CHENG FAN KWOK v. IMMIGRATION SER

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Argument of Martin

Chief Justice Earl Warren: Number 638, Cheng Fan Kwok, Petitioner, versus Immigration and Naturalization Service.

Before we start on the other case gentlemen, I would like to express my appreciation to Mr. Bring for representing this indigent defendant at the assignment of this Court that's a very important service and we recognize it as a public service and we thank you for your service.

And also Mr. Martin, we thank you for the diligent and efficient manner which you represented the Government.

Mr. Martin: Thank you.

It's an honor.

Chief Justice Earl Warren: Thank you, gentlemen.

Mr. Coven.

Argument of Jules E. Coven

Mr. Jules E. Coven: May it please -- Mr. Chief Justice, may it please the Court.

This is an appeal from a denial of a petition to review an application for stay of deportation made to the District Director of the Immigration Service in New Jersey by the Court of Appeals on the basis that pursuant to Section 106 (a) of the Immigration and Nationality Act, the Court of Appeals did not have original, initial jurisdiction of this matter and that the case properly belonged in the District Court.

I think we first must go into the facts in the matter to see how the case arose and why it was started in the Court of Appeals rather than the District Court.

The petitioners, a native and citizen of China, went to the United States as a crewman in 1965.

He had a deportation hearing in March of 1966 and was ordered deported, granted the privilege of voluntary departure.

The only relief available to him under the Immigration Law and took -- made one objection to the government procedure during the deportation hearing and an appeal was taken to the Board of Immigration Appeals.

The appeal to the Board of Immigration Appeals is not an issue here, however, after the alien did not depart from the United States when his voluntary departure time ran out, he was ordered to surrender for deportation to Hong Kong.

To go back a little bit in October of 1965, there was a broad base amendment to the Immigration and Nationality Act.

And for the first time, there was a permanent refugee provision written into the law, to with 203 (a) (7) of the Immigration and Nationality Act.

Pursuant to this section, provision was made for refugees from Communist-dominated countries to make application for admission into the United States and that is to give them a visa number.

There was no permanent provision in the Immigration Law prior to this.

The alien being a crewman, was not able to adjust pursuant to Section 245 of the Immigration and Nationality Act, filed an application with the district director in Newark, New Jersey for a stay of the execution of his deportation order on the ground that Section 203 (a) (7) said that a person could apply for relief to be classified as a refugee in any non-Communist dominated country.

Peculiarly enough, the administrative regulations set up only seven offices throughout the world and none in the orient.

They set up offices in Austria, Germany and some other countries in Europe.

The alien, therefore, felt agreed by not being able to apply for relief as a refugee any place in the world, any place that he possibly could get through in the world.

His only course of action was to sue the Government to declare the regulations invalid and that his deportation be stayed until either one of two things happened.

One, the district director in Newark, New Jersey rule on his application for classification as a refugee; or two, the Government would be directed to set up an office in Hong Kong or in somewhere in the orient where he would have the right to apply for relief as a refugee.

When he submitted his application for the stay of deportation, there was no claim made that the order made in his deportation hearing was improper in any way.

The sole claim of the petitioner was that the Government was improperly denying him an opportunity to apply to get an immigrant visa to the United States.

Theoretically under the classification program, he would have been paroled into the United States if his application had been granted.

The action started in the Circuit Court of Appeals for the Third Circuit pursuant to Section 106 (a) of the Immigration and Nationality Act.

This is a statute which came down about five or six years ago and has been the source of constant litigation in the different circuits in the United States.

The Lee case in the field is the case decided by this Court's Foti versus Immigration and Naturalization Service.

The original -- the particular section of Section 106 says, “The procedure prescribed by the provisions of the Act of December 29th, 1950 shall apply to and shall be the sole and exclusive procedure for the judicial review of all final orders of deportation heretofore that hearing made against aliens within the United States pursuant to administrative proceedings under Section 242 (b).”

The Foti case which came to this Court shortly after the enactment of this law, held -- came down with the determination that the application for discretionary relief may do in a 242 (b) deportation proceedings, was reviewable and pursuant to Section 106 (a).

The argument made by the court below, that was the Second Circuit was that since this was not a final order of deportation, they want to limit the statute that the sole actions that are reviewable initially in the Court of Appeals was a reviewable of an order as to whether or not the alien was to be deported from the United States and solely that.

This Court held that since the application for suspension of deportation either executed or suspended the deportation order and since if the application -- if the application for suspension of deportation was granted, the deportation order would fall rule that the Court of Appeals did have initial jurisdiction and remanded the case to the Court of Appeals.

Of course, later on -- excuse me.

In the Foti case, this Court stated that you're not going to rule on the question as to whether or not a motion to reopen deportation proceedings would rest in the Court of Appeals.

Later on in the Giova versus Rosenberg case, this Court in a memorandum opinion held that on a motion to reopen deportation proceedings, the Court of Appeals had original, initial jurisdiction.

The case of today goes -- we ask that the statute be extended further that a stay of deportation, an application for a stay of deportation since it involves the suspension or the execution of a deportation order made at a 242 (b) proceedings, also lies originally in the Court of Appeals.

Of course, this is a question of the legislative intent of Congress and what did Congress intend to do when Section 106 was enacted.

It was stated in the Foti case that Congress intended to set up a single statutory scheme in which an alien could sue the Immigration Service in a deportation matter, and they wish to limit the delay and have a quick determination of the deportation orders based upon the past history in cases before the courts, the deportation of aliens in the United States were delayed because of the litigation pending before the courts.

The Foti case -- there's an interesting language by this Court indicating that the statute should not be strictly construed and that there should be a liberal interpretation to extend the jurisdiction of the Court of Appeals.

It said -- in the Foti case it said that, “Review of a denial of a discretionary relief is ancillary to the deportability issue and both determinations therefore should be made by the same court at the same time.

We realize that deportability such as in this case is conceded in a large number of cases but this fact hardly detracts from our view as to a proper interpretation of Section 106 (a).

There of course had been many different decisions in the different circuits.

In the Seventh Circuit, there was a case Blagaic versus Flagg.

This was decided before the Foti case was decided by this Court.

In the Blagaic versus Flagg case, the alien appeal from a denial of an application pursuant to Section 243 (h) for a stay of deportation, 243 (h) being the physical persecution section of the statute.

