Francesco Foti, A/K/A Frank Foti v. Immigration and Naturalization Service

LUMBARD, Judge, Chief Before MOORE, CLARK, WATERMAN, KAUFMAN, SMITH, indicate, FRIENDLY, the but extended also'to Judges. variety MARSHALL, withhold- Circuit of HAYS and suspending deportation the which Attorney make, General authorized Judge. is FRIENDLY, Circuit Ng companion this ease and the case of entered who Foti is a resident alien Yen, 796, appro- deemed were country visa seaman’s on a priate for in This banc consideration. leaving years, his stayed illegally for ten determination, has resulted in four Italy. When children in and three wife ju- dissenting, that we have no instituted, proceedings risdiction, majority believing the that al- applied deportability, but he concededhis though way either dif- has its Attorney relief the General for ficulties, is there sufficient reason no Immigration 244(a) of expanding by Congress the words used Nationality Act, 8 U.S.C.A. beyond meaning. their well-understood Attorney provides that “the which discretion, suspend may, in his The text we must construe is § adjust 'deportation the status to Immigration added to the and National- lawfully perma- ity admitted of an alien Act of 1952 in 75 Stat. residence, of the case directs, nent 8 U.S.C.A. 1105a. This ** * depor- person whose (a), by, who procedure prescribed “The opinion At- would, of the in the provisions tation and all the De- of the Act of exceptional and torney General, 29, 1950, (64 result cember as amended Stat. hardship extremely the alien 1129; 961; unusual et Stat. U.S.C. 1031 * * General, seq.),” providing The for review in the courts Officer, through Inquiry ruled Special appeals of certain orders the Fed- qualify a case Commission, that Foti did not eral Communications extremely Secretary hard- “exceptional unusual Agriculture, Federal ground to ship,” no (and predecessors), and therefore Maritime Board its arose, granted Energy Commission, discretion and the exercise permitted Atomic voluntary departure. de- The apply to, “shall and shall be the sole and Im- upheld procedure for, Board cision was exclusive migration seeks Appeals, Foti now view of all final orders of it under to have us review heretofore or hereafter made Sept. 1105a, Act, enacted pursuant 8 U.S.C.A. § aliens within the United States 651, providing for review to administrative 75 Stat. under sec- courts comparable tion Act or of final orders ” * * * brought provisions prior petition for review Act appeals months. six within Immigration Section Nationality Natur- Act Although U.S.C.A. § comprehensive up procedure joins petitioner in sets Service alization deportability jurisdiction, determine the in con- of an ali- urging assume tous 242(b), en. into position taken else- Section new it has trast expressly keyed, statute that we must directs that where, matter is one special inquiry officer “A shall own account. conduct determine juris- upheld proceedings under this section to deter- case heard panel which deportability Judges any alien,” vote, mine the Clark and 2-1a diction great majority detail forming how states done, this shall be Hineks lays procedure dissenting. down that “The im- Because of the writer prescribed shall be the sole so and exclu- consequences of a decision portant determining grant Congressional sive de- recent jurisdic- portability of an alien under exclusive this sec- specification procedural deporta- tion.” This orders of “final immediately safeguards followed limited to such in fact tion” providing 242(c), language that “When a final or- of the statute orders, erally mandatory. However, deportation under administrative der of against any supplemented alien, deportation provi processes the has period of sions contained in have a such and in 242 General shall acts order, Act, by giv provisions date of such six months from the had, judicial Attorney gamut or, if then review General a wide court, discretionary withholding final order of date of the of and dis depar- pensing powers. 243(h), within to effect alien’s Section U.S. * * * ”; 1253(h), ture from the United C.A. States authorizes § him’“to with during may any period deportation be de- the alien hold of alien within “Any 242(d) any country tained. Section adds that United States to in which against alien, opinion subject de- whom a final order of his the alien would be portation (c) physical persecution of to as defined in subsection such section, period heretofore or hereafter is- of time as he deems to be neces outstanding sary sued more than 244(a), has for such reason.” Section months, shall, pending 1254(a), six de- 8 provides eventual § that he U.S.C.A. portation, subject supervision “may, discretion, be to un- suspend deporta in his regulations prescribed adjust der Attor- tion and the status to that of an ney General”, 242(e) imposes lawfully permanent alien admitted for “Any penalty upon categories criminal residence” in five different of deportation final 244(b) whom a order of out- cases.1 Sections (c), 8 U.S. standing by being 1254(b) (c), reason of a member C.A. direct that when Attorney classes” in cer- suspended described General has so paragraphs deportation, tain report Congress. wilful- who he is to ly depart fails refuses Attorney “within a In certain instances the General period of six months from the date of the proceedings is to cancel un Congress final order of under adminis- less a house votes processes, or, trative contrary; deport in others he is to un had, then from passes the date final less a concurrent resolu ” * * * favoring of the court When tion or if either Congress, gave passes favoring the courts house a resolution not jurisdiction Finally suspension. review “final or- 244(e), 8 U.S.C * * * ders 1254(e), Attorney made .A. § authorizes the against aliens within the United States “permit General “in his discretion” to pursuant administrative proceed alien under under section ings,” exceptions, this Act or com- depart with certain “to parable provisions any prior Act,” voluntarily it from the United States * * * using was thus a term of art which had if such alien shall establish to repeatedly been used pos- Attorney 242 and the satisfaction of the General meaning. sessed a well-understood is, been, person good We he and has already decided at least years two such moral character for at least five cases, S., immediately I. Dentico v. N. preceding application F.2d 137 * * (2 1962), Cir. S., voluntary departure Schoeler v. I. N. A (2 306 F.2d 1962), dispensing power, Cir. subject further where a Congressional concurrence, deportation” “final order of is conferred was chal- Refugee by 6 of the Relief lenged, Act of Judge see also fn. 3 to Clark’s amended, U.S.C.A.Appendix, dissenting opinion. 