, 1967. Opinion of the Court. 392 U. S.

CIIENG FA-N KWOK v. IMMIGRATION AND NATURALIZATION SERVICE.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 638. Argued May 2, 1968.-Decided June 10, 196S.

Jurisdietion to review the denial by a district dir(etor of immigration of a stlav of deportation, requested by a Chinese seaian'who had deserted his ship and remained unlawfully in this country, where the pertinent order was not entered in the course of a deportation proceeding conducted under §242 (b) of the Immigration and Nationality Act, is not, under the provisions of § 106 (a), vested exclusively in the courts of appeals. Pp. 208-218. 381 F. 2d 542, affirmed.

Jules E. Coven argued the cause for petitioner. With him on the brief was Abraham Lebenkoff. CharlesGordon argued the cause for respondent. With him on the briefs were Solicitor General Griswold, Assist- ant Attorney General Vinson, and Francis X. Beytagh, Jr. lfilliam H. Dempsey, Jr., by invitation of the Court, 390 U. S. 918, argued the cause and filed a brief, as amicus curiae, urging affirmance.

MR. JUSTICE HARLAN delivered the opinion of the Court. The narrow question presented by this case is whether jurisdiction to review the denial of a stay of deportation, if the pertinent order has not been entered in the course of a proceeding conducted under § 242 (b) of the Immi- gration and Nationality Act, 66 Stat. 209, 8 U. S. C. § 1252 (b), is,.under § 106 (a) of the Act, 75 Stat. 651, 8 U. S. C. § l105a (a), vested exclusively in the courts of

CHENG FAN KWOK v. IMMIGRATION SERV. 207 206 Opinion of the Court.

appeals.1 The question arises from the followinmg cir- cumstances. Petitioner, a native and citizen of China, evidentlv entered -the United States ill1965 as a seaman.: The terms of his entry permitted him to remain in tills coun- try for the period during which his vessel was in port. provided that this did not exceed 29 days. Sec 8 U. S. ('. § 1282 (a). :' He deserted his vessel, and remained unlaw- fully in the United States. After petitioner's eventual apprehension,,deportation proceedings were conducted by a special inquiry officer under the~authority of § 242 (b). Petitioner conceded his deportability, but sought and obtained permission to depart the United States volun- tarily.4 Despite his protestations of good faith, peti- tioner did not voluntarily depart, and was ultimately ordered to surrender for deportation. He theft requested a stay of deportation from a district director of immi- gration, pending the submission and disposition of an application for, .adjustment of status under 8 U. S. C. § 1153 (a) (7) (1034 ed., Supp. II). 5 The district directot

1We emphasize that no questions are pr,psented as to petitioner's deportability or as to the propriety in his situation of any discre- tionary relief.. We intimate no views on any such questions. 2 The facts concerning petitioner's entry into, and subsequent stay in, the United States appear to have been conceded in the proceeding before the special inquiry officer. 3 Section 1282 (a) provides in relevant part that "(a) No alien crewman'shall be permitted to land temporarily in the United States .except . . . for a period of time, in any event, not to exceed- (1) the period of time (not exceeding twenty-nine days) during which the vessel . .. remains in port .... 4 We note, as we did in Foti v. lmmigration Service, 375 U. S.217, that the "granting of voluntary departure relief does not result in the alien's not being subject to an outstanding final order of depor- tation." Id., at 219, n. 1. SSection 1153 (a) (7) (1964 ed., Supp. I1) provides in part that "[c]onditional entries shall next be made available . . .to aliens who

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Opinion of the Court. 392 U. S.

concluded that petitioner is ineligible for such an adjust- ment of status, and denied a stay of deportation. Petitioner thereupon commenced these proceedings in the Court of Appeals for the Third Circuit, petitioning for review of the denial of a stay. The Court of Appeals held that the provisions of § 106 (a), under which it would otherwise have exclusive jurisdictionS to review the district director's order, are inapplicable to orders denying ancillary relief unless those orders either are entered in the course of a proceeding conducted under § 242 (b), or are denials of motions to reopen such proceedings. The court dismissed the petition for want of jurisdiction. 381 F. 2d 542. We granted certiorari because the courts of appeals have disagreed as to the proper construction, of the pertinent statutory provisions.' 390 U. S. 918. For reasons that follow, we affirm. I. It is useful first to summarize the relevant provisions of the Immigration and Nationality Act and of the regu- lations promulgated under the Act's authority. Sec-