In the Blagaic case, the Government's -- the decision as to whether or not the alien's deportation should be stayed was made by the regional commissioner and not the special inquiry officer or the Board of Immigration Appeals.

In Blagaic, the Court of Appeals retain jurisdiction and says, “While it's true that the only question is whether the Attorney General has abused his discretionary refusing to withhold deportations under Section 1253 (h), this question involves the execution or suspension of the deportation order and therefore it is ancillary to the order.

If the withholding of deportation is not granted, petitioner will be deported.

Thus in a realistic sense, the denial of a stay is a part of the deportation order.

Blagaic versus Flagg has -- there would be no question now that an application pursuant to Section 243 (h) would be reviewable in the Court of Appeals because the regulations have been changed and now placing before the special inquiry officer, the applications pursuant to Section 243 (h).

Justice Byron R. White: What if he had filed a motion or petition, whatever you do, under Section 203 (a) (7) to be determined to be a refugee?

Mr. Jules E. Coven: This application pursuant to the regulations would be submitted to a district director or immigration officer.

Justice Byron R. White: What if that were denied?

Mr. Jules E. Coven: If that was denied, it becomes a question as to whether or not it was submitted prior to the deportation proceeding.

It was submitted prior to the deportation proceeding -- no, you have no appeal to the special inquiry officer from a denial of a 203 (a) (7) application.

Justice Byron R. White: Well, did you have an appeal to the Court of Appeals?

Mr. Jules E. Coven: I would say that since if the 203 (a) (7) application were denied and you then went before a special inquiry officer who cannot rule on a 203 (a) (7) application, that case would then -- you could I assume and raise it as a question as to why he should not be deported and then after the final order of deportation was entered and then I would say go to the Court of Appeals.

In fact, I think that's possibly very similar to what could have happened in this case if the alien was not a crewman.

See, the alien not being -- being a crewman was barred from adjusting his status in the United States, not this particular alien but an alien who had been here for two years would be barred from adjusting.

And therefore if he went before a special inquiry officer, I assume he could raise it.

I -- it would have to be denied under the present regulations but then it certainly would lie in the Court of Appeals.

Now, I -- there is another case which certiorari was granted where the action I think can be more clearly seen.

In number 638, Cheng Kwan Chong where certiorari was also granted but this case, it was argued rather in 637, excuse me, was argued.

There was a case of an alien who had been in the United States for more than two years.

Pursuant to Section 203 (a) (7), we raise the objection that 203 (a) (7) would permit the alien to adjust his status in the United States with that, even though he was a crewman since we allege that the Government interpretation that 245 apply, the adjustment of status provision, that case of course, if the 203 (a) (7) application had been granted and if he could adjust not under Section 245, there is, I feel no question in that case.

The grant or denial would effectively act as a execution or suspension of the deportation order.

And here, the case is frankly is almost as far as you can go with a broad interpretation of Section 106.

There is a point raised in one of the cases that the Government regulations in the Yamada versus INS decided by the Ninth Circuit where the Court there in dismissing a petition for review on the lack of jurisdiction grounds said that, the Government could place more of the applications in the Court of Appeals if they meant to expedite the judicial review by regulation such as they did in Blagaic versus Flagg case.

Of course, there are many applications that could be sued upon and I assume that even if you reverse the Court of Appeals, there still will be cases that would go to the District Court which did not involve deportation.

I think a case of an alien, a person or a citizen of the United States who petitions files a visa petition for somebody outside of the United States if this action was denied could still sue in the District Court for an order to grant the visa petition since he is a party in interest.

I think I like to -- I think we must get down to the basics as -- is anybody injured in anyway by the Court of Appeals having jurisdiction rather than the District Court.

And the Government raise -- the amicus curiae raises the situation that here, there is no record to review.

Well, the record to review here, this is a question of law.

The record to review is immaterial as the administrative record of the deportation hearing was not -- was submitted to the Court of Appeals but it was not in any part of any appendix because deportability was conceded, however, there is no question that the Court could have made a proper ruling on the application for the stay of deportation since the solely the question of law was involved.

In fact, in the Hobbs Act, which Section 106 (a) is tailored after, there is a statement, one of the state -- Section 2347 says that, the Court of Appeals can pass on the issues presented when a hearing is not required by law and that appearing from the pleadings and affidavits filed by the party that there is no genuine issue of material fact that's presented.

In the amicus curiae brief, it stresses very strongly that since there is no record before the Court, they can't review it because there is no testimony held.

While in the Hobbs Act, they have do have the exception to the question where no hearing is required.

And under the present application for a stay of deportation, there is no hearing held and the question is submitted to a district director who makes it on the record in his file.

I think in the -- the last line in Foti, therefore this matter can and should be passed upon by the Court of Appeals resulting in a judicial review procedure that would be both fair to the petitioner and expeditious for the Government and when this Act was passed by Congress, the main purpose was to have an expeditious review of all deportation orders.

Thank you.

Chief Justice Earl Warren: Mr. Gordon.

Argument of Charles Gordon

Mr. Charles Gordon: Mr. Chief Justice and may it please the Court.

For the third time in five years, this Court is asked to pass on the statutory provisions for the review of deportation orders.

Its first two decisions in 1963 -- 1965 -- 1963 and 1964, endorsed a broad interpretation of the statute.

Today, we ask the Court to go a step further and to hold that the special review procedure of the statute is applicable to the denial of a motion for a stay of deportation.

Now, our primary concern here is to seek an interpretation which will effectuate the statutory intent and also to end the fruitless jurisdictional disputes in the act phrased of the court below and the Second Circuit which have blocked the effective enforcement of the deportation laws.

While we believe that the substantive portion of this challenge lacks merit, we're not arguing the merits here.

The only issue is whether the petitioner, no one denies that the petitioner has a right to judicial review.

The only issue is whether his petition should be addressed in the first instance to a District Court or to the Court of Appeals.

Now, this depends of course on an interpretation of Section 106 (a) of the Immigration and Nationality Act.

Admittedly, the language of the statute is unclear but its major purpose is unmistakable as this Court pointed out in Foti.

The dominant goal of the statute and I quote, “was to abbreviate the process of judicial review of deportation orders in order to frustrate dilatory attacks in the courts.”

Now, the Court went on to say, again I quote, “The key feature of the congressional plan aimed, directed at this problem was the elimination of the initial first step in the obtaining judicial review, a suit in the District Court.”