1971d. “prior Act[s],” Under the 39 Stat. 889-890 and 43 Stat. 162 The contrast between these sec deportation, determined, gen- giving Attorney once tions General discre- categories, 1. In the last deportation proceedings up four of these to the time of a condition applying to relief that the alien “has to the General for sus- pension deportation.” not been served with a final order of de portation pursuant issued to this in Act deporta suspend for direct review “final orders to withhold tion deportable, deportation” appeals. be To an alien found tion sure, may relating such orders nearer determination and § procedures pro end in- “The marked. an alien deportability, is prior deportation, but, voke a determination outlined for cedure delegate test, the warrant itself would be or his position though subject “final alien, de order”—a maintained whether Congress, deporta no one. When defined order of portation shall have having by using purpose withheld, matter,” its meaning Mil terma is different practice (3 Bouchard, Cir. well understood in utin v. 1962), repeatedly employed granted judgment va cert. Congress Nationality General, itself, Act must 370 Solicitor consent cated on of meaning— adopted 1562, L.Ed.2d 501 be taken 8 that withholding at least in the of fact, absence the clearest In proof contrary. especially Yet, procedure, outline no suspending sections general since the requiring of the command of the Ad- use let alone judicial by Procedure 242(b), the ministrative Act as to which prescribed § keyed. review, 1009, excepts 5 U.S.C.A. judicial action is § review amendment 1961 by deportabil agency law “is of committed determination a Whereas discretion,” findings it would ity suffi seem in the last de- rest of fact must on gree unlikely Congress speci bring under a meant to re- the alien cient to quire resting law, that a decision provision suspension in all of executive “is fic resting grace, scope any grace,” as to which the matter of a of re- cases Attorney narrow, initially view is so must discretion of re- “unfettered by Jay General”, Boyd, viewed a court of three —a 924, 926, 927, 357-358, 100 form of review of 76 administrative S.Ct. action normally applied solely “quasi-judi- (1956). Nowhere do L.Ed. Withholding agency cial” suspension use sections determinations or made a Act, record inspec- order “final available court’s phrase of tion, only orders to some of those. deportation” characterize although thereunder, use does § made here, Still Service maintains explicit reference to agree, and four of our brothers 242(b); sec these under made § orders a ney the Attor withholding, sus speak instead of tions nothing General to do to interfere cancelling deportation when pending, or deportation,” with a “final order of de dis exercises his General cision to which he free to come with alien, ulti favor of the cretion using procedures 242(b), out § mately deporting he does alien when deportation” itself “final order of made Attorney General refuses When not. pursuant to that section within the mean suspend under to withhold 106(a). argument hinges of § sections, “affirms” the he no more these regulations on administrative and on parole deportation than a board order legislative history. when a conviction or sentence “affirms” adopted, Act 1961 was When the C.F. Jay Boyd, supra; parole, it denies provided 244.1 that “Pursuant R. § fitly can the former action be neither chapter Part section 244 any “ancillary” as more than described special inquiry Act, of the officer in his could be. latter authorize the discretion deportation, as the itself far statute con- an alien’s or authorize So an voluntarily cerned, plain depart it would seem from the thus rather Unit * *” * 242.8(a) General’s Section refusal to ed States respect inquiry special to a officers intervene “final order authorized “to deportability deportation” 242(b) made under to make determine de including provision within cisions Act of act,” Attorney pre- 242(b) happened provided to be section scribing day by variety of other the same format and also to exercise powers. although suspend regulation, prescribe he “to could One these was altogether as, voluntary next, de different one authorize indeed, doing parture he provided 244 of was then section (h). inquiry Moreover, special it is “final orders of act.” Determinations deportation” final, 242. which the under Part 242 were Act makes officers viewable in the courts Board review the save for certain —not any says resulting Thus, use of the Appeals.2 procedure. here, form Cf. United enact the Service when Shaughnessy, States ex rel. Daniman Attor ed 106 in ney it knew that the (2 1954).3 dispensing F.2d General had vested his Cir. special powers under 244 in the same argues that its construc- The Service 242(b), inquiry who, officer under convenient, serve the tion would * * * to “conduct Congressional dealing purpose of alien,” deportability determine the growing frequency “the ac- in have intended to therefore must being ali- tions instituted undesirable by the clude “determination” legal ens whose cases have no basis special inquiry alien officer the brought solely merit, which are among subject the orders made to delaying purpose preventing or in- the of appeals. courts the of definitely deportation their from this Cong., country,” H.R.Rep. follow. not No. 87th “therefore” does To us the Sess., Cong. of Im- 1st & the in U.S. Code Adm. amendment When the migration (1961), Nationality spoke p. of News would com- Act and Congressional proceedings port under sec- a intention “to with “administrative Act,” single, separate, statutory 242(b) it meant admin- create a this form of proceedings judicial re- the Act which review of administrative or- istrative deportation under that quired be conducted sec- ders for the exclusion ” * * * proceedings p. id., tion, for which the aliens 2966. When the not other prescribed thereby deportation,” dealing with the different A 2. withholding requests problem Wong Yang Sung that had led to 1253(h). 243(h), McGrath, § 8 U.S.C.A. S.Ct. § under by special overruling heard in were L.Ed. 616 and its These quiry officer; by Supplemental Appropriation he forwarded a memoran the Act regional 403(a) commissioner who to the 64 Stat. which § dum decision, (47) repealed, § final 8 C.F.R. 243.3 of the 1952 Act turn the made Report, (b) Stat. 280. The House 82nd Cong.2d plain No. Sess. objective makes it opinion 242(b) brother Clark’s that of § stresses the was to es- Our * * * special says inquiry “special procedures the officer tablish proceedings under this sec- of whether “shall conduct the determination or not an * * subject deportability deportation, the to determine tion alien, alien oaths, present proceedings administer and shall are to be conducted evidence, interrogate, special inquiry specially and receive exam- officers qualified ine, cross-examine the or wit- to conduct such and, by by nesses, designated Attorney pur- as authorized Attor- the the General General, provisions ney determinations, bill,” shall make the suant the 1952, p. including Gong. Adm.News, deportation,” ap- & Code drawing parently the inference in the that Con- Not a word discussion of the relief contemplated special 244, pp. provisions 1716-1721, gress of § itself the refers delegated inquiry special inquiry pow- officer would be make to the officers. Such have, determination officers now confided ers as these as to is- Attorney by 243(h) 244, derive, §§ General later under sections. sues delegation language support 242(b), does not but from this —the The Attorney pursuant purpose was to make clear that General the au- the general thority special inquiry permission “in- officer conferred § 103 important pleasure. (a), all can at “final order of which he alter cluded” order, single judg- officer, initially special inquiry attack considered three in a stay es, may obtain an automatic has final order of made a to sus- court 242(b), declined unless directs,” “otherwise