INS v. Stanisic, 395 U.S. 62 (1969)
Linked as:
Text
U.S. Supreme Court IMMIGRATION SERVICE v. STANISIC, 395 U.S. 62 (1969) 395 U.S. 62
[Page 395 U.S. 62, 63]
Court on the basis of their previous determinations rejected respondent's renewed claim for a 242 (b) hearing. The Court of Appeals reversed, holding that the matter was not res judicata because those determinations were based on the premise that respondent's ship was still in port; now, however, the ship had departed and respondent had still not been deported. The court concluded that 252 (b) only authorized respondent's "summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before [his] vessel departed," and held that respondent was entitled to a de novo hearing under 242 (b). Held:
[Page 395 U.S. 62, 64]
Edward J. Ennis and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals sustained the respondent crewman's contention that he must be heard by a special inquiry officer[Footnote 1] in a proceeding conducted under 242 (b) of the Immigration and Nationality Act.[Footnote 2] Petitioner, the
[Page 395 U.S. 62, 65]
Immigration and Naturalization Service, argues that respondent's claim was properly heard and determined by a district director.[Footnote 3] We brought the case here,
[Page 395 U.S. 62, 66]
satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived." Ibid.
On January 6, 1965, while on shore leave, respondent appeared at the Portland, Oregon, office of the Immigration and Naturalization Service. He claimed that he feared persecution upon return to Yugoslavia, and he flatly stated that he would not return to the M/V Sumadija. On the basis of the latter statement, and in accordance with 252 (b) of the Act, the District Director revoked respondent's landing permit. Section 252 (b) provides:
"[A]ny immigration officer may, in his discretion, if he determines that an alien . . . does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a) (1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such
[Page 395 U.S. 62, 67]
vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States . . . Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to [sic] cases falling within the provisions of this subsection."
Section 252 (b) makes no express exception for an alien whose deportation would subject him to persecution. However, 243 (h) permits the Attorney General to withhold the deportation of any alien to a country in which he would be subject to persecution, and analogously, 8 CFR 253.1 (e) then provided:[Footnote 5]
[Page 395 U.S. 62, 68]
by a special inquiry officer in accordance with the general provisions of 242 (b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.
Respondent immediately sought relief in the United States District Court for the District of Oregon,[Footnote 6] which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent's claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent "has [not] shown that he would be physically persecuted if he were to return to Yugoslavia." Appendix 22.
On respondent's supplemental pleadings, the District Court held that the District Director's findings were supported by the record. The court rejected respondent's claim that he was entitled to a 242 (b) hearing before a special inquiry officer, relying on the last sentence of 252 (b), which provides: "Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection." Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113 (1965).
[Page 395 U.S. 62, 69]
The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.
The Court of Appeals for the Ninth Circuit reversed, Stanisic v. Immigration Service, 393 F.2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director's adverse determination in 1965, and the District Court's unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port;[Footnote 7] but now the ship had long since sailed, and respondent still had not been deported. The court held that 252 (b) only authorized respondent's "summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before . . . [his] vessel departed." 393 F.2d, at 542-543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director's 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under 242 (b) of the Act. II. At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable - something never contested by
[Page 395 U.S. 62, 70]
respondent - and a determination whether to grant political asylum to an otherwise properly deportable alien.
Section 242 (b) provides a generally applicable procedure "for determining the deportability of an alien . . . ." Section 252 (b) provides a specific procedure for the deportation of alien crewmen holding D-1 landing permits. Neither of these sections is concerned with the granting of asylum.
Relief from persecution, on the other hand, is governed by 212 (d) (5) and 243 (h). The former section authorizes the Attorney General, in his discretion, to
"parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States . . . ."
The latter authorizes the Attorney General
"to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason."