The legislative history is discussed in Foti and in our view it abundantly supports the Court's analysis.

Now, the court below did not dispute these legislative objectives.

However, it relied on this Court's rulings in Foti and Giova to support a determination that since motions for stay of deportation were addressed to a district director rather than a special inquiry officer, the Court of Appeals lacked jurisdiction.

Now, while the Foti opinion did emphasize the special inquiry officer's role, it did so, I believe, in addressing the specific problem before the court in that case which was an effort to bifurcate judicial review of different portions of the special inquiry officer's decision.

Indeed, in reserving the question which was later decided in Giova, the opinion of the Chief Justice in Foti stated, relating to the motion to reopen, “The question is admittedly a different one since such an administrative determination is not made during the same proceeding where deportability is determined and discretionary relief is denied.”

Now, in the light of that reservation in the opinion of the Chief Justice, it seems to me not unreasonable to read the holding in Giova as sanctioning at least some review of ancillary determinations.

Now, I shall not attempt to debate with the able amicus as to what we said in our briefs in Foti and Giova.

Since then, we have had the benefit of this Court's opinions in Foti and Giova cases and also, of the developing litigation thereafter and studying the statute in the light of that experience and in the context of actual cases.

We have arrived at the conviction that the interpretation for which we argue today is not only necessary but proper.

Now, it seems to us that the narrow reading which is favored by the court below is not only artificially literal but that it defeats the statutory purpose of abbreviating the language of the Court in Foti, to abbreviate the process of review of deportation orders.

The relevant language of Section 106 (a) says nothing about special inquiry officers.

Those officers unquestionably perform an important function in the deportation process.

But their role relates to only one segment of that process.

Total responsibility for the deportation process resides in the Attorney General under whom the special inquiry officer serves.

Now obviously, the court below would not deny judicial review of the determinations involved here.

What it would do was -- would be to channel them into the District Court to hold that some portions of the deportation process are reviewable in the Court of Appeals and other portions in the District Court, it seems to me, invites the very type of bifurcation of review which Court deplored in Foti.

Moreover, it would ignore the obvious congressional concern with challenges to the deportation order after the basic order was entered.

Now, that concern is reviewed -- is shown in the typical cases of abuse which are listed in the committee reports and which were referred to in this Court's opinion in Foti.

Now, I urge the desirability of reading the statute in a manner which will effectuate the purpose that Congress unquestionably sought to achieve.

In my view, the statute can and should be read as including determinations which are ancillary to and would directly affect the execution of the deportation order.

Indeed, the Ninth Circuit which is against this has conceded that the language of the statute is susceptible to such an interpretation if Congress is found to have intended it.

Now, the language which has caused the difficulty appears in two phrases of the statute.

The first is the statutory reference to final orders of deportation, and the second is the reference to such orders or determinations and pursuant -- this is the language in the statute, “pursuant to administrative proceedings under Section 242 (b) of this Act.”

In Foti, this Court rejected a restrictive interpretation of the first raised, final order of deportation.

Since then, some of the courts favoring a restrictive interpretation have relied on the second phrase, the pursuant phrase.

The legislative history has no direct evidence of the purpose the Congress sought to achieve by this second phrase.

It was introduced by Representative Walter in his 1958 Bill which furnished the basis on which the law was finally enacted.

It really was substantially the final law.

Now, Representative Walter didn't explain why he was introducing this new language.

But my own belief has always been that this second phrase was added by Representative Walter in order to make certain that the new review procedure that he proposed would not be applied to exclusion proceedings.

Throughout the legislative consideration of this measure, there are repeated statements by Representative Walter, by other members of Congress in the committee reports in which a concern is expressed for a limitation of the type of judicial review that will be available in relation to exclusion proceedings.

Section 106 (b) of the statute does specifically limit such review to habeas corpus in exclusion cases.

Now, Representative Walter, as an expert in this field was aware that the immigration statute in referring to orders of exclusion and of deportation in both instances, talks of aliens being deported.

And it is my belief, admittedly without any direct evidence that when Representative Walter added the second phrase, he did so with the hope that he would avert any construction of the statute and would apply it to the review of exclusion orders.

And incidentally, I might mention that some enterprising sole has actually made such a contention.

It has been read that the statute applies to exclusion orders, that contention has been rejected by the Ninth Circuit and is pending here on certiorari.

Justice Byron R. White: Well, would you suppose that if this alien had applied for reclassification as a refugee to the district director and the district director had determined that he was not so classifiable, that that would be reviewable to Court of Appeals.

Mr. Charles Gordon: This is part of our submission.

We think it's not necessary for this case.

We believe that any --

Justice Byron R. White: You think that if he applied to the district director and he also said, now you suspend the order of deportation.

Mr. Charles Gordon: I think that's clearly within the statute but I think that if he applies to the district director for an order which will make him unlawful resident of United States, that in itself will initiate the deportation order and itself applies to the deportation order and should be reviewable to the Court of Appeals.

Justice Byron R. White: And but if he -- and a fortiori then if the district director refuses in order to -- a petition to delay the order of deportation pending his determination of reclassification, that affects the -- directly the deportation order.

Mr. Charles Gordon: Exactly sir.

Our --

Justice Byron R. White: Well, it doesn't affect it but it might.

Mr. Charles Gordon: It operates directly on that order.

It may cancel it.

It may delay it.

It prevents its execution and we think that's part of the final deportation order which the statute speaks.

Justice Byron R. White: Well, it really is in the -- you really have to argue the 203 (a) (7) determinations would be reviewable because if he refuses to suspend the order of deportation, he hasn't affected it at all.

Mr. Charles Gordon: In connection with the 203 (a) (7) you're talking about.

Justice Byron R. White: So, it really hinges on 203 (a) (7).

Mr. Charles Gordon: Or any application that he makes, if he makes an application for what we call adjustment of status.

Justice Byron R. White: Well, isn't that discretionary relief though?

Mr. Charles Gordon: Everything is discretionary.

The application for a stay of deportation is discretionary.

The application for adjustment of status is discretionary.

The application for classification made to some extent would be discretionary.

But these are separate discretionary applications.

The one that you suggest is an application which may make him a lawful, permanent resident of United States.

Justice Byron R. White: Well, that just happens to be one of the grounds on which he asked for suspension.

Mr. Charles Gordon: And it is in our view a totally meritless ground because he has to make such an application outside United States.