under has depar- voluntary despite provision pend it or authorize “nothing 106(a) un- 244 and sec- ture under determinations challenged, require bifurca- tion shall be construed to the At- both sections are der torney General indeed to defer to review tion of inconvenient, road only alien after the of a that were issuance nothing right else because of the that could arise and case granted might tempting to view of way, the order in the this section stood * * scarcely lan- liberties Such a view com- take whatever ports Congressional guage purpose avoid needed to of § expedition. challenge made However, this. neither condition Where the is sim- ply out. refusal to General’s dispensing power, exercise a the Con- very the common This case illustrates gressional purpose would be better although where, determinations situation by leaving served both sections have been deport free to unless district court single special inquiry officer him, halts action that should be rather disposition, deportability was conceded rare in view scope of the narrow of re- challenge is to determi- view, by stretching language than likelihood nation under encompass the review of such orders in decision, case, reversal in such a after appeals, with an automatic Jay supra, Boyd, that “there in nothing stay, particularly when we take ac- into language in the that, count courts, unlike the district Act which to base belief appeals of courts continuously are not give Attorney required a General is to may session be far removed from the hearing up- spread with all the evidence scene of action. open respect on an record with extending Furthermore, jurisdic- our may upon his which bear considerations such tion to would not in fact grant application sus- or denial of an single, separate, statutory “create a form eligible pension to an alien for that 106(a) (5) of review.” Section lief,” p. p. 351 76 S.Ct. U.S. exception; genuine creates one when a given “suspension is not nationality pre- issue United States is deportable right, but, as a con- aliens sented, appeals the court of must “trans- gressional direction, dispensed it is ac- proceedings fer a to United States cording unfettered discretion of court for the district district where the Attorney General,” pp. 357-358, 76 petitioner hearing has his residence for pp. and that S.Ct. the statute nationality de novo claim and de- permits based “decisions matters proceedings termination as originally such record, the administrative outside at initiated the district court would be reason- least when such action provisions under section 2201 of able,” p. p. 927, matters Our opinion 28.” brother Title Clark’s reviewing court a cannot know but which indicates another. After an automatic account, it existence must whose take stay ultimate adverse us, Yet, on the minimal. con- Service’s is struction, deportee, voluntarily unless he de- admittedly deportable an alien parts, although can have another more may, by filing petitioner a fling like limited court, district review, privilege, be corpus, entitled habeas once he taken into de- narrowly confined, having Again, proceeding hitherto tention.5 a in Ng situation argument also the This is Yen 5. unable We are to follow an Service, judicial expansion phrase and Naturalization deportation” F.2d 796. 308 “final orders of in § affirming scarcely a appeals other would under be § court rational. Since regulations deportability amended, a de- then determination have been surely prevent 19, 1961), suspension (Dec. not F.R.. nial will so that the challenging special subsequent inquiry At- a action officer—Board of Immi gration selection, torney Appeals procedure prevails under § al General’s country 1253(a), 243(h). (a), so under question of a not § U.S.C.A. We do power deported. Is be which the alien is to General thus deportation” 243(h), this too a “final order alter the under § then Are reviewable under 106? there be rather an novel that adminis regulation orders,” bring something six when do the trative two “final could 106(a) (1) jurisdiction run? within months start appeals con- than It would more rather less seem not covered language challenge that, Congress not which, venient where the used and having given deportability, proceedings today, Attorney both before away as, dis- can take and after be in the indeed, detention should tomorrow, he especially court, can do trict since the instances under Also there will be enjoin questions will either cases court when 243(h) where the district under will deportation, or a court detention arise after the General has appeal grant stay particular country on an selected will under 243 (a) , may decision, will be exceed- from an adverse be more than six ingly months few.6 after the final (b) . Then there is the case where the urged by the The construction Service grievance reopen refusal to a de sug- difficulties, which encounters portation permit proceeding appli gest dictionary though that even cation filed, be see Wolf fortress, not to made a brothers Boyd, (9 Cir.), 238 F.2d 249 cert. de Congressional reading us, lan- remind nied, S.Ct. 1 L.Ed. guage says, particularly to mean what it 2d 759 Is such an order term, when although has used technical deportation”? “final Again, order of perhaps old-fashioned, denying voluntary what of decisions de altogether always On ill-advised. parture? “pur These also were made here, was the view taken the Service suant to administrative con jurisdiction of the courts conferred on 242(b),” ducted under section 8 C.F.R. appeals only suspension as to of denials 244.1. It seems hard to sustain that an 244(a) under as or denials special inquiry denying order of a officer withholding (h) the 243 ? As suspension 106(a) comes within where regulations Congress acted, it when stood proceeding deny as one made in the same would be hard to latter under sustain the ing voluntary departure not; yet it theory, the Service’s the determina- since quite incredible that meant to made, special inquiry tion was not appeals courts of burden with review of officerwho alone is named in sort, though orders of the latter even regional commissioner; yet the grant voluntary departure means that are con- situations so much alike that a deportation executed, the order of not including excluding struction one and consequent with benefit to the alien. limiting trigger 106(c) is needed to predicate. no factual basis for this scope subsequent corpus; tlie Report habeas The 1961 Annual of the Director apply equally peti- that section would Administrative Office of the United Ng Foti shows, 3, tioners like Yen had sued States Courts Table C that dur- ing year ending district court. the fiscal June 1961 (the complete year last before the 1961 argument effect), for deporta- The the broad construc- took a total Act of 162 rest, tion of seems in con- cases were commenced the district part, prem- siderable on the inarticulate During the Second Circuit. deportation appealed, period ise that all suits are our own same docket stays generally granted. We know cases did not exceed 15. 