IMMIGRATION AND NATURALIZATION SERVICE v. STANISIC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Argued February 25, 1969.
Decided May 19, 1969.
Respondent, a Yugoslav crewman, while in the United States under a "D-1" conditional landing permit (granting an alien crewman temporary shore leave while his ship is in port), appeared on January 6, 1965, at the Portland, Oregon, office of the Immigration and Naturalization Service (INS) and claimed that he feared persecution upon return to Yugoslavia. On the basis of his statement that he would not return to his ship, and in accordance with 252 (b) of the Immigration and Nationality Act (which provides a procedure for the deportation of an alien crewman holding a D-1 landing permit where it is determined that he does not intend to depart on the vessel which brought him) the District Director revoked respondent's permit. Respondent, however, was offered the opportunity the next day to present evidence supporting the persecution claim, pursuant to 8 CFR 253.1 (e), under which an alien crewman whose conditional landing permit had been revoked and who claimed that he could not return to a Communist country because of fear of persecution might be temporarily "paroled" into the United States in the discretion of the District Director. Respondent presented no evidence, contending that he did not have enough time to prepare for the hearing and that he was entitled to have his claim for asylum heard by a special inquiry officer under 242 (b) of the Act. The District Director ruled against respondent and ordered him returned to his ship, then still in port. Following a temporary stay of deportation by the District Court, the District Director on that court's order held a hearing at which respondent presented evidence, and on January 25, 1965, held that respondent had not shown that he would be "physically persecuted" in Yugoslavia. The District Court upheld that finding and rejected respondent's claim to a 242 (b) hearing. Respondent took no appeal but petitioned Congress for a private bill, pending action on which the INS stayed deportation. When respondent's effort failed, the INS ordered him deported. The INS and later the District [395 U.S. 62, 63] Court on the basis of their previous determinations rejected respondent's renewed claim for a 242 (b) hearing. The Court of Appeals reversed, holding that the matter was not res judicata because those determinations were based on the premise that respondent's ship was still in port; now, however, the ship had departed and respondent had still not been deported. The court concluded that 252 (b) only authorized respondent's "summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before [his] vessel departed," and held that respondent was entitled to a de novo hearing under 242 (b). Held:
Joseph J. Connolly argued the cause for petitioner, pro hac vice. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan.
Edward J. Ennis and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals sustained the respondent crewman's contention that he must be heard by a special inquiry officer 1 in a proceeding conducted under 242 (b) of the Immigration and Nationality Act. 2 Petitioner, the [395 U.S. 62, 65] Immigration and Naturalization Service, argues that respondent's claim was properly heard and determined by a district