The statute doesn't provide for an application of that kind in the United States.

That's been held by a couple of Court of Appeals and certiorari has been denied by this Court.

Now, turning to the language of the statute, of course we have to rely on the language of the statute and I believe a reading of the statute -- the reading that we suggest here is amply supported by the language of the statue considered in the light of its legislative purpose.

The statute speaks of orders made pursuant to Section 242 (b).

It doesn't say in Section 242 (b) proceedings.

It doesn't say in proceedings before a special inquiry officer.

It says, in proceedings pursuant to proceedings under Section 242 (b).

Now, to me, that language necessarily includes an order of the type here, denying an application for a stay of deportation, that determination to me is a determination pursuant to that 242 (b) proceeding.

Now, to treat this Court of course in the Giova case, considered a very similar type of application, an application for reopening the proceedings.

Now, I call to the Court's attention that that application was presented four-and-a-half years after the basic -- yet the Court in Giova, found that that type of application, that type of determination since it bore on the basic order and since it affected the execution of the order was reviewable under Section 106 (a).

Now, a motion to reopen and a motion for a stay are often presented together.

They request similar relief.

Both of them seek to operate on the deportation order.

To treat these two types of applications differently because under present regulations, they are considered by different officers, it seems to me to be placing emphasis only on the label which is placed on the application because our experience has been that applications of the very type that is under consideration here sometimes had been presented in the form of motions to reopen and that was done in the Lee case in the Ninth Circuit.

Sometimes they have been presented in the form of motions for stay.

To treat them differently in our view would represent a triumph of form of a substance.

Now, I believe the essential error of the courts which have favored a restrictive interpretation is their failure to view the entire deportation process and its entirety and concentrating only on one aspect of it.

I would divide and I have in the brief suggested this division.

I would divide the deportation process into three stages.

In each of them they're on the final deportation order and on the proceedings pursuant to Section 242 (b).

The first is what I have called ancillary -- antecedent determinations.

These are proceedings or determinations leading up to the institutional proceedings.

For example, a person may be here in the United States temporarily and asked for an extension of stay and that's denied or he may be here as an exchange visitor who has to leave.

He seeks a waiver which would permit him to remain permanently in the United States or he seeks a visa petition which would enable him also to remain permanently.

Each of this is denied.

Deportation proceedings are commenced.

That's the first stage, the antecedent determination.

The second stage in which I would classify the entire process is what I call integral determinations.

These are determinations within the actual proceeding itself, the hearing proceeding.

Foti set out the reviewability of all determinations made in the integral part of the proceeding.

And the third of these groupings that I've made, I call subsequent determinations.

These in turn can be divided into two parts.

First, would be determinations bearing directly on the execution of the order; and second, would be determinations which bear on the order less directly but if granted would vitiate the order or modify its effect.

In the light of this complete picture of the process in all of its stages, it seems to me that the attempt to distinguish this Court's holding in Giova cannot be supported, motions to reopen, motions for a stay which were involved in Giova and motions for a stay of deportation relate equally to this third stage of the deportation process subsequent determinations, moreover, they bear directly on the execution of the order.

Indeed, the explicit intent of Congress to include motions to stay deportation within the advent of Section 106 (a) is revealed in a chart which is appended to the committee reports in which we've reproduced as Appendix B of our brief, page 55, our principal brief.

Now, Your Honors, the notes said, the deportation process is treated in various stages and various boxes and then they get down to what they call final order of deportation and alongside of it, there's a line, stay of deportation.

In other words, the congressional committees which drafted this law, which reported on it in their reports appended this chart in which they viewed the deportation process as consisting of several stages and at the end of it on the same line as the final order of deportation as an adjunct of that order, they list the stay of deportation.

Justice John M. Harlan: You could have avoided this whole long train of litigation with this technicality by just changing the regulations, couldn't you?

Mr. Charles Gordon: Well, Your Honor, that's not quite that easy as we've suggested in our brief.

Justice John M. Harlan: That's perhaps why I ask the question.

Mr. Charles Gordon: Well, let me answer it then.

I agree and agree with the Ninth Circuit in amicus and everybody else who has made all these kind of suggestions to us to change our regulations.

I agree that it would be very useful if we could get everything into one proceeding because then you'd have one review and it's very -- certainly very desirable to have only one review but the fact is that you can't get everything into one proceeding.

You can't get some antecedent determinations into the same proceeding because they don't relate to any deportation proceeding.

There's no deportation proceeding in prospect unless the application is denied.

Why put the man to a deportation proceeding.

As to subsequent determinations, it's very unlikely that you can get most of them into the deportation proceeding.

You could say, go to one special officer but that's outside the proceeding as the court pointed out in its reservation in the Foti case.

All these things happen after the deportation order is entered.

For example, let's take the mechanics of executing the deportation order.

After the order is entered, it is necessary to take steps and it becomes final if necessary to take steps to execute it.

The Immigration Service has to apply to foreign governments for documents.

It has to deal with transportation lines.

Now, you might say, “Well, what kind of judicial process would approach this type of determination?”

Well, this is not a fantasy on my part.

We have here before the Court a case on which a deportee who has gone through two rounds of full judicial review now seeks to attack in the District Court.

The representations he alleges, the district director made to the Government of Italy in executing the deportation order.

So you see, that type of subsequent determination can't go into the deportation proceeding.

Now, there are also practical considerations.

The special inquiry officer is not equipped to deal with transportation lines.

He is not equipped to deal with foreign governments.

Circumstances arise years later as was shown in the Giova case, years after the proceeding is completed, a new law is passed and this happens all the time.

People seek -- are really fond of that law.

A man marries an American citizen and claims benefits as a result of that status or a new -- an American citizen child is born to him and he claims benefits.

So all these things come up later, it's impossible to join them into the state proceeding.

It might be possible to say that you go to a special inquiry officer to have these applications considered.

But to us, that doesn't alter the relationship of the determination and the process to the essential final deportation order.

Justice Byron R. White: Could the special inquiry officer who ordered this deportation have granted a stay pending an application under 203(a)(7)?

Mr. Charles Gordon: It would be possible but --

Justice Byron R. White: Well, would he have the power to grant?

Mr. Charles Gordon: Not now, nor under the present regulations.

We have amended our regulations.

We gradually have tried to move as much as we can towards the unified proceeding.

We have amended our regulations to give the special inquiry officer authority to grant a stay next with the motion to reopen.