786 beyond to the torney At- expansion the statute With creating or meaning words General whether to withhold itsof natural suspend voluntary problems, permit construction such a or such require legislative departure, clear evidence as have so But history intent. was perform. narrow function to Report House from the the inferences do we a sufficient Neither find beyond going construction stretching language for in the basis strong as those at least as words are passed the discussion when a similar bill Deputy Gen it. letters Cong.Rec. House in Attorney Gen Deputy eral Walsh and Representative Lindsay concerned was was) and the (as he then White eral given six an months alien testimony Attor Assistant quoted begin seek should not Divi heading ney Criminal any remedy run “if on the ad there is 2968-2970, sion, pp. recommend supra, nature”; ministrative level left of deporta legislation, refer Representative him this Walter assured sense orders in the technical tion Supreme so, was final “The final means upholding their decisions Court Representative administrative order.” Rubinstein, v. reviewability, Brownell charge Lindsay when returned to the 98 L.Ed. .346 U.S. S.Ct. Representative speaking for Moore was Pedreiro, Shaughnessy , (1954) again bill, sought and obtained 99 L.Ed. deporta assurance ‘final “that the words ; no was reference tion order’ not take effect after does until (cid:127)decisions, surely the De known to well question suspen determination of the reviewability dealing partment, Finally, Walter, in a further sion.” Mr. declining suspend deportation,

(cid:127)orders satisfy Lindsay, effort to Mr. added “that Shaugh Accardi United States ex rel. period question the 6th months’ on the 499, 98 L. nessy, S.Ct. 347 U.S. finality applies of an order final Boyd, Jay (1954); Ed. 345, adjudication appli administrative (1956). The Commit S.Ct. just suspension cation for over cases said not tee concerned apply as it would issue Ng Yen’s; “The like Foti’s brought up deportation proceedings.” per immigration is, offense sole whose indicating We read a view do visa, haps, an over defect by Representative Walter that denial of usually accepts stay visitor, extended application was itself departs,” order of appeals. to be in a reviewable court “subver p. 2967. The was over concern Representative Lindsay’s concern was immoral, sives, or narcotic gangsters, challeng period that the ing months’ six gains” “ill-gotten peddlers” use who their order should not start repetitive deportation or resistance to departmental proceedings to run while in Report from the The sentence ders. volving suspension going were still on. quoted Clark seems to our brother Representative Walter’s assurance himto opposite what point to conclusion is a well-founded, was since be it; suppose we should drawn Immigration Appeals fore Board of greater give rights, “the alien desire appeal suspension a on an from denial of security, greater and more assurance of a final toll the date study by experienced his case period close initiates the six months’ which Cong. (1), judges,” 106(a) 6.14, 2 U.S.Code & 8 Adm.News C.F.R. § see also p. 2972, readily Moreover, 106(c). (1961), was more re if even what deport- probative to the determination of is, more latable than said carefully ability, guarded which “as debate, is made in the course of remark piece by only probability, litigation,” heard, in all contentious a few Bouchard, supra, house, years Milutin v. and there two members one something passage, study, final should not thus a bill’s than overcome

787 pra, 358, language. statutory 927, have been at We 76 S.Ct. at as has clear regularly “safaris appropriately done the cases under warned (h), legislative succeed that United States ex documents rel. Dolenz v. into only flushing Shaughnessy, a sen- phrase 392, (2 here and 206 F.2d Cir. 1953); Esperdy, connection Diminich tence there whose v. 299 F.2d best,” (2 at questionable 1961), denied, Cir. will cert. Case, 844, Tampa 1961 Su- Bok, 875, Electric S.Ct. 7 L.Ed.2d 848 Review, Moreover, preme 267, 290. suspension Court since a or with holding dispensing “is a du- such compelling than Much more power, judge’s power like suspend history legislative inferences from bious sentence, execution of a or the Pres mentioned, yet considerations, not are pardon ident’s Judge convict,” L. says 106(a) (4). This arising from § Hand in United States ex rel. Kalou material, exception here that, not with an Shaughnessy, dis v. 489, 180 F.2d the courts review confided (2 1950), quoted Cir. approval determined 106 “shall Jay Boyd, supra, v. at up- solely upon record administrative at 924 fn. rule has been that is based deportation order which may denial not merely be set aside be findings of General’s unsupported “by cause reasonable, sub reasonable, substan- fact, supported stantial, probative evidence on the record tial, probative on the evidence whole,” record as a considered whole, be conclu- shall considered as a “when appro an alien has been denied long applied the standard sive”. This procedural priate process due or a fair deporta- final orders review application,” consideration of his United Congress’ 242(b); direction tion under § Shaughnessy, States ex rel. Moon v. apply appeals should the courts of that (2 1954), F.2d Cir. or where clear evidence rather that standard affirmatively appears “it that the denial only such, orders, and that it was such has been actuated considerations contemplated. by them was whose review Congress could not have intended to make in re- differs from This standard relevant.” United States ex rel. Kaloudis sus- viewing to withhold refusal Shaughnessy, supra; v. United ex States respects, vital deportation in two pend Hintopoulos Shaughnessy, rel. with- already In noted. (2 1956), 708 Cir. aff’d 353 U.S. Attorney Gen- holding proceedings, the (1957). Yet, S.Ct. L.Ed.2d 652 consequently ex- find facts eral withholding denying suspen if orders confiden- basis of on the discretion ercise denying voluntary departure sion or in “the administra- tial information 106(a), been made reviewable must Judicial record.”7 tive possibility pro standard of review must now be account the into take Attorney 106(a) relied on such vided in has unless we are to material, Jay Boyd, surgery apply statute,8 su- further extra-record may apply pre- appropriate. effect, as to the rule In A different it would rewrite § eligibility, liminary see determination to read “the shall Boyd, Jay supra, solely upon at 76 S.Ct. at be determined the administra- record tive except based as At- the insofar consequences Evidently by torney previously per- the disturbed General was position scope its as to the to consider which mitted outside to the ad- facts argues leads, record, 106(a) the Service in its ministrative in lohich event the Ng Immigration in Yen and Nat court take into brief v. shall consideration the Service, possibility may F.2d that uralization 796 that his determination 106(a) (4) pre supported facts, not be read should as be such and the At- scribing torney findings the standard for review in all General’s of fact shall be originally supported by made in if these are reviewable conclusive cases rea- appeals only sonable, probative substantial, but when court evi- requirement any or would have been the standard heretofore dence meet lesser apparently (cid:127)our brothers would. Since it be a model symmetry, Gellhorn & see Congress scarcely supposed Byse, Law, to Administrative Cases (1960), meant to overturn well-established pp. 218-223, Comments was governing principles generally true, review of such Septem- until the Act of (cid:127)orders alien’s substan- and