FOTI v. IMMIGRATION SERVICE

Argument of James J. Cally

Chief Justice Earl Warren: Number 28, Francesco Foti versus Immigration and Naturalization Service.

Mr. Cally.

Mr. James J. Cally: Mr. Chief Justice, members of the Court.

There is really only one issue here involved and that issue sirs is whether or not the Circuit Court of Appeals for the Second Circuit had jurisdiction to review the orders of the Special Enquiry Officer as authorized by the Attorney General of the United States to be made in certain cases and situations.

Sometime in September, on September the 26th, 1961, Congress passed the legislation, thereby empowering we believe the Circuit Court to rule and review on these matters which have been made final administratively as far as a special enquiry officer is concerned, and then to the Board of Immigration of Appeals in Washington where they have the last say administratively as far as a person is concerned.

In this sense, that matter was done and thereafter in a declaratory judgment the matter was taken to the United States District Court for the Southern District of New York.

The Judge there hearing the matter said I am sorry, we have no, we no longer have jurisdiction.

Jurisdiction now lies with the Circuit Court of Appeals.

So we pursued to the Circuit Court of Appeals and the Circuit Court of Appeals ruled that we did not have the, that they did not have jurisdiction under Section 106 of Immigration Nationality Act or 8 U.S.C., Section 1105a, which is entitled, “Judicial review of orders of deportation and exclusion,” and the words to which they take exception to are “Judicial review of all final orders of deportation.”

Those are the magic words which they say does not encompass.

This case and therefore is without the orbit of their jurisdiction.

It is our contention sirs, that there is jurisdiction, that there is an outstanding order of deportation even though the issuance of their warrant maybe stayed and that there are certain graces which maybe greater among which are suspension of deportation or a voluntary departure, if executed within the time allocated by the administrative officer.

Chief Justice Earl Warren: Mr. Cally would you mind telling us this?

I understand that that the government concedes this case should be reversed and should go back to the Court of Appeals, would you mind telling us exactly what your difference is with the government in this case?

Mr. James J. Cally: Well there actually is no difference Mr. Chief Justice.

There isn't any difference.

We say that the Circuit Court of Appeals should hand down a decision on this matter, as is the government's contention.

We say that in the Seventh Circuit and in the Ninth Circuit, they have ruled on this matter already in the affirmative saying that they do have jurisdiction and in the Lower Court, the District Court for the Southern District of New York, Mr. Justice (Inaudible) in their two cases I believe in the Zupicich case and in the Jova case was in the Ninth District, have also ruled in the district that they do not have jurisdiction, that the jurisdiction properly belongs in the Circuit Court of Appeals for the second -- and to that effect the government does not disagree with us.

The government says yes, we agree with you, let's have that Court give us a ruling on the facts as we submit them.

Chief Justice Earl Warren: Well, we don't really have a much reply here, have we?

Mr. James J. Cally: No Mr. Chief Justice.

Justice Arthur J. Goldberg: (Inaudible)

Mr. James J. Cally: Mr. Justice Goldberg that is a debatable question.

I won't go into that at this moment.

There is legislation as you very properly put and adequately that it was passed which indicates that a seaman who came and over stayed his leave in this country can no longer have any of these privileges that were afforded to him previously.

However, it's debatable whether or not that is retroactive.

It's debatable whether or not he shouldn't receive these particular privileges which could be accorded to him because this wasn't in relation, in fact this came much, much before the time it could have been to settled in this particular matter.

Justice Arthur J. Goldberg: (Inaudible)

Mr. James J. Cally: I don't know, I frankly can't answer that at this moment, because I don't think that issue is before Mr. Justice Goldberg.

I think the only issue before him is, whether or not to review the findings of the special enquiry officer to ascertain whether or not there was any abuse of discretion as to this decision in the suspension of deportation.

Justice Arthur J. Goldberg: (Inaudible)

Mr. James J. Cally: That is my understanding of the law Mr. Justice Goldberg.

Now, finally we conclude that this matter should be remitted to the Circuit Court of Appeals and be directed to give us a decision on this particular matter.

Thank you.

Chief Justice Earl Warren: Mr. Monahan.

Argument of Philip R. Monahan

Mr. Philip R. Monahan: Mr. Chief Justice, may it please the Court.

On the question of a possible mootness of this case, which you raised Mr. Justice Goldberg, it is the government's position that the merits, the merits of this case which have never been reached are moot.