Justice Byron R. White: And that's all.

Mr. Charles Gordon: That's all.

Well, you see, most practical consideration now --

Justice Byron R. White: Well, who can order the -- who can order the deportation stay then?

Mr. Charles Gordon: District directors throughout the United States.

Now, we have special inquiry officers throughout the United States too but they're no always in the place where the stay is sought at the last minute.

Justice Byron R. White: Now, what situation -- that's just a matter of regulation I gather.

Mr. Charles Gordon: Oh, yes.

Of course and mechanics.

It would be impossible in many cases to consider this.

Justice Byron R. White: What was the situation when a Congress put this box in here in connection with the claimed orders of deportation stays?

Who could issue a stay?

Mr. Charles Gordon: Only district directors.

Justice Byron R. White: At that time?

Mr. Charles Gordon: Only district directors and it has always been so.

Justice Byron R. White: At the time they made this chart, special inquiry officers could not grant stays that are --

Mr. Charles Gordon: Only the hearing on the determination of deportability.

No stay of deportation.

That was a function and it's still a function of the district director.

Now, I've called attention to this chart and I see my time is running off.

We'll pass the chart if we could discuss that now.

Now, I think in the light of my analysis of the statute in the light of my belief that in relation to the determinations which affect the execution, directly affect the execution of the order, my belief that we are dealing with a situation almost precisely the same as it was before the court in Giova.

It seems to me that there is no essential difference between an advocation to stay deportation and the often correlative application to reopen the proceeding and sometimes they go together.

Therefore, I think in my opinion, this case is governed by Giova and it seems to me that reversal of the court below is warranted on that ground alone.

Justice Potter Stewart: Giova was hardly a considered decision of this Court, wasn't it?

Mr. Charles Gordon: No, no.

It was just a brief per curiam opinion but the fact --

Justice Potter Stewart: And if that was a case which -- in which like this one, both parties were on the same side.

The respondent agreed with the petitioner.We've been on the same side all three cases that were before the Court.

Justice Potter Stewart: And I know and –-

Justice John M. Harlan: Perhaps we will have Mr. Dempsey.

Justice Potter Stewart: We didn't have Mr. Dempsey in Giova.

Mr. Charles Gordon: Mr. Dempsey has done an exceptionally good job.

I think his brief is admirable.

But I think that Giova does stand for something taking in conjunction with Foti because in Foti, the Court said, “We are not passing on the motion to reopen because it involves a different issue since it was not considered in the same proceeding and then a year later, per curiam.”

And the Foti case remembers was also unanimous per curiam.

Now, upon the submission of the Government, we reverse the judgement below and find that there is jurisdiction and direct the Court of Appeals to entertain the petition.

It seems to me that it does stand for something and the fact that the Court didn't deem that there was a very significant issue, I think it supports our view of this case.

Now, we ask the Court here to go beyond the Giova situation.

We think the case is governed by Giova but we would like if the Court would for the Court to consider the case in a broader setting because of this many jurisdictional dispute that have come up.

We suggest the desirability now that the case is before the Court to consider some of these other issues and I would like to state our position on these issues.

I've already stated that in relation to motions, to determinations which bear directly on the execution of the order.

It seems to me that these are determinations which are made pursuant to proceedings under Section 242 (b).

I call to the Court's attention that 242 (b) relates only to the determination of deportability.

There is a companion statute, 243 (a) which relates to the execution of orders entered under 242 (b).

It seems to us that these two statutes and their implementing regulations are in pari materia.

Moreover, it seems to us that orders relating to the execution of the deportation order are in a very real sense made pursuant to proceedings under Section 242 (b).

Now, for reasons developed in our brief, we ask the Court also to consider the cases of antecedent determinations and the amicus joins with us here.

The amicus also feels that this hould be reviewable, it should be considered part of the final deportation order and reviewable with it and also subsequent determinations of the kind, suggested by Mr. Justice White, those which don't bear directly on the deportation order but which do bear indirectly to the extent that if granted, they would vitiate or modify the deportation order.

But in our view, it's not necessary to consider these questions.

So that the only question before the Court now is the -- a determination relating directly to the execution of the deportation order and we submit that that is clearly within the statute.

Thank you.

Chief Justice Earl Warren: Mr. Dempsey.

Argument of William H. Dempsey, Jr.

Mr. William H. Dempsey, Jr.: Mr. Chief Justice and may it please the Court.

I should like at the outset just to take a few moments to sketch very general terms the character of the argument that I make on behalf of the -- in support of the judgment of the Third Circuit Court of Appeals.

If ruled, I come to rest on the language of the statute and I realize that it's not usual for a case in this Court involving a question of statutory construction to be decided simply by reference to the statutory language, their constitutional problems generally or important conflicting policy considerations or the legislative history looks sharply in a direction different from the statute seems to indicate and I'm particularly hesitant to suggest that this is not such a case because it is here after all because of a rather widespread conflict in the lower courts and yet that is my view of the matter.

I should hope to show that the statutory language strongly supports the judgement of the Third Circuit and not only that but that there are no significant countervailing considerations.

No relevant factors that should lead one to look beyond the evident meaning of the statutory terms.

Certainly, there are no constitutional overtones to this case.

This is a case of a very narrow and I think quite technical statutory construction issue and I should hope also to show, however, that there is no significant legislative history pointing in the direction of the arguments made by petitioner and respondent, and that the affirmance of the judgement of the Third Circuit would not result in consequences, so undesirable that one should wonder whether the Congress really intended them.

And also, as a preliminary matter, I should say and I hope to get to it in some detail that we do rely upon Foti.

Evidently, everyone relies upon Foti and then we're not concerned by Giova.

Now, so far as the statute is concerned as the Court is aware, it provides that the Court of Appeals shall have jurisdiction to review directly final orders of deportation made pursuant to aministrative proceedings under Section 242 (b) of the Act.

I should think that -- and I gather that Mr. Gordon would agree with me from what he said this morning that if the statute read, orders made in administrative proceedings under Section 242 (b) of the Act, the case would not be here.

It's perfectly clear that this order was not entered in Section 242 (b) proceeding.

But the Government urges that the term pursuant is different than -- the phrase 'pursuant to' is different in the word 'in' and that by using that phrase in place of the word 'in', the Congress meant to convey the intention that any order entered in or outside of the 242 (b) proceeding shall be directly reviewable as long as it has a substantial relationship to the final order of deportation.