to ber elevate the orders of rights plane independent tive in to the sanie regulatory such cases commissions determining deport- initially .as exists for orders came before courts of three .ability, judges.9 com- this is further rather relating immigration Orders to pelling matters, does not evidence that statute relating like those to naturaliza- tion, to them. security (cid:127)extend social and railroad retire- benefits, ment others, dealing insurance, veterans’ the deci follow Thus we are unable to great with matters of con- Circuit, our cited sions in the Seventh cern affecting to an individual but not Blagaic Flagg, F.2d 623 brothers, v. general public unlikely interest and S., (1962) N. 304 F. v. I. and Roumeliotis important precedential effect, were jurisdiction upholding (1962), .2d 453 by single left to judge, review a district over appeals, in one case the court of conveniently more ties, par- accessible to the refusal withhold General’s ruling might whose appealed if 243(h) in the (cid:127)deportation under § losing side were so advised. Because preference first over denial of (cid:127)other of a departure belief that from this (A), (1) immigrant under § visa unwise, scheme Representative objec Lind- despite 1153(a) (1), 8 U.S.C.A. § say, voting amendment, for the Indeed, ex- made the Service. tions there pressed hope “that the Con- very Judicial far how shows the latter decision of the ference United States will conduct deportation” the “final from orders of early operation review of the of this “ancillary” And phrase will lead. procedure, adopted, in order to make urged grounds triviality on the findings available to us its as to the ad- cases in the Seventh in the two merits viability ministrative provision” here, point to adds Gircuit, in the two as respect appeals, to the courts of Congress not have could belief Cong.Rec. (1959). While the pass require three meant to give courts should full effect to petitions. find more far such We change pattern thorough the Act persuasive well-reason September 26, respect Zupicich Judge opinion Edelstein ed “final deportation,” they should (S.D.N.Y. Esperdy, F.Supp. 574 v. not be Congress astute to attribute to 1962), two called attention to purpose require them also to review in Circuit, Giova decisions the Ninth first instance orders re- Rosenberg, F.2d fusing suspend deporta- or withhold Fong Immigration and Nat Kai Mai permit voluntary departure (1962); Service, uralization 305 F.2d 239 grant visas—a repre- result King Fong that would see Louie Service, sent a further deviation and Naturalization the estab- pattern, go beyond lished the fair Although intendment of the the Federal scheme for words that used, and, by review of administrative orders imposing on the existing enactment this act.” Agriculture the Packers and Stock surgery yards Act, 1921, amended, this too radical We think for a 7 U.S.C.A. perform especially seq., Agri when court 181 et — Perishable operation Act, can need be avoided cultural Commodities simple therapy reading amended, seq. “final 7 U.S.C.A. § 499a et 5 U.S. deportation” 1082(b), hardly to mean “final one; orders of or- C.A. a real un deportation,” Secretary ders of which event § 106 der such acts exercises (a) perfectly. altogether fits functions similar to those of regulatory commission. apparent exception, 9. The sole the review Secretary of certain - n appeals quantity of petitions presenting unexpected by outcome this disturbed impair issue, truly justiciable would no are we. legislation. “viability” the new “the Before we turn to this demonstration petition for want dismissed strong we should note the current of jurisdiction. judicial opinion in and accord with our parties’ view. In this case Senior Judge, CLARK, with whom Circuit Judge compris- Hincks writer' — n Judges WATERMAN, MOORE, and ing assign- Judge Friendly panel n SMITH join (dissenting). petition ed to hear for review— majority have our brethren In our view joined opinion in an affirmance on adopt interpretation of stat- chosen to utory merits; Judge Friendly dissented artificially language is both sought and obtained an order under highly inappropriate to the literal and 46(c) proceedings U.S.C. further doing they situation; have in so actual only judges. in banc before the active legislative purpose and frustrated the Ng panel, consisting In Yen the entire litigants and the courts saddled the Judges Waterman Moore and the complicating, overlapping, and de- with a writer, joined opinion in an also for af- laying deportation re- form of additional firmance on the when we were merits irony that a care- is not without view. It fully proceedings. met for in banc program over formulated fashioned Thus of our court who have simple years by provide divided, equally considered the issue are n complete im- form of this five; only five poorly the accident of a area, comparable provided portant (probably worded statute soon to be cor- agencies, for the other administrative prevents Judge rected) Hincks’ vote from judicial surgery in result under .should being officiallyrecorded.1 Elsewhere adding delay and confusion to exist- support has the view of two well reasoned ing expect of review. As we methods n demonstrate, panels, decisions Seventh Circuit means a this no com- Blagaic Flagg, Cir., v. 304 F.2d pelled are loss un- result and we at a Immigration Roumeliotis v. Nat- why it None derstand has been selected. n Service, Cir., uralization 304 F.2d parties companion or in here Ng Yen, decision, of Ninth have and Circuit 308 F.2d Louie case of n sought Fong Immigration result, King and we v. now seek Natural- n expect surprised they Service, Cir., 191,2 be as will ization 308 F.2d American-Foreign 1. reopen surely See v. United States ju- tion to within our Corp., 685, 690, as, indeed, S.S. we held Dentieo risdiction — referring 4 L.Ed.2d 1491 n. Immigration Naturalization Serv- 46(c), Cir., amendment ice, of 28 U.S.C. difficulty rec 303 F.2d 137 —the appear ommended Judicial long delay. Conference of to concern Ann.Rep. 1105a(a) the United States. 9-10. 8 U.S.C. In See Mai Kai Ann.Rep. Fong See also 1961 and Naturalization Service, Cir., 305 F.2d a similar delay Our brothers also cite two other deci- situation obtained and a like rul- panels, which, sions of Ninth made, based, however, Circuit how- was ever, import are of uncertain already because of two reasons that the matter had adjudicated lack of discussion of the issue before the District Court us. We understand that in at least one for the District Columbia and that time them has been petitioner extended for the failed had to exhaust his ad- filing rehearing. aof In ministrative remedies. Involved Rosenberg, Cir., Giova 347, applications stay denials of for a jurisdiction the court declined to re- held also which were settled the carli- reopen adjudication. view a denial of a motion Alternatively de- er it was portation only ruling pertinent before the Board stated —in here Immigration Appeals n —that where the de- these denials were not reviewable portation deportation; order had been ruling entered over as final orders of years timely four pe- merely earlier. citing Since a the doubtful tition to review such a denial of a mo- without Giova case discussion. provisions accepting question 1952 contained of an a transfer human- without authorizing court, required