satisfy an Immigration and Naturalization Service officer .. .that (i) because of persecution or fear of persecution ... they have fled from any Communist or Communist-dominated coun- try . . . ." Conditional entries are available only to refugees, and, like the parole system, grant "temporary harborage in this country for humane considerations or for reasons rooted in public interest." C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.54 (1967). See also id., at § 2.27h. , Compaie the following: Skiftos v. Immigration & Naturalization Service, 332 F. 2d 203 (C. A. 7th Cir.); Talavera v. Pederson, 334 F. 2d 52 (C. A. 6th.Cir.); Samala v. Immigration & Naturaliza- tion Service, 336 F. 2d 7 (C. A. 5th Cir.); Mendez v. Major, 340 F. 2d 128 (C. A. 8th Cir.); Melone v. Immigration & Naturalization Service, 355 F. 2d 533 (C. A. 7th Cir.); Mui v. Esperdy, 371 F. 2d 772 (C. A. 2d Cir.); Yamada v. Immigration & Naturalization Serv- ice, 384 F. 2d 214 (C. A. 9th Cir.); De Lucia v. Attorney General, U. S. App. D. C. , - F. 2d -.

CHENG FAN KWOK v. IMMIGRATION SERV. 209

206 Opinion of the Court.

tion 242 (b) provides'a detailed administrative procedure for determining whether an alien may be deportM. It permits the entry of an order of deportation only upon the basis of a recor made in a proceeding before a special inquiry officer, at' which the alien is assured rights to counsel, to a reasonable opportunity to examine the evidence against him. to cross-examine witnesses, and to present evidence in his own behalf. By regulation, various forms of discretionary relief may also be sought from the special inquiry officer in the course of the deportation proceeding-, an alien may, for example, request that his deportation be temporarily withheld, on the ground that he might, in the country to which he is to be deported, "be subject to persecution .... " See 8 U. S. C. . 1253 (h) (1964 ed., Supp. II); 8 CFR § 242.8 (a). Other forms of discretionary relief may be requested after termination of the deportation proceeding. The regulations thus provide that an alien "under a final administrative order of deportation" may apply to the district director "having jurisdiction over the place where the alien is at the time of filing" for a stay of deporta- tion. 8 CFR § 243.4. The stay may be granted by the district director "in his discretion." Ibid. If the stay is denied, the denial "is not appealable" to the Board of Immigration Appeals. Ibid. Section 106 (a)' provides that the procedures for judi- cial review prescribed by the Hobbs Act, 64 Stat. 1129, 68 Stat. 961, "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens . . . pursuant to administrative proceedings under section 242 (b) of this Act . . . ." These procedures . I Section 106 (a), 8 U. S. C. § 1105a (a), was added to the Immi- gration and Nationality Act by § 5 (a) of Public Law 87-301, ap- proved September 26, 1961, 75 Stat. 651.

OCTOBER TERM, 1967. Opinion of the Court. 392 U. S.

vest in the courts of appeals exclusive jurisdiction to review final orders issued by specified federal agencies. In situations to which the provisions of § 106 (a) are inapplicable, the alien's remedies would, of course, ordi- narily lie first in an action brought in an appropriate district court. The positions of the various parties may be summarized as follows. We are urged by both petitioner and the Immigration Service to hold that the provisions of § 106 (a) are applicable to the circumstances presented by this case, and that judicial review thus is available only in the courts of appeals. The Immigration Service contends that § 106 (a) should be understood to embrace all determinations "directly affecting the execution of the basic deportation order," whether those determina- tions have been reached prior to, during, or subsequent to the deportation proceeding.8 In contrast, amicus urges, as the Court of Appeals held, that § 106 (a) encom- passes only those orders made in the course of a pro- ceeding conducted under § 242 (b) or issued upon motions to reopen such proceedings. II. This is the third case in which we have had occasion to examine the effect of § 106 (a). In the first, Foti v. Immigration Service, 375 U. S. 217, the petitioner, in the course of a proceeding conducted under § 242 (b), con- ceded his deportability but requested a suspension of de- portation under § 244 (a) (5). The special inquiry officer denied such a suspension, and petitioner's appeal from the Brief for Respondent 28. o Since the Immigration Service had aligned itself with petitioner on this question, the Court invited William H. Dempsey, Jr., Esquire, a member of the Bar of' this Court, to appear and present oral argument as amicus curiae in support of the judgment below. 390 U. S. 918.