However, as long as there is a debatable issue as to the correctness of that view and we concede that it is a debatable point, the threshold question of which of the two lower Courts, the Court of Appeals or the District Court should decide the merit is not eluded.

I think that the only conditions under which this jurisdictional question which is the only question before this Court would be moot would be, if the alien conceded that the merits were moot or that at least they were moot beyond any current venture.

Now the government believes that the term all final orders of deportation may pursuant to administrative proceedings under Section 242 b of this Act, the Immigration and Nationality Act, which are the crucial words of Section 106 a, involved in this case, we believe that term refers not simply to the deportability adjudication --

Justice William J. Brennan: Tell me Mr. Monahan does the government take this position before the Second Circuit –

Mr. Philip R. Monahan: Yes, it did.

Justice William J. Brennan: Then this disposition was in a sense there was no jurisdiction in the Second Circuit's own idea.

Mr. Philip R. Monahan: The Second Circuit rejected the contentions of both parties.

Justice William J. Brennan: Well, I had to split it, I would take one part of it and the rest of it would have to go back to the District Court.

Mr. Philip R. Monahan: The Court did not decide that. They said that it did not have to reach to that question I think.

We believe –

Justice William J. Brennan: 55 (Inaudible) is only to the Secretary is wrong as you accept it, in the Second Circuit (Inaudible)

Mr. Philip R. Monahan: Yes, yes sir.

But of course as you know, Mr. Justice there was a four-judge defense there which raises questions which must be considered.

We believe that the best term, Inception 106, refers not simply to the deportability adjudication, although that of course is the indispensable prerequisite to the issuance of any final order of deportation, but rather as the word themselves to us naturally connote, the actual administrative decree or directive that the alien be deported in accordance with law.

And now since this order has historically reflected as I shall point out, not only the finding of deportability, but also the denial of any application for administer -- discretionary relief which the alien may have thought during the deportation proceeding that these natural import of the provision vesting authority in the Courts of Appeals to review all final orders of deportation is to empower and direct the Court of Appeals to review the denials of the administrative, the discretionary relief as well as to the basic deportability adjudication itself.

Justice John M. Harlan: That mean an alien would have two appeals, once in the final order deportation another from the abuse of the discretionarily relief --

Mr. Philip R. Monahan: No Mr. Justice the deportation order encompasses both --

Justice John M. Harlan: Encompasses, both always visible there.

Mr. Philip R. Monahan: Always and therefore it is the government's position and the petitioner agrees I believe that there should be just one single appeal from that final order and that the majority's view that the appeal to the Court of Appeals is only from the deportability adjudication and they suggest a, a invite at least, a holding that there would be an appeal from the denial of the discretionary determination, namely the denial of suspension deportation to the District Court.

Justice John M. Harlan: Well does an alien, who is eligible for discretionary relief unless he asks for it -- asks for an exercise of, asks for such relief is it automatically ruled on by the (Inaudible)

Mr. Philip R. Monahan: No he must ask.

Justice John M. Harlan: He must ask for it.

Mr. Philip R. Monahan: He must ask for it.

Justice John M. Harlan: And how is that he has to ask for it.

Mr. Philip R. Monahan: He must ask for it during the deportation proceeding that's clear.

Justice John M. Harlan: I see.

Mr. Philip R. Monahan: And then the special enquiry officer who is the hearing officer comes down with a decision in order at the end of the whole proceeding (Inaudible) basic ruling would of course be better not, he is, the person as deportable because he is not deportable and that ends the whole matter, but if the decision is that he has deportable under the law then the special enquiry officer in the same decision and order also disposes of the prayer for discretionary relief.

Justice John M. Harlan: Well could an alien who had asked for discretionary relief pending that going through the administrative process, would he have an appealable order to the Court of Appeals, a reviewable order to the Court of Appeals prior to the determination discretionary relief.

Mr. Philip R. Monahan: No he never -- here is what the determination with respect to deportability is until the final order comes down all in one package.

Justice John M. Harlan: I see.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: I think that he would loose that right, as a matter of right if he does not ask the immigration authority to hold in abeyance the direction to affect the voluntary departure until the conclusion of his appeal.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: I don't think that's never this case Your Honor for this reason.

The problem which you have raised would be true no matter which court the alien should appeal, should file his petition for reviewing, whether in the Court of Appeals or the District Court.