itarian as nature district from the 87-301, 1105a. General an 5(b) to withhold P.L. U.S.C. § country Immigration Nat- alien ject (See to a where he would be sub- Dentico Cir., physical F.2d Service, persecution, 8 U.S.C. uralization 1253(h), and, specified 137.) from like decisions certain cases are There hardship family, are (to cases himself these to sus- court below pend deportation being adjust, actions presumably new an alien and remitted ruling started), including lawfully a his that of status to one admit- are can orbe permanent residence, dis- ted for heretofore U.S.C. own action in Foti’s 1254(a) (l)-(5). and, As obvious missed.3 indeed, intended, provisions these body strong precedent Against this importance become of the utmost in de- support seek are forced to our brothers cases; portation increasingly an Judge Zu- Edelstein in picich a large cases, applications number of for- D.C.S.D.N.Y., F. Esperdy, withholding suspension apparently Supp. have been made and review of their de- contrary own in his court decisions sought nial has in the Con- courts. note wherein in our ferred sideration of such denials has a: become ruling going judge some- makes a learned major part activity deporta- of our in the way along our broth- traveled what ers, things- from field and the nature of expressly though For not so far. he likely increase rather than other- arising pass upon a case refuses way- wise. For these remedies afford a regulations of the Gen- the new obtaining temporary stay a and under- majority (discussed and in below eral appropriate permanent conditions a sta- enforcing implementing and opinion) a tus resident an who has no- procedure. unitary But so legal ground relief; other the two opinion goes, like it a shows far petitions- cases us here before where the argument, as it starts hiatus necessarily deportability had to admit are legislative intent initial stress good examples importance of the which- system complete develop simple a has relief now as- in the Administrative review, as set forth legislative True, sumed. intent to- 1031-1042, Act, 5 Procedure U.S.C. §§ executive, make this an rather than a- gov- incorporated explicitly our into judicial, function, possible, so far as statute, 1105a(a), as-- erning 8 U.S.C. respect interpretation indeed is attitude proceeds its to im- to an then naught migration generally. sets at the intent matters statute which But even- though judicial easily uncovered. assistance thus is not natural, obtained, it is view why of the- Why this is so and result is stakes, regularly confusing it should be upon ex- will clear become so sought. background. persistently It is not pertinent conceivable- amination Nationality Act known these well facts were not: already juncture opportuni- afford transferred this court Of the eleven cases pass question pursuant ty ju- of P.L. on the of its to our court own present 1105a, appears 87-301, pe- In 8 U.S.C. risdiction. case Foti’s filed, deportability, review was after six involved while tition for dismissal- solely upon consent, five raised either addi action below in the tionally re issues or other District of New York Southern after- Murphy preliminary Judge Esperdy, In had lief. Walters D.C.S.D. refused suspension case, F.Supp. N.Y., injunction ground the Dis- Bryan opin longer jurisdiction Judge wrote a memorandum no had Court of’ trict dizzy- ion and filed Thus Dee. his order of after rather the action. runabout, He now transfer Jan. said in his finds himself Foti back: consent, that, question started, while discussion is not but with where he doubt, yet judgment him. free defendant had enough justify shown transfer at

701 (1961); sophisticated 1st subcommittee known to the 71 Yale 4 Sess. L.J. 760 n. Nationality (1962). strong empasized by and This the legislation given support Judiciary its and proposed House Committee Walter, Representative Chairman, (who who from President Eisenhower called legisla- important for U.S.Cong. sponsored 1957, its all the enactment in 1956 and 2 be Adm.News, supra, 2967, And it would & tion in field. legisla- 2968) through Department strange, indeed, 1961 if in their of Jus (Letters they conspicuously Deputy Attorney omit- tice tion to review Gen vastly any provision im- eral Deputy Attorney Walsh now ted portant for this and Gen era] litigation. White, deportation 30, aspect 1959, April March and 18, 1961, U.S.Cong. Adm.News, & su legisla Actually history pra, 2968-2969) to the Judicial Con conclusively pretty there that tion shows States, ference the United which en Improvement in omission. was no such dorsed the various bills on several occa been review had the form of Ann.Rep. sions. 1959 of the Proceed time. As for under consideration some ings of 8; the Jud.Conf. of the U.S. early had as 1954 the Ann.Rep. 30, 31; Ann.Rep. 18, legislation proposed even to that similar (meetings Sept. of March and passed tually passed, in fact bills 1961)4 1958, 1959, in 1961. and earlier House in history perceptive legislative in a The committees, recogniz- is traced This right 'Comment, Deportation Exclusion: corpus of habeas Dialogue Continuing preserved, Con must A between as it is in 8 U.S.C. gress 1105a(a) Courts, Yale L.J. 760- steps reasonably took legislative designed carry In all the ac out their intent con- ’ tivity expressed purpose preservation. there was sistent with this Thus the existing reducing complicated pro provides statute that no or- system simple direct re der shall cedure to be reviewed unless the alien power, by the courts with decisive has exhausted view his administrative reme- namely, appeals. dies, every petition courts of Particu for review or larly prevent corpus was the need to stressed for habeas must state whether existing long delays possible upheld the procedure any prior the order had been judicial “by repetitive proceedings, and, so, if the cir- busy Rep. cumstances, overworked courts.” H. R. petition and that no such Aug. Cong., Sess., No. 87th 1st if shall be entertained the order’s validi- Cong. accompany ty any prior S. ju- had been sustained (1961) 2950, 2967, proceeding & Adm. News presents dicial unless it Rep. Cong., grounds R. also H. No. 87th see which the court finds could Ann.Rep. based, see 1959 8: Tims was findings General’s “(3) Congress, supported H.R. 86th fact, to au reason- type judicial able, probative a neio thorize substantial evidence deporta administrative whole, on the record considered as a States, right aliens the United tion would conclusive. The except which, custody, custody petition aliens alien in for a writ proposal corpus preserved. ivould he exclusive. —This of habeas would be permit an alien to file Committees [on The Court Administra- of a the review in a tion and Revision of the Laws] stated Appeals proposal away States Court of United within is intended to do delays from the date months of the final or six which heretofore had been doing, implements repeated litiga- In so the bill as a der. encountered result applies deportation proceedings, Section 10 the Administrative some of Act, and, excep many Procedure some which had been carried on for tions, years. makes the Hobbs On recommendation of the Com- (5 seq.) applicable mittees, approved 1031 et Act U.S.C. the Conference review of orders. bill.” upon reports The review would be had ad later cited referred back to approval. record