CHENG FAN KWOK v. IMMIGRATION SERV. 211 206 Opinion of the Court.

denial was dismissed by the Board of Immigration Ap- peals. Petitioner commenced an action in the district court, but the action was dismissed on the ground that, under § 106 (a), his exclusive remedy lay in the courts of appeals. He then petitioned for review to the Court of Appeals for the Second Circuit, but it dismissed for want of jurisdiction. A divided court held en banc that the procedures of § 106 (a) were inapplicable to denials of, discretionary relief under § 244 (a) (5). 308 F. 2d 779. On certiorari, we reversed, holding that "all determina- tions made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Ap- peals . . . are . . . included within the ambit of the exclusive jurisdiction of the Court of Appeals under § 106 (a)." 375 U. S., at 229. In the second case, Giova v. Rosenberg, 379 U. S. 18, petitioner moved before the Board of Immigration Ap- peals to reopen proceedings, previously conducted under § 242 (b), that had terminated in an order for his depor- tation. The Board denied relief. The Court of Appeals for the Ninth Circuit concluded that the Board's denial was not embraced by § 106 (a), and dismissed the peti- tion for want of jurisdiction. 308 F. 2d 347. On cer- tiorari, this Court held, in a brief per curiam opinion, that such orders were within the exclusive jurisdiction of the courts of appeals. Although Foti strongly suggests the result that we reach today, neither it nor Giova can properly be re- garded as controlling in this situation. Unlike the order in Foti, the order in this case was not entered in the course of a proceeding conducted by a special inquiry officer under § 242 (b); unlike the order in Giova, the order here did not deny a motion to reopen such a pro- ceeding. We regard the issue of statutory construction involved here as markedly closer than the questions pre-

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sented in those cases; at the least, it is plainly an isssue upon which differing views may readily be entertained. In these circumstances, it is imperative, if we are accu- rately to implement Congress' purposes, to "seiz[e] every thing from which aid can be derived." Fisher v. Blight, 2 Cranch 358, 386. It is important, first, to emphasize the character of the statute with which we are concerned. Section 106 (a) 'is intended exclusively to prescribe and regulate a por- tion of the jurisdiction of the federal courts. As a juris- dictional statute, it must be construed both with'pre- cision and with fidelity to the terms by which Congress has expressed its wishes. Utah Junk Co. v. Porter, 328 U. S. 39, 44. Further, as a statute addressed entirely to "specialists," it must, as Mr. Justice Frankfurter ob- served, "be read by judges with the minds of... specialists." 10 We cannot, upon close reading, easily. reconcile the position urged by the Immigration Service with the terms of § 106 (a). A denial by a district director of a stay of deportation is not literally a "final order of deporta- tion," nor is it, as was the order in Foti, entered in the course of administrative proceedings conducted under § 242 (b). 11 Thus, the order in this case was issued more 10 Frankfurter, Some Reflections on the Reading of Statutes, 2 Record of N. Y. C. B. A. 213, 225. 11 We find the emphasis placed in dissent upon the word "pursuant" in § 106 (a) unpersuasive. First, § 106 (a) was evidently limited to those final orders of deportation made "pursuant to administrative proceedings under section 242 (b)" simply because Congress pre- ferred to exclude from it those deportation orders entered without a § 242 (b) proceeding. This would, for example, place orders issued under 8 U. S. C. § 1282 (b), by which the Immigration Service may revoke a seaman's conditional permit to land and deport him, outside the judicial review procedures of § 106 (a). See generally C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.11

CHENG FAN KWOK v. IMMIGRATION SERV. 213 206 Opinion of the Court.

than three months after the entry of the final order of deportation,'- in proceedings entirely distinct from those conducted under § 242 (b), by an officer other than the special inquiry officer who, as required by § 242 (b), presided over the deportation proceeding. The order here did not involve the denial of a motion to reopen proceedings conducted under § 242 (b), or to reconsider any final order of deportation. Concededly, the appli- cation for a stay assumed the prior existence of an order of deportation, but petitioner did not "attack the depor- tation order itself but instead [sought] relief not incon- sistent with it." Mui v. Esperdy, 371 F. 2d 772, 777. If, as the Immigration Service urges, § 106 (a) embraces all determinations "directly affecting the execution of" a final deportation order, Congress has selected language remarkably inapposite for its purpose. As Judge Friendly observed in a similar case, if "Congress had

(1967). Perhaps this suggests, as amicus urges, that § 106 (a) was intended to be limited to situations in which quasi-judicial proceed- ings, such as those under § 242 (b), have been conducted. It cer- tainly indicates that the reference in § 106 (a) to § 242 (b) proceed- ings was intended to limit, and not to broaden, the classes of orders to which § 106 (a) may be applied. Second, it must be reiterated that § 106 (a) does not, as the dissenting opinion suggests, encompass "all orders" entered pursuant to § 242 (b) proceedings; it is limited to "final orders of deportation." The textual difficulty, with which the dissenting opinion does not deal, is that the order in question here neither is a final order of deportation, nor is it, as was the order in Foti, "made during the same proceedings" in which a final order of deportation has been issued. 375 U. S., at 224. This cannot be overcome merely by examination of the mean- ing of the word "pursuant." 12 The special inquiry officer's decision, which established deport-

ability and granted voluntary departure, was issued on March 3, 1966. Petitioner filed his application, for a stay on June 20, 1966. The application was evidently denied on the same day.