Justice Arthur J. Goldberg: Did the Court of Appeals stayed the government's withdrawal of (Inaudible)

Mr. Philip R. Monahan: I would think so.

Justice Arthur J. Goldberg: As part of the jurisdiction to review these cases?

Mr. Philip R. Monahan: I would think so.

Justice Arthur J. Goldberg: Other than they could protest it, you know there is a possibility to (Inaudible)

Mr. Philip R. Monahan: I would think so, that whoever is not involved in case --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: The amicus in this case as Your Honor has pointed out, the order on the special enquiry officer denied the prayer for suspension, but in the same order granted voluntary departure.

The amicus contests the government's conclusion that there is an outstanding order of deportation now as the petitioner has conceded because of the fact that in the District directives -- direction to the alien to affect his departure on or before December 18th, 1961.

The District Director said failure to exercise is probably -- where as this affect by state may result in the withdrawal of the privilege of voluntary departure.

However, on that same date on which that directive was issued the District Director also said, also stated to the alien and this appears at page 93 of the government's brief, in the event that you should fail to depart voluntarily within the time authorized then pursuant to the order of deportation in your case and Section 243 of the Immigration and Nationality Act, your deportation to Italy has been directed.

Now it seems to me the tying that order together with the District Director's Direction to hold into affective departure on or before that date together with special enquiry officer's original order which combined the two that the contingent order of deportation which was contained in the special enquiry officer's original order rested so to speak upon the aliens failure to affect his departure by December 18th.

However, I wish to make it clear Mr. Justice that the government does not believe that this case hinges in any way upon criminal or not, the petitioner is still technically under a voluntary departure order.

Even assuming for argument that he still maybe considered to be under the order of voluntary departure and not technically under a final order of deportation, the special inquiry officer's basic order of September 19th in which he granted voluntary departure but (Inaudible) right into it a contingent order that he, that a deportation order would immediately come into affect without any further proceedings if he fails to avail himself of voluntary departure is a final order of deportation within the meaning of Section 106.

Justice Arthur J. Goldberg: (Inaudible) is quite clear.

Inquiry officer said that you are not going to (Inaudible)

Mr. Philip R. Monahan: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: But I want to emphasize though that we do not think that this case hinges upon the corrective position of that.

Even if he is still under voluntary departure that order is the final order deportation in the practical sense of Section 106.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: There is nothing further -- the alien knows that if he does not affect voluntary departure he knows that that any further administrative proceeding he will be deported.

Now prior to 1940, the distinction, which I have been putting some emphasis here upon namely this the distinction between an order of deportation and the adjudication of deportability would not been important because prior to that year the Attorney General had no discretion with respect to deporting a deportable person.

The order of deportation followed automatically and invariably upon a determination that the alien was deportable under the law, but in 1940 the Attorney General was given this new and important power to suspend the deportation of an alien who was deportable either admittedly so or found to be so in case of extreme hardship and the second power of committing him to depart voluntarily.

Now -- and from the beginning, from the beginning by regulations having the force of law, this dispensing power has been exercised in the deportation proceeding itself by the same officer who has the power -- to whom has been delegated by the Attorney General the authority to issue the deportation order with the result that where suspension has been granted there is no deportation order.

Therefore, it seems to the government that considering all these factors that a realistic and reasonable reading of the phrase, final order of deportation in the light of this (Inaudible) to which I have referred encompasses not only the basic deportability adjudication as the majority below thought, but encompasses the adverse disposition of any petition for discretionary relief which the alien may have asked for.

Justice Arthur J. Goldberg: In other words (Inaudible)

Mr. Philip R. Monahan: I am not sure –

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: Yes sir, but that's commonly done.

Justice Arthur J. Goldberg: All questions would be (Inaudible)

Mr. Philip R. Monahan: And that would involve, that would involve the question, a possible question of eligibility which maybe a purely legal question and possibly abuse of discretion.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: There is no --.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip R. Monahan: By no means.

Chief Justice Earl Warren: Mr. Monahan, I don't know whether you are quitting because it's the adjournment time or whether you finished your argument?

Mr. Philip R. Monahan: I have not finished my argument.

Chief Justice Earl Warren: You have not.

Mr. Philip R. Monahan: Mr. Chief Justice.

Argument of Philip R. Monahan

Chief Justice Earl Warren: -- Francesco Foti, Petitioner, versus Immigration and Naturalization Service.