ministrative which the order and reiterated this pro- presented applications all have ceedings earlier these remedy inadequate considering, relief we are now (d) validity the 242.17 application provides: the as “An or ineffective to test now amended order, 1105a(c). e., All review 8 U.S.C. under this section § [i. all upon types the administrative record various must be the re Attorney specified] lief an before General unless here the shall be made during hearing the not frivolous is as issue which is nationality, shall not be held may alienage be re- when the case constitute concession of or hearing deportability de court for to a district mitted case in which the respondent fact, alienage- this issue does not novo on U.S.C. admit his deportability.” (5). or 1105a(a) (4) (Italics And a limitation is supplied.) And upon petitions spe six 242.18 review of the decision set inquiry depor- required cial from date of the final officer is months the to include- a discussion order or the effective date the tation evidence find ings 1961). (Oct. 26, deportability as to 8 U.S.C. 1105 statute and of the evi pertinent (1). a(a) dence application for- discretionary relief under 242.17 and' legislation carefully devised This granting the reasons for denying or the1 existing already law upon superimposed relief. “The decision shall be conclud departmental for extensive providing ed special with the inquiry order of the hearing under hearings officers before officer.” regulations procedure in accordance Attorney recog Thus the General has General. prescribed the to be unitary nized and reenforced the na prescribed the shall be procedure so “The deportation proceed ture the entire for determi and exclusive sole regulations ing in which have the alien.” 8 force ning deportability an the showing effect of law. United ex the States rel. As U.S.C. § Shaughnessy, Accardi v. inquiry on the offi limitation absence 98 L.Ed. authority Obvi first sentence of this the cer’s ously special significant: it be most in will difficult and in “A subdivision quiry disentangle up' proceedings convenient divide shall conduct officer inquiry officer’sone de the to determine the and or under section * * * may subjected and, any alien, so that it der portability to dif piecemeal Attorney General, forms ferent review. authorized Our including suggestion determinations, or brothers have no make shall how supplied.) difficulty (Italics deportation.” will be met. ders of There are- 1252(b).5 they au Pursuant other difficulties do not 8 U.S.C. discuss aris thority given, General has the six months’ time limita regulations providing adopted requirement in detail tion and the that all ad proceedings before for the initiation ministrative remedies be Sup satisfied. through special inquiry pose against officer down an deporta whom a appeal Board of tion order has been entered wishes to- carefully safeguarding Appeals reopening seek its for the considera rights procedural of the alien. 8 CFR tion of some new evidence and also to 242.17, seq. 242.8 and et Sees. hardship 242.1 ask for According relief. to- adopted provisions just and extended amend in 1957 discussed he must ask give inquiry together of Dee. ment for both filing and before pe authority to hear and review, though full determine ficer tition for meanwhile the.- doubly significant provisions make These but not more than one. U.S.C. 1105a(a) (2). Obviously new for review venue of the legisla- in which ad- parts “in circuit tive committees knew the into proceedings spe- ministrative may inquiry implication officer were conducted in cial divide. And unitary single of a part” (italics supplied), icliole review is obvious. petitioner’s circuit of the in the residence. n sixmonths’ thus, appar- in a denial period realistic sense the of limitation stay part running is a order.” ently His situa- him. precarious. 71 Yale See well be finally Our “old- brothers resort (1962) and extract L.J. 762-764 fashioned,” hoary illusory, prin quoted Of in note 7 therefrom infra. “reading Congressional language ciple of difficulties arise none these course says.” to mean one what “But it is supporting. view we are de the surest a mature and indexes of veloped jurisprudence interpretation to make which our brothers dictionary,” necessary four fortress out said our rests at bottom find great colleague statutory words, viz., late Hand in a “final orders of Learned only analysis Markham, deportation,” passage, in is famous last Cabell v. n Cir., 737, 739, interpretation quoted an 148 F.2d in of “final.”6 This Mark phrase (a) Cabell, 404, 409, in ham 326 U.S. S. occurs 1105a U.S.C. § referring 1252(b), 165, affirming Ct. back to 8 U.S.C. L.Ed. already we There which have is below. This admonition seems cited. nothing particularly point in in latter statute which ex- as to matters this pressly procedural detail, interpretation which excludes we are a means rigid make; it, support end there is for to an indeed where formalism tends to purpose, .as their have Moreover we believe defeat own we not stated. analogies practicalities end in and natural Here announced themselves. point way. principle meaningless. Involved here are deci- seems It is stay layman applications suspend personal on sions doubtful experience without if operation deportation “deporta would order. know what signifies; application legally a like When is made to tion” if as had he judgment” ordinary knowledge, hardly a “final in an he civil would assume that n action, judgment naturally stayed “proceedings” an end at disposed application important until the 73(a); steps now of. F.R. so dis to secure begun. cretionary and see Leishman v. Associated relief And we are pointed lawyer Co., out, a final Wholesale Electric judgment does mean not what it is here S.Ct. 87 L.Ed. 714. As is well un- made to mean. Our brothers also refer derstood, here included are a wide va- variety makeweight considera riety motions, such as those to make part tions which for not the most are n oramend findings, to alter and amend established and even established would judgment, for a new trial. Con- weigh against Congressional in sideration of these motions does not im- given figures tent. We are no as to the pugn regard finality the settled litigation, present prospec volume of judgments procedure; civil it is in- tive; delay easily in view the now so deed statutory difficult under the lan- by pressing steps to be secured under the guage practical and even more under the upon us, divided here forced (cid:127)compulsion present of all the circum- hardly it seems doubtful but our why analogy .stances to see is not appellate sharply increased, work will be persuasive Perhaps here. the situation rather than otherwise. Whatever nu neatly put could legal not be principle may distinguish more than in the ances of following quotation Blagaic order of Flagg, supra, Cir., 625: from that of denials re withholding “If the certainly experienced lief, circuit granted, petitioner (cid:127)not deported; easily will work out the law en- where is, indeed, compulsion If deportation. But, commanding there in this warrant phrase, press word or presumably it would seem to because the obvious un- opposite workability meaning general direction from that taken brothers, namely, really setting, appears sup- our statutory ul one no step, timate port the issuance of the final