No statute prescribes by what delegate of the Attorney General, or pursuant to what procedure, relief shall be granted under these provisions. By regulation, the decision to grant parole pursuant to 212 (d) (5) rests with a district director, 8 CFR 212.5 (a), 253.2; and by regulation, the decision to withhold deportation of most aliens pursuant to 243 (h) is presently made by a special inquiry officer.[Footnote 8]
[Page 395 U.S. 62, 71]
Prior to 1960, no regulation provided relief to an alien crewman whose D-1 landing permit was revoked but who claimed that return to his country would subject him to persecution. In Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), a district court held that a crewman in this situation was entitled to be heard. The Service responded by promulgating 8 CFR 253.1 (e), supra, at 67, the regulation which it applied in the case at bar. 8 CFR 253.1 (e) is a hybrid. The grounds for relief are, for present purposes, identical to those of 243 (h) of the Act.[Footnote 9] However, because the Service adheres to the view that a crewman whose D-1 permit has been revoked is not "within the United States" in the technical sense of that phrase, see Leng May Ma v. Barber, 357 U.S. 185 (1958), it terms the relief "parole" into the United States rather than "withholding deportation." Whatever terminological and conceptual differences may exist, the substance of the relief is the same.[Footnote 10]
[Page 395 U.S. 62, 72]
of the vessel renders 252 (b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR 253.1 (e) likewise becomes inapplicable.
Section 253.1 (e) applies, however, to "[a]ny alien crewman . . . whose conditional landing permit issued under 252.1 (d) (1) [of 8 CFR] . . . is revoked" - precisely respondent's situation - and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E. g., Kordic v. Esperdy, 386 F.2d 232 (1967); Glavic v. Beechie, 225 F. Supp. 24 (1963), aff'd, 340 F.2d 91 (1964). "[T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 414 (1945).
[Page 395 U.S. 62, 73]
242 (b) hearing on his request for asylum was coextensive with his right to a 242 (b) hearing on his statutory deportability, and the case was argued here primarily on that basis. For the balance of the opinion we thus make, arguendo, the same assumption. We conclude, contrary to the court below, that an alien crewman may properly be deported pursuant to 252(b) even after his ship has sailed. A. Section 242 (b) of the Immigration and Nationality Act provides a generally applicable administrative procedure pursuant to which a special inquiry officer determines whether an alien is deportable. See nn. 1 and 2, supra.
The history of 252 (b)'s narrow exception to the 242 (b) deportation procedure is found in the Report of the Senate Committee on the Judiciary, S. Rep. No. 1515, 81st Cong., 2d Sess., which preceded the enactment of the Immigration and Nationality Act. Alien crewmen had traditionally been granted the privilege of temporary admission or shore leave "because of the necessity of freeing international commerce from unnecessary barriers and considerations of comity with other nations . . . ." Id., at 546. A serious problem was created, however, by alien crewmen who deserted their ships and secreted themselves in the United States. The Committee found that:
"[T]he temporary `shore leave' admission of alien seamen who remain illegally constitutes one of the most important loopholes in our whole system of restriction and control of the entry of aliens into the United States. The efforts to apprehend these alien seamen for deportation are encumbered by many technicalities invoked in behalf of the alien seamen
[Page 395 U.S. 62, 74]
and create conditions incident to enforcement of the laws which have troubled the authorities for many years." Id., at 550.
To ameliorate this problem, the Committee recommended that:
"Authority should be granted to immigration officers in a case where the alien crewman intends to depart on the same vessel on which he arrived, upon a satisfactory finding that an alien is not a bona fide crewman, to revoke the permission to land temporarily, to take the alien into custody, and to require the master of the vessel on which he arrived to detain him and remove him from the country." Id., at 558.
Unlike 242 (b), 252 (b) does not prescribe the procedures governing the determination of the crewman's deportability, nor does it confine that determination to a special inquiry officer. B. As the Court of Appeals noted, the 252 (b) procedure governs a narrow range of cases only. It is entirely inapplicable to persons other than alien crewmen. It does not apply to an alien crewman who enters the United States illegally without obtaining any landing permit at all, or who enters on a "D-2" permit allowing him to depart on a different vessel. See n. 4, supra. The Service has held 252 (b) to be inapplicable even to a crewman issued a D-1 permit unless formal revocation - as distinguished from actual deportation - takes place before his vessel leaves American shores.[Footnote 11] Matter of M____, 5 I. & N. Dec. 127 (1953); 8 CFR 252.2; see
[Page 395 U.S. 62, 75]
Cheng Fan Kwok v. Immigration Service, 392 U.S. 206, 207 (1968).