Mr. Monahan.

Mr. Philip R. Monahan: Mr. Chief Justice, may it please the Court.

Before the recess on Thursday the Court will recall, I had been seeking to show that the party's construction of Section 106 (a) of the Immigration and Nationality Act which – which would construe that Section as applying to the Attorney General's denial of discretionary determinations during the deportation proceeding as well as to the basic deportability adjudication was supported by the literal language of the statute rather than the majority construction.

Today in the time remaining, I would like to show that that construction is corroborated and confirmed by the legislative history of Section 106 and then to make a point by point reputation of certain objections which the majority found with the party's construction in this case.

The fundamental purpose of this new statute, Section 106, the legislative history shows, was to abbreviate the process of judicial review in order to forestall certain dilatory tactics in the Courts, which had come to Congress' attention.

The chief feature of the plan was the elimination of the previous first step in the judicial review process, the suit in the District Court and thereby to limit the review procedure to suits in the Court of Appeals subject of course to the certiorari jurisdiction of this Court.

Now in elucidating the purpose of legislation on the floor of the House of Representatives, representative Walter, the Chairman of the Immigration and Nationality Affairs Subcommittee of the House Judiciary Committee and the chief sponsor of this measure, said and this language appears at Page 26 of the government's brief, “Most important by eliminating review in the District Courts, the bill would obviate one of the primary causes of delay in the final determination of all questions which may arise in a deportation proceeding.”

It seems to the government that that language is particularly pertinent in light of the fact which I pointed out to the Court on Thursday that from the beginning discretionary determinations have been among the issues which have arisen in the deportation proceeding.

Now secondly as examples of the evils which this proposed legislation was designed to correct, the committee reports accompanying the bills which eventuated in Section 106, referred to a number of case histories or proceedings which in the view of the committee had involved abuse of the judicial process by dilatory suits.

Included among these, were several in which the alien had sought review, among other orders, orders denying discretionary determinations which seemed to the government to be further collaborative of the objective of this legislation.

Thirdly there appears in the committee reports a reference chart which illustrates in diagrammatic form the various administrative steps leading to a final order of deportation.

Now that chart we have reproduced at Page 94 of the government's brief for the convenience of the Court.

And it shows that the, as I say in this diagrammatic form, that the final order of deportation is the ultimate product resulting from first of course the deportability adjudication.

Secondly, the denial of suspension of deportation or a voluntary departure where one or the other of those forms of relief have been requested and thirdly the failure by the Board of Immigration Appeals where an appeal to that body has been taken to disturb the special enquiry officers' decision.

Fourthly and finally, there occurred on the house floor, during the debates on this measure in the Congress immediately preceding the Congress in which the bill was ultimately enacted an important colloquy between representative Walter, the chairman of the committee, representative Moore another member of the committee who was a co-sponsor of this measure, and representative Lindsay of New York who as the dissenting judges below pointed out was very familiar with the part played in the deportation process by discretionary determinations as a result of his argument of Jay against Boyd before this Court on behalf of the government.

Now this colloquy is referred to at some length is both the majority and the descending opinions below and it is set forth fully in the government's brief.

Briefly--

Justice John M. Harlan: What page?

Mr. Philip R. Monahan: It appears at Pages 30 to 35 Mr. Justice and I will just take the time at this time to refer the Court to the -- that part of the colloquy, which appears on Page 34 of the government's brief in which Mr. Lindsay says, “Is it not true,” speaking to Mr. Moore, “Is it not true that the words, ‘final deportation order' does not take effect until after the determination of the question of suspension?”

Mr. Moore says, “That is the manner in which I understand the meaning of the term as used in the pending bill.”

Then Mr. Walter says, “Mr. Speaker, during the course of the discussion, the gentleman from New York, Mr. Lindsay, raised a question of suspension of deportation.

I might say to the gentleman from New York, that the six months period on the question of finality of an order applies to the final administrative adjudication of the applications for a suspension of deportation just as it would apply to any other issue brought up in a deportation proceeding.”

I would like to turn now to various specific criticisms of the party's construction made by the majority below.

None in our view have validity.

The majority refers to paragraph four of the exceptions, there are nine exceptions to the application of Section 106, and that appears on Page 58 of the government's brief, in which it is stated that except as provided in Clause B of paragraph 5 of this subsection, the petition, that is the petition for review, shall be determined solely upon the administrative record upon which the deportation order is based.