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wanted to go that far, presumably it would have known how to say so." Ibid. The legislative history of § 106 (a) does not strengthen the position of the Immigration Service. The "basic pur- pose" of the procedural portions of the 1961 legislation was. as we stated in Foi, evidently "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts . . . ." 375 1'. S., at 226. Congress prescribed for this purpose sev- eral procedural innovations, among then the device of direct petitions for review, to the courts of appeals. Al- though, as the Immigration Service has emphasized, the broad purposes of the legislation might have been ex- pected to encompass orders denying discretionary relief entered outside § 242 (b) proceedings, there is evidence that Congress deliberately restricted the application of § 106 (a) to orders made in the course of proceedings conducted under § 242 (b). Thus, during a colloquy on the floor of the House of Representatives, to which we referred in Foti,'3 Repre- sentative Moore, co-sponsor of the bill then under dis- cussion, suggested that any difficulties resulting from the separate consideration of deportability and of discretion- ary relief could be overcome by "a change in the present administrative practice of considering the issues . . . piecemeal. There is no reason why the Immigration Service could not change its regulations to permit con- temporaneous court consideration of deportability and administrative application for relief." 105 Cong. Rec. 12728. In the same colloquy. Representative Walter, the chairman of the subcommittee that conducted the pertinent hearings, recognized that certain forms, of dis- cretionary relief may be requested in the courset'of a

13 See 375 U. S., at 223-224.

CHENG FAN KWOK v. IMMIGRATION SERV. 215 206 Opinion 'of the Court.

deportation proceeding, and stated that § 106 (a) would apply to the disposition of such requests, "just as it would apply to any other issue brought up in deportation pro- ceedings." 105 Cong. Rec. 12728 (emphasis added). Similarly, Representative Walter, in a subsequent debate, responded to a charge that judicial review under § 106 (a) would prove inadequate because of the absence of a suit- able 'record, by inviting "the -gentleman's attention to the law in section 242, in which the procedure for the examiner is set forth in detail." 107 Cong. Rec. 12179. 'We believe that, in combination with the terms of § 106 (a) -itself, these statements lead to the inference that Congress quite deliberately restricted the application of § 106 (a) to orders entered during proceedings con- ducted under § 242 (b), or directly challenging deporta-. tion orders themselves." - This is concededly "a choice between uncertainties," but we are "content to choose the lesser." Burnet v. Guggenheim, 288 U. S. 280, 288. We need not speculate as to Congress' purposes. Quite possibly, as Judge Browning has persuasively sug- gested, "Congress visualized a single admhinistrative pro- ceeding in which all questions relating to an alien's deportation would be raised and.resolved, followed by a single petition in a court of appeals for judicial re= view ...." Yamada v. Immigration & Naturalization Service, 384 F. 2d 214, 218. It may therefore be that Congress expected the Immigration Serice to include within the § 242 (b) proceeding "all issues which might affect deportation." Ibid. Possibly, as amicus cogently urges, Congress wished to limit petitions to the courts of 14 The Immigration Service has argued that the limiting language in § 106 (a) may be explained by Congress' wish to restrict its appli- cation to deportation cases, preventing its application to questions arising from exclusion proceedings. We have found nothing in the pertinent legislative history that offers meaningful support to this view.

312-243 0 - 69 - 17

216 OCTOBtR TERM, 1967.

Opinion of the Court. 392 U. S.