this view. way suspension,” tion of with the ultimate try has to their court himself agency statement of Walter where Chairman review as ques- period “that the by appeal district 6 months’ from the has been give finality applies “the tion of of an order desire to court. And the security, adjudication greater greater rights, the final administrative study application of of the a close of de- more assurance judges,” portation just apply experienced as it would his ease Cong. & Adm.News brought up issue apply now to the orders seem to as much proceedings.” Cong.Rec. It under consideration as to others onwas this assurance bill was. they great passed. importance that literally view of the Here must words proceedings. they now have in mean say, what as an informed quite unpersuasive. All seems concludes, commentator 71 Yale L.J. 760, 763, (1962),7 764 n. 20 and we are- legislative referred We have accept content to and act on this view. convincing as to history, re stating. yet But attempt are view we Indeed dull brothers’ quite con is impact enlightening item which one counted is the these legislative That they intent. sponses decidedly as to the clusive forced. is Thus the avoiding when colloquy legislators the floor imply is the were that the legislation in passed House difficulty the imposed the of the statute of by fairly recounted colloquy holding by That the six months’' limitations period they although opinion, filing only petition in their brothers for the review meaning and ef attempt filing its suspended by discredit to or erased the of the discrediting does not application But such fect. That relief. participants: legislators said; possible. Recall the seem is far from what the legislative Walter, leader statutory the Chairman a inter- results such area; com assistant and surely pretation in all this be dubious Moore; Congressman reporter, example mittee bizarre. in- Consider the Rep questions, and, asking important filing joint the stanced a mo- above of a thorough Lindsay, who was resentative reopen application dis- tion cretionary having problem ly cognizant seen, of the de- we have relief. As Jay government represented go the to the court must nial motion the L. Boyd, 100 351 appeals, Dentieo v. controlling now case Cir., 1242—-the supra, Ed. Service, Naturalization type Re of orders. of this application while denial of F.2d repeated assurances call also for district court now reserved to be admin long “The order final final means action. are How “ order,” abeyance procedural ‘final de and that the these istrative be held in steps? applica- portation Suppose does not motion and order’ take effect day expiration ques- before the of the are filed a until after determination finality. During (1), the House H.R. administrative 75 Stat. 651 “Section Cong., (a) (1901), (1) (Supp. H.R. 86th 1st 1105a debate on 8 U.S.C.A. Representative author, (1959), 1961). allows six Sess. H.R. 187 months reporter, Rep- Walter, the committee final tlie date of the agreed Moore, bring to a statement a resentative for review. Lindsay Representative ‘if when there an order be The determination always remedy important on the administrative level final has comes any nature, or- left of because of the need to exhaust adminis seeking be considered final.’ will not der trative remedies Cong.Rec. (1959). requirement review, It was a retained in section (c) bill, after ‘final’ meant stated that deter- 75 Stat. 653 U.S. deportation. (Supp.1961). (c) mination 1105a de C.A. The ”* * * finality L.J. 71 Tale Ibid. vital termination (1962). n. statute of limita the combination requirement exhausting tions entry legislative the de- sterner of six months after 71 Yale L.J. view. portation not determined may, order and are Be that as it is for, year. say, hard alien then still Does see how humanitarian reasons petition? can have time be to file his review resorted to here to mean- limit the ing only so, statutory If does he six months In enactments. view day unusually distinguished should support, which to act? And when above, legislation brought cited he institute court action? his district which the out, matters, surely fairness we On these in all where must hesitate certain expression actually have clear it is should inimical to the inter- timely warning rights, of and ests of as to his aliens. And we cannot shut our eyes hopelessly vigorous, the answers would left ob- bitter, debate, even delay opportunities scure. And within and without the halls of special treatment if the alien times 1961 as to provi- whether the review shrewdly his moves obvious. sions of are the act hardship created undue for the thorough alien.8 After such a guess- no Again our brothers —-with legislators charged consideration knowledge few mem- real —that major with the responsibility in the present hear House bers premises, question it is a how far the propriety colloquy. question the We knight- assume role of impugn attempting the ac- thus errant to correct assumed unfairnesses. government; arm of tion of a co-ordinate pos- even event the observation question press- becomes the more pertinence to sibly has little well based see the when we increased confusion not settled this debate Had the issue. litigants labor the courts and legislators, question it would for the impending appreciate now again in surely raised have been statutory one clear result of the reform years debate on of strenuous final two amputation under court is now legislation portions before- other delay year surely add extensive —of Thus enacted. the statute already delaying procedure. more —to an suggested very answers weakness of alien, it a Is boon doomed eventual- point prove the col- as to tends to ly gain deported, to be some more time loquy itself. hang while the doom continues to over perceive yet the rea- perceive prac- Hence it is difficult ? him And we no other why narrowing have chosen the our brothers sons tical reason for the construc- they press. adopt and now It has view remedial statute here advanced. continuing statutory de- purpose there is Hence we think the been said that Congress and the courts should be carried out. bate between We believe we legis- immigration nationality adjudicate jurisdiction over Foti’s lation, pressing proceed latter the hu- on the merits and with the should approach do so. manitarian with full with the contention that 8. This is recounted citations the act will af- chiefly 760 n. 762 nn. 2-4 aliens with Yale fect limited L.J. resources. many opposed is said that are references debate in It those Included weekly Republic involving finally Rep- to vote for New induced Conference Walter, Report Assistant because of their desire to resentative achieve Katzenbach, editors, orphan program passage of the alien finally provisions coming question, humanitarian “Did which had Misrepresent original Republic Francis added bill. Wal- Ibid. New Of Objection possibilities chiefly the additional Bill?” centered course de- ter’s lay present afforded under increased cost inconvenience of give opportunities review, applying increased to a court of will for liti- gation to aliens of the short statute means. and on of limitations.

Case Details

Case Name: Francesco Foti, A/K/A Frank Foti v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 21, 1962

Citation: 308 F.2d 779

Docket Number: 27345_1

Court Abbreviation: 2d Cir.