And the Attorney General's findings of fact, if supported by reasonable substantial and probative evidence on the record considered as a whole, shall be conclusive.

Now, we agree with the majority that that clause, paragraph 4 applies and can only apply to the deportability adjudication, because a discretionary determination as the Court knows does not, in all circumstances, have to be rendered upon the record, materials or the record, maybe used under some circumstances, as the Court said in Jay against Boyd and also since – precisely because it is a discretionary determination it does not have to be based upon the reasonable substantial evidence rule.

However, the majority assumes that the scope of section -- of that paragraph 4, which I just read, is co-extensive with the scope of the principal provision of Section 106.

Now the government that -- we think there is some force to this point.

In fact, we think that this is perhaps the principal, the principal point that the majority makes.

However, in the government's view it would not be surprising for Congress to include in an overall enactment, dealing with the judicial review of final orders of deportation, a particular provision pertinent to what is after all the principal constituent of such an order, the determination or deportability.

Now the majority further argues in its opinion, further point it says in its opinion that it is in the last degree unlikely to use the majority's language that Congress meant to require that discretionary determinations be initially reviewed by a Court of three judges, namely Courts of Appeals and it says that this is true especially in light of a general command of the Administrative Procedure Act that agency action, which is by law committed to agency discretion, shall not be subject to judicial review.

We think there are several answers to this point made by the majority.

First, the same provision of the Administrative Procedure Act to which the majority refers accepts from that exclusion instances where there has been abuse of discretion and we see no good reason for assuming that Congress could not have intended this important function of setting aside agency action because of abusive discretion, that that be discharged in the first instance by the Courts of Appeals.

Moreover, not all challenges of denials of discretionary relief involve mere charges of abuse of discretion as the majority seems at this point to assume.

Much of the litigation in this area involves disputed issues of eligibility for this form of relief, which in turn very frequently involve pure customs law, statutory construction, the questions which are within the special confidence of the Courts of Appeals.

And thirdly most important, it seems to the government that this objection by the majority overlooks the fundamental purpose of Section 106, which was the elimination of the District Court stage of the review of deportation orders.

Now the majority also says that it is incredible, to use the majority's language, that Congress meant to require denials of the privilege of voluntary departure to come within the scope of Section 106 and it says -- and yet if the denial of suspension of deportation comes within it, then there is no reason for assuming the denial of voluntary departure does not.

We agree that that they are both -- that they both stand or fall together, but for the same reasons that I have just pointed out a moment ago, it does not seem to the government to be incredible, the Congress intended denials of voluntary departure to come before the Courts of Appeals, particularly when it is recalled that it is undisputed that these will eventually come before the Court of Appeals in any event if the District Court denied the request and if the alien chose to seek review of it.

Next, the majority raises the question of whether section -- whether the denial of relief under Section 243 (h) is subject to 106.

I should point out to the Court that Section 243 (h) is that provision of the law, which authorizes the Attorney General to withhold temporarily deportation to a -- a specified country on the ground that the alien would be subject to physical prosecution in that country.

The majority seeks to put the government and petitioner in a dilemma so to speak by saying that that can't come under Section 106 because that that decision is made by an officer other than the special enquiry officer who presides at the deportation proceeding and yet majority says it is hardly rationale that the two types of relief are so similar, that it's hardly rationale to suppose that a distinction can be drawn.

We agree with the majority that under section, under the procedure traditionally followed under Section 243 (h) those denials would not come within the Section 106 precisely for the reasons pointed to by the majority namely that the processing of such an application occurs subsequent to the issuance of the deportation order and is heard by an officer who has nothing to do with the deportation proceeding.

Therefore we agree that those 243 (h) denials do not come within 106, but we see no reason for concluding that merely because that form of relief is not subject to 106 that the denials of suspension of deportation, which all the evidence indicates was intended to come within Section 106 should be held to fall without that reason.

There is certain another -- there are few other objections which we referred to in our brief and for these reasons we submit that the judgment of the Court of Appeals should reverse with directions to entertain this petition for review.

Chief Justice Earl Warren: Alright, I suppose Mr. Monahan -- Mr. Cally not being here indicates that he has not rebuttal.

Mr. Philip R. Monahan: I would assume that that was so Mr. Chief Justice, I have not spoken with him about it.

Chief Justice Earl Warren: I see, very well.

Mr. Philip R. Monahan: Thank you.