Justice Byron R. White: Can you think of any order to be made pursuant to a 242 proceeding which would not be made by the special inquiry officer.

Mr. William H. Dempsey, Jr.: Under my interpretation in the statute, no Mr. Justice White.

My interpretation of the statute is that --

Justice Byron R. White: Only special inquiry officers --

Mr. William H. Dempsey, Jr.: Only.

Justice Byron R. White: --can issue orders that are revealed on the Court of Appeals?

Mr. William H. Dempsey, Jr.: That is correct, under my view, Mr. Justice White.

Justice Byron R. White: Yes.

Mr. William H. Dempsey, Jr.: Now --

Justice Potter Stewart: You do have the Giova case?

Mr. William H. Dempsey, Jr.: Well, I was just about to say Mr. Justice Stewart.

In the case of petitions to reopen 242 (b) proceedings which go to the Board of Immigration Appeals, I make that exception so I overstated my or understated my position.

Justice Byron R. White: Yes.

Mr. William H. Dempsey, Jr.: It must be, however, in order that is either made in the initial 242 (b) proceeding or under Giova in a motion to reopen that proceeding.

Justice Byron R. White: Now, if the district director simply issues a stay of the deportation order on some good ground, pending some other determination that even though it wholly suspends the deportation order and that order is -- you wouldn't say that that is a matter that's pursuant to a 242 proceeding.

Mr. William H. Dempsey, Jr.: Yes, I would.

I don't know that that could ever be litigated with the issue to stay.

Justice Byron R. White: Because isn't the subject matter -- isn't the subject matter is the person that was issuing the order.

Mr. William H. Dempsey, Jr.: Oh, it's the -- well, it's the person in the sense that it is the person who functions within the procedures prescribed by Section 242 (b) but I don't agree with the Government that what we're talking about is the question as to whether an officer labeled the district director or a special inquiry officer or a group labeled the Board of Immigration Appeals.

I think, what matters is that the order is or isn't entered in the procedures that are established by the statute, the statute being such in 242 (b).

And I think there's a reason for that, at least a reason that can possibly be assigned to the Congress and let me turn to that reason immediately.

I should say before I leave the statutory language that the Government suggests something else and that is that the phrase 'pursuant to' administrative proceedings under Section 242 (b) was designed to ensure that this statute would not be applied to orders entered in exclusion proceedings.

I just think that stretching the statute very much indeed and I think that if the Congress intended that they pick the most unusual and misleading way of saying it but I don't think they did because in subsection B of the Act, they said it expressly.

They said, “This procedure shall not apply to exclusion cases.”

That is they said, “Exclusion cases will be reviewable only in habeas corpus.”

Now, if I'm right about that, if the statutory language thus strongly support the judgment of the Third Circuit, then the question is, “Is there some reason to go behind the evident meaning of the statute?”

And I will assume arguendo now that there is some play in the statutory language but I hasten to add that I think that assumption is entitled to be viewed with the good deal of skepticism.

I think that this language is quite clear enough so that this Court could appropriately stop the inquiry on the face of the statute and say that whatever might be said about policy or about legislative history that the job of the Congress is to remodel the statute if for some reason, they intended what they did not say in Section 106 (a).

But on the assumption that there is some give here and some room for construction, let me deal with the other arguments advanced by the petitioner and the respondent.

In logic perhaps, I should move to legislative history but the reason that is not a great deal of legislative history and in any event, I think what I have to say about that might be more meaningful in the context of things that I have to say about some of the other arguments.

I think to me at least and perhaps the most persuasive argument advanced by the government is that the judgment of the Third Circuit or the construction given the statute by the Third Circuit just doesn't make any sense that it doesn't -- it's not reasonable to differentiate between two different kinds of orders which in substance are about the same simply on the ground that one has entered in a 242 (b) proceeding and the other isn't.

And if that's true, it doesn't make any sense then one should be reluctant to ascribe that kind of nonsensical purpose to the Congress.

My response to that of course is that there is a reason to believe that the Congress intended to make precisely this differentiation on the ground that one order is entered in the 242 (b) proceeding and that the other is not, even though as Mr. Gordon correctly points out in their effect on the deportation order, the orders may be precisely the same or substantially the same.

Now here, it's time I think to look at what Section 242 (b) is with some precision.

Section 242 (b) is a very important section of the statute.

It provides what I think can fairly be called a quasi-judicial proceeding.

In detail, it guarantees the alien the right to be advised of the charges against him, the right to inadequate notice of the time of the place of the hearing.

The right to be represented by counsel, the right to have the determination made on the basis of the record made in the hearing and most importantly, not only the right to introduce whatever testimony and documentary evidence the alien wishes to put in himself and not merely the right to be advised of the evidence against him but the right to cross-examine adverse witnesses.

Now, this is truly a trial type quasi-judicial proceeding that the statute establishes.

The question then it seems to me is, is it reasonable to think that the Congress intended that there would be direct review only of orders entered in this type of quasi judicial proceeding.

And I suggest here, that my burden is not quite as heavy on this point as the Government would like me to assume.

I don't think that if I'm right about the force of the statutory language, I don't think that I should have to demonstrate that the Congress acted reasonably in distinguishing this way.

I think all that I have to show is that it's reasonable to think that they intended to.

And I'd like to indicate what I mean in a little more detail but first, let me indicate why I think it's reasonable to think that they may have intended to.

The fact to the matter is that so far as we've been able to discover and neither petitioner nor respondent have been able to come up with anything different, every other direct review statute that the Congress has passed is geared to orders that are entered in the context of quasi-judicial hearings, quasi-judicial proceedings.

The prototype statute here is the Federal Trade Commission Act of 1914 and of course that was followed by a series of different statutory provisions relating to the other independent regulatory agencies, and of course they all operate on a quasi-judicial basis.

And beyond that, there are a handful of statutes providing for direct review from the actions of other administrative officials in the executive branch.

There -- some of them were quite obscure.

We're talking about the action of the Secretary of the Army in setting toll rates on toll bridges that sort of thing.

But here to in every case that we've been able to discover, the statute that governs the entry of that kind of order, taking of that kind of action requires a quasi-judicial type of proceeding.