Section 252 (b) most plainly governs the situation in which a D-1 landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port,[Footnote 12] so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman's deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him,[Footnote 13] and to the Service.
That this is not the only situation to which the 252 (b) procedure applies, however, is evident from the language of 252 (b) itself and the related provisions of 254.[Footnote 14] Section 252 (b) requires that where an alien crewman's landing permit is revoked his transportation company must detain him aboard the vessel on which he arrived, and deport him. Section 254 (a) imposes a fine on the company and ship's master, inter alia,
[Page 395 U.S. 62, 76]
for failure to detain or deport the crewman "if required to do so by an immigration officer." However, 252 (b)'s requirement is modified by the term, "if practicable"; and 254 (c) correlatively provides:
"If the Attorney General finds that deportation of an alien crewman . . . on the vessel or aircraft on which he arrived is impracticable or impossible, or would cause undue hardship to such alien crewman, he may cause the alien crewman to be deported from the port of arrival or any other port on another vessel or aircraft of the same transportation line, unless the Attorney General finds this to be impracticable."
These provisions contemplate that an alien crewman whose temporary landing permit is revoked pursuant to 252 (b) may be deported on a vessel other than the one on which he arrived. The other vessel should preferably be one owned by the transportation company which brought him to the United States,[Footnote 15] but if this is not feasible, the Attorney General may order him deported by other means, at the company's expense.
The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that 254 (c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed.[Footnote 16] From this it concluded that "the section
[Page 395 U.S. 62, 77]
contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port . . . ." 393 F.2d, at 546. Since arrangements for respondent's deportation had not been made before the M/V Sumadija departed, the 254 (c), and hence the 252 (b), procedures were no longer applicable: with the ship's departure, respondent became entitled to a hearing pursuant to 242 (b).
We agree that the "clearance" provision of 254 (c) contemplates that the crewman's departure on another vessel may sometimes be accomplished or arranged before the vessel that brought him departs. If, however, the crewman's vessel sails before its owner has paid or guaranteed the expenses of deportation, the owner's liability under 254 (c) is in no way diminished. The Government has merely lost a useful means of compelling payment of costs which may still be collected by other methods.[Footnote 17] Indeed, as the Court of Appeals itself noted, 254 (c)'s financial responsibility provision is not limited to instances of deportation pursuant to 252 (b), but applies to the deportation of alien crewmen in a variety of situations, including those in which a 242 (b) proceeding has been held, and thus those in which the crewman's vessel may long since have departed.[Footnote 18]
[Page 395 U.S. 62, 78]
abort upon the departure of the crewman's vessel. If the crewman whose landing permit has been revoked pursuant to 252 (b) attacks the district director's action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities[Footnote 19] may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit's construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman's vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard.
[Page 395 U.S. 62, 79]
may provide - as he did in 8 CFR 253.1 (e), now 8 CFR 253.1 (f) - that the crewman's request for political asylum be heard by a district director of the Immigration and Naturalization Service. IV. At the time of respondent's January 1965 hearing before the District Director, 243 (h) of the Immigration and Nationality Act provided:
"The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution . . . ."[Footnote 20] (Emphasis added.)
By the Act of October 3, 1965, 11 (f), 79 Stat. 918, this section was amended by substituting for "physical persecution" the phrase "persecution on account of race, religion, or political opinion." Although 8 CFR 253.1 (e), the regulation under which respondent's 1965 hearing was conducted, did not itself contain any restriction to "physical persecution," it is apparent from the District Director's findings that he read such a limitation into the regulation.[Footnote 21]
We believe, therefore, that it is appropriate that respondent be given a new hearing before the District Director under the appropriate standard, and we remand the case for that purpose.[Footnote 22]
[Page 395 U.S. 62, 66]
nonimmigrant . . . and is otherwise admissible and has agreed to accept such permit, he may, in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b), and 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 or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived; or
"(2) twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived."