appeals to situations in which quasi-judicial hearings had been conducted.' 5 It is emough to emphasize that neither of these purposes would be in any fashion impeded by the result we reach today. We hold that the judicial review provisions of § 106 (a) embrace only those deter- rqinations made during a proceeding conducted under § 242 (b), including those determinations made incident to a motion to reopen such proceedings.'" This result is entirely consistent with our opinion in Foti. There, it was repeatedly stated in the opinion of THE CHIEF JUSTICE that the order held reviewable under § 106 (a) had, as the regulations required, been entered in the course of a proceeding conducted under § 242 (b). 375 U. S., at 218, 222-223, 224, 226, 228, 229, 232. It was emphasized that "the administrative discretion to grant a suspension of deportation," the determination involved in Foti, "has historically been consistently exer- cised as an integral part of the proceedings which have led to the issuance of a final deportation order." Id., at 223. A suspension of deportation "must be requested prior to or during the deportation hearing." Ibid. More- over, it was explicitly recognized that, although modifi- cation, of the pertinent regulations might "effectively broaden or narrow the scope of review available in the Courts of Appeals," this was "nothing anomalous." ' 15Note, e. y , the apparent exclusion from § 106 (a) of orders entered tinder 8 U. S. C. § 1282 (b). See generally supra, n. 11. 16 We intimate no views on the possibility that a court of appeals

might have "pendent jurisdiction" over denials of discretionary relief, where it already has before it a petition for review from a proceeding conducted under § 242 (b). See Foti v. Immigration Service, supra, at 227, n. 14. 1 The opinion of the Court emphasized, in addition, that "'[c]learly, changes in administrative procedures may affect the scope and content of various types of agency orders and thus the subject matter embraced in a judicial proceeding to review such (.ders." Id., at 230, n. 16.

CHENG FAN KWOK v. IMMIGRATION SERV. 217

206 Opinion of the Court.

Id., at 229-230. An essential premise of Foti was thus that the applic.tion of § 106 (a) had been limited to orders "made during the same proceedings in which deportability is determined . . . ." Id., at 224. The per curiam opinion in Giova did not take a wider view of § 106 (a). The denial of an application to reopen a deportation proceeding is readily distinguish. able from a denial of a stay of deportation, in which there is no attack upon the deportation order or upon the proceeding in which it was entered. Petitions to reopen, like motions for rehearing or reconsideration, are, as the Immigration Serviee urged in Foti, "intimately and immediately associated" with the final orders they seek to challenge. 8 Thus, petitions to reopen deporta- tion proceedings are governed by the regulations appli- cable to the deportation proceeding itself, and, indeed, are ordinarily presented for disposition to the special inquiry officer who entered the deportation order."9 The result in Giova was thus a logical concomitant of the construction of § 106 (a) reached in Foti; it did not, explicitly or by implication, broaden that construction in any fashion that encompasses this situation. The result we reach today will doubtless mean that, on occasion, the review of denials of discretionary relief will be conducted separately from the review of an order of deportation involving the same alien. Nonetheless, this does not seem an onerous burden, nor is it one that cannot be avoided, at least in large part, by appropriate action of the Immigration Service itself. More impor-

18 Brief for Respondent, No. 28, October Term 1963, at 53. 19 See 8 CFR § 242.22. If, however, the order of the special inquiry officer is appealed to the Board of Immigration Appeals, a subsequent motion to reopen or reconsider is presented to the Board for disposition. Ibid. The motion in Giova was presented to the Board and decided by it.

OCTOBER TERM, 1967.

WHITE, J., dissenting. 392 U. S.

tant, although "there is no table of logarithms for statu- tory construction," 20 it is the result that we believe most consistent both with Congress' intentions and with the terms by which it hhs chosen to express those intentions. Affirmed. ,MR. JUSTICE WHITE, dissenting. If the special inquiry officer had possessed jurisdic- tion to issue a stay order'pending petitioner's efforts to obtain discretionary relief from the District Director, I take it that his denial of the stay, like a refusal to rezopen, would have beehi appealable to the Court of Appeals. But, as I understand it, no stay could have been granted by the hearing officer and it was sought from the District Director as an immediate consequence of there being outstanding a final order of deportation, which, if executed,,- might moot the underlying request for relief from the' District Director. Section 106 doei not limit judicial review in the Court of Appeals to orders entered "iP the course of" §242 (b) proceedings, but extends it to all orders igainst aliens entered "pur- suant" to such proceedings, that is, at least as Webster would have it,* "acting or done in consequence" of the § 242 (b) proceedings. Except for the order of depor- tation, there would have been no occasion or need to seek a stay. It hardly strains congressional intention to give the 'word "pursuant" its ordinary meaning in the English language. If there are reasons based on policy for the Court's contrary conclusion, they are not stated.. I .would reverse the judgment. 20 Frankfurter,, Some Reflections on the Reading of Statutes, supra, at 234. * Merriam-Webster, Webster's New International Dictionary, Sec- ond'Edition, unabridged (1957), defines "pursuant' as: "1. Acting or done in consequence or in prosecution (of anything); hence, agreeable; conformable; following; according . ... "2. That is in. pursuit o, pursuing ...