Now, apart from another reason for this is I think it's fairly clear and it was well stated by Chief Judge Bazelon in an opinion by the -- this Circuit Court of Appeals in the District of Columbia in a case involving an appeal from an attempted direct appeal from an order of the Federal Power Commission that it was not one of those that had to be entered in a quasi-judicial proceeding and so there wasn't a trial type record.

The Court declined jurisdiction, held that the direct review statute did not apply and stated that one of the reasons was that inadequate record was simply not there for purposes of appellate review and remanded the case in effect to the District Court.

Now, as I say, we may have missed the statute.

This is an area that goodness knows there may be a statute working around here providing for direct review of an order that doesn't have to be entered in a quasi-judicial proceeding but if we missed it so as everybody else and I am confident at least that we have sufficiently covered the areas so that we can say that the pattern is clear, the pattern of legislation prior to 106 (a) in other areas.

The orders that are directly reviewable are orders by and large if not entirely that must be made in quasi-judicial proceedings.

Now, if that so, I think it is.

It seems to me entirely plausible to say or to think that in acting 106 (a) and providing on the face of the statute that only orders entered in a Section 242 (b) proceeding shall be directly appealable, that Congress was simply carrying over into another area a pattern that had been established in the past in all other areas.

Now, perhaps if they thought about it, they would have concluded that it wasn't a good thing to have it in these areas the Government suggests.

Perhaps they might even think that it probably wasn't a very good idea to have this kind of limitation with respect to others.

The fact of the matter is that of course they didn't think about it.

There isn't any indication at all that they consider this problem.

And so it seems to me that since the question is simply one of statutory construction that when the statute seems clear enough on it's face and when there is good reason to think that the Congress intended what it seemed to have said that that ought rightly to be the end of the matter.

Now, I appreciate of course that to the extent, I can meet the Government's contention that it would have been better if the Congress had acted differently and I probably strengthen my position and this is a more difficult area unquestionably but let me deal with it briefly.

As I understand the argument that the Government makes primarily in it's supplemental brief in response to the argument that I've just made, the Government says in effect, “Well, there isn't any purpose in the immigration and the judicial review of immigration orders' area to require that there would be a quasi-judicial proceeding as the base for the direct review to the Court of Appeals.

Now, I'm not entirely clear in my own mind whether one of the things the Government is saying is that in this area, perhaps as distinguished from other areas, there is never or hardly ever any case that goes to the Court in which there is not a material issue of disputed fact as to which the administrative record is inadequate if it's outside of Section 242 (b) proceeding.

If they are saying that, I do not agree.

I think that is not demonstrable.

In fact, I think it can be demonstrated and not to be corrected.

I do think that if all they mean to say is that by and large, the judicial review of INS orders, turn on legal questions that don't involve material issues of disputed fact and the records are by and large adequate, I think that is almost surely true.

I think that's almost surely true of any review of administrative agencies.

By and large, the administrative agencies do make adequate records whether or not the statute requires it.

But the cases that the Government cites, established that this is not always so.

In the Tahiti case in the Ninth Circuit and the case that's cited in the District of Columbia Circuit in their supplemental brief.

In both of those cases, the Courts of Appeals found inadequacies in the record.

Inadeqacies that had to be patched up before those courts felt that they could adequately review the case.

They felt there could not be inform judicial review.

We've cited another case in our brief.

I just try another Ninth Circuit across another Ninth Circuit case of the same Court kind of this morning.

I think what the Government says over in response to that is that well, perhaps so, there might be cases in which if you didn't have a quasi-judicial proceeding required by statute and left the agency to it's own devices, there might be inadequacies in the records and in some cases of judicial review but still, the District Court would have no unique function to perform.

It might as well go to the Court of Appeals and here of course, we're talking about the evidentiary function of a trial court.

The reason that that's true, the Government says is that in such a case, the Court would not be entitled to hold an evidentiary hearing and that is the District Court.

The case would have to be remanded to the agency for a hearing, for a further hearing, for an expanded hearing.

Now, this may be a perfectly sensible approach to this kind of problem and I suspect it is, but the difficulty is that so far as I know and so far as the Government has indicated in it's brief, there is no statutory authority for a federal court to require the agency to hold a hearing except under Section 242 (b) so that if these actions are taken outside of 242 (b) and putting aside of course the possibility that there might be a constitutional requirement in some cases, I see no basis for the suggestion that a federal court could require the agency to patch up a record that needed patching.

Justice Byron R. White: We had some problems like that in other areas, which doesn't seem to have prevented remanding.

Mr. William H. Dempsey, Jr.: Remanding to the agency.

Justice Byron R. White: Like in contract to appeals cases.

Mr. William H. Dempsey, Jr.: Yes, yes.

Well, as I say, it is possible that there's some way that this kind of a result could be justified and as I say, I suspect that it's probably quite a reasonable thing to do but in this area in the Bufalino case in the District of Columbia Circuit, the Court of Appeals did not do that.

This was a case in which when the kind of action that the INS took in denying discretionary relief, when that action was taken under the regulations, that action could not be taken under Section 242 (b) proceeding.

A suit was brought in the District Court and the District Court declined to take evidence.

The Court of Appeals reversed and remanded not to the agency but to the District Court for the taking of evidence.

So that -- what I'm saying is that there are cases in this area in which if a 242 (b) proceeding is not held, the record will be inadequate and in those circumstances, the District Court may well have a unique function to perform in building inadequate record for judicial review.

And in those circumstances, it was reasonable for the Congress to act as it did in differentiating between orders entered in a 242 (b) proceeding and orders entered outside the 242 (b) proceeding.

Now, the Government suggest that there will be practical problems that will arise if the judgment of the Third Circuit is affirmed and they speak in the name of what they call bifurcation which I take it means that for a particular alien who is contesting two or three orders, some of which are entered in the 242 (b) proceeding and some of which are entered by the district director, he would wind up in two different courts, the Court of Appeals and the District Court.

I don't really think that this is so because I take it that the Government does not retreat from the position in this respect that it took in Foti and that is that where a petition for review is properly filed in the Court of Appeals and another order is entered by a District Court outside 242 (b), I suggest and as I say, I think the Government agrees that the doctrine of ancillary jurisdiction is applicable and that the Court of Appeals in its discretion to be sure but in its discretion would have jurisdiction over both issues.

I see that this is an issue that the Court did not have to reach in Foti but I see no problem with it so far as traditional backgrounds of ancillary jurisdiction are concerned.