"D-1" and "D-2" landing permits are permits issued pursuant to 8 CFR 252.1 (d) (1) and 252.1 (d) (2), which implement 252 (a) (1) and 252 (a) (2) of the Act.
Footnote 5 26 Fed. Reg. 11797 (December 8, 1961). Effective March 22, 1967, the section was amended and redesignated 253.1 (f), 32 Fed. Reg. 4341-4342.
Footnote 6 Because the District Director's determination was not pursuant to 242 (b), the District Court had jurisdiction to review his action. See Cheng Fan Kwok v. Immigration Service, (1968); Stanisic v. Immigration Service, 393 F.2d 539, 542 (1968); Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113, 115-117 (1965); 5 U.S.C. 1009.
[Page 395 U.S. 62, 82]
of witnesses. Indeed, 252 (b) apparently does not require that the alien be given any hearing at all but would seem to authorize an immigration officer to order immediate arrest and summary deportation on the basis of any information coming to him in any way at any time. The question before the Court is therefore not the apparently insignificant question suggested by the Court's opinion - namely, whether this alien's case was properly determined by an official with one title, "District Director," rather than another title, "special inquiry officer." Instead, the question is the crucially significant one whether an alien seaman about to be forced to leave the country is entitled under the circumstances of this case to the benefit of safeguards that were carefully provided by Congress to insure greater fairness and reliability in deportation proceedings.
The regulations relied on by the Court in Part II of its opinion do not provide an independent basis for its holding. Among the relevant regulations,
[Page 395 U.S. 62, 84]
Director was made, and therefore the only justification for the fast but ordinarily less desirable procedure of 252 (b) no longer existed. The Court of Appeals held that 252 (b) proceedings were authorized only prior to the departure of the ship. I agree with the Court of Appeals. As that court noted in its opinion:
"The section [252 (b)] exception [to the general procedural requirements of 242 (b)] is very narrowly drawn. It does not apply to the deportation of crewmen who have `jumped ship' and entered the United States illegally, with no permit at all. As noted above, it does not apply to crewmen issued landing permits authorizing them to depart on vessels other than those on which they arrived. It does not apply to crewmen who have overstayed the twenty-nine day leave period without revocation of their landing permits. It does not apply to crewmen who were to leave on the vessel on which they arrived if their vessels have departed before their landing permits are revoked. In all of these situations crewmen may be deported only in accordance with [ 242 (b)] procedures." 393 F.2d 539, 544.
As the legislative history of the Act, quoted in the opinion of the Court of Appeals, shows, the special truncated procedure of 252 (b) was intended to be used only when the need for speed was truly pressing - when the ship was about to leave port. But the seaman in this case was subjected to this truncated, summary procedure even though his ship had already gone and the need for haste in completing these important legal proceedings no longer existed. There is no reason to suspect that Congress wanted a seaman to be deprived under these circumstances of the vital procedural safeguards so carefully specified in 242 (b) of the Act.
I would affirm the judgment of the Court of Appeals.
[Footnote 1] Section 242 (b) provides as follows:
[Page 395 U.S. 62, 81]
with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that -
"(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
"(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
"(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and
"(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
"The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section."
[Footnote 2] Section 252 (b) provides as follows:
[Page 395 U.S. 62, 85]
Sponsored links
This document cites
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 252.1 - Examination of crewmen.
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 252.2 - Revocation of conditional landing permits; removal.
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 253.1 - Parole.
- Code of Federal Regulations - Title 8: Aliens and Nationality - 8 CFR 212.5 - Parole of aliens into the United States.
- U.S. Supreme Court - Cheng Fan Kwok v. INS, 392 U.S. 206 (1968)
See other documents that cite the same legislation