Now, if I'm wrong about that, still and all, I don't know that the problem is too terribly serious and certainly, it would not seem to me to involve any problems, any particular problems for the judiciary.

I would think that what would happen would be that the Court of Appeals would hold the petition for review until the District Court have disposed of the issues before it and then if the District Court action didn't move the case, an appeal were taken, the two proceedings at that point would be consolidated.

Now, to be sure, this means that there will not be in such a situation the kind of expedition that the Government wants and this, I suppose, brings me to their argument taken to legislative history.

The Government rests very heavily upon the legislative history that demonstrates and it certainly does demonstrate that the intention of the Congress in enacting Section 106 not just this provision but all of the provisions of the statute was to expedite judicial review in deportation cases.

And I think about all that I can say about that is that this kind of a evidence of a general legislative purpose cannot survive the kind of statute that there is here which reflects, I suggest, quite clearly a limiting subsidiary purpose to confine direct review to cases that involve orders that are entered in quasi-judicial proceedings.

There is nothing unreasonable about such a limiting purpose.

There is no reason to believe that the Congress intended that there would be expedition at all costs.

So far as particular legislative history bearing upon this single provision is concerned, there are not very much.

The Government relies upon -- primarily upon a chart which is appended to its brief at page 55, the last page that chart in term was appended to two House Committee reports.

I must confess that I've had real difficulty in understanding the relevance of this chart to the particular issue involved in this case.

As I look at that chart, all that it means to me and all that I suggest any as what have said about it in the House reports is that for the information of the members of the Committee and the information of the members of the Congress, the Committee outlined in block and line form, everything that could happen once a deportable alien was found in the United States including private legislation for example.

Private legislation falls in the same box in which we find stay of deportation and the line goes over the final order of deportation too.

Well, obviously the Committee didn't mean that there would be any judicial review of private legislation under Section 106 (a).

There is nothing here, I suggest, that says that this chart was meant to outline the various kinds of procedural steps that would fall within Section 106 (a), and that's the issue here.

Now, for our part, we rely upon an interchange during the House debates on this legislation between Congressman Libonati and Congressman Walter.

Congressman Walter of course was the author of the Bill.

He was the manager of the Bill on the House floor.

Congressman Libonati opposed the Bill.

The Government says that Representative Libonati's question was uninformed.

We would rather characterize it as penetrating.

And they say that Representative Walter's reply was cursory and we would suggest that it was very discerning.

But I guess the words will have to speak for themselves.

But what happened and what the words are is this.

Representative -- excuse me Mr. Justice Brennan.

Justice William J. Brennan: What page is that?

Mr. William H. Dempsey, Jr.: Oh, I'm sorry.

Pages 32 and 33 of my brief.

Representative Libonati said this, “We know that under such a situation that is under direct review by the Court of Appeals, the Court of Appeals cannot inquire as to anything beyond the written record.

We know further that no written record would be supplied to the petitioner in the proceeding.

It would merely be a systematic method of disposing of the case of the earliest opportunity without any question as to the relevant facts that might be brought into the case by the petitioner in a District Court hearing by federal district judge.”

And in reply, Mr. Walter said, “I respectfully invite the gentleman's attention to the law in Section 242 in which the procedure for the examiner set forth in detail.

The gentleman apparently has not seen this section.”

Now, of course, Representative Walter might not have been thinking fast at that point or he might have been conceivably just trying to score debaters points but if one credits what he says as it seems to me one should.

What he is saying is that you don't have to worry about the kind of things that I've been talking about this morning, the possible inadequacy of the record when a case goes from an order entered by district director for the Court of Appeals.

You don't have to worry about that because Section 242 takes care of it.

It will give the appellate courts inadequate record and of course it will if the right to review is confined to orders entered in the context of Section 242 (b) proceedings.

Now, as to Foti, of course the case is open for consideration and what was said in Foti can be modified.

But I should think there isn't any serious question that if the language of the Foti opinion is applied faithfully to this case, the judgment of the Third Circuit will be affirmed.

In Footnote 16 in the Foti case, this Court addressed itself specifically to the problem here.

The problem whether an order in that particular footnote was an order withholding deportation.

Whether an order entered outside Section 242 (b) proceeding would fall within Section 106 (a) and this Court said that presumably, it would not.

Now, this is the language of the Supreme Court upon which the Third Circuit rely and certainly at the very least, it can be said that they did try to apply without qualification the most recent and the most relevant statement by this Court.

In addition to that in the text of the Foti opinion, the Court repeatedly stressed the consideration that he order involved there had been entered in a Section 242 (b) proceeding.

If the Government is right today, all of that was irrelevant so that -- and while we concede that the holding in Foti is not governing here but if the theory of the Government is accepted here, a good deal of what was said in Foti will have to be qualified very sharply.

And I suggest that in an area and with respect to a statute that has generated such in my judgement a remarkable amount of confusion in the lower courts that all things else being reasonably equal, there is something to be said for as consistent of pattern of rationale in this Court's opinion as possible.

So far as Giova is concerned, I distinguish Giova if that's the proper term on the same basis that the Solicitor General urged upon the Court in Giova itself.

The Solicitor General said was that while at that time he thought that orders of the kind we have involved in this case would not fall within 106 (a) because it entered wholly outside the 242 (b) proceedings.

At the same time, he thought that -- well, he thought Giova was a close case.

At the same time, he thought that it was appropriate to have motions to reopen a 242 proceeding to follow the same path through the courts as the orders entered into the 242 (b) proceeding itself by analogy to petitions for rehearing in courts are motions for new trial, things of that sort and that seems to me to be perfectly sensible.

That concludes I think the major things I would have to say.

I would like to add if it's appropriate but that I was greatly aided in this case by the particularly having no particular experience in this area by the open and fully candid and very helpful cooperation of Mr. Gordon and also Mr. Beytagh of the Solicitor General's Office and I appreciate it in a great deal.

Thank you.

Chief Justice Earl Warren: Mr. Dempsey, before you sit down.

In behalf of the Court, I would like to thank you for appearing at our request as an amicus in this case.

You're very able and impartial argument would be very helpful to us, and we consider that that is a real public service.

Mr. Gordon and you and you sir, we thank for your objective presentation of the matter.

You've all been very helpful to us.

It's good to hear your case argued in this Court.

Mr. William H. Dempsey, Jr.: Thank you very much.

It's a great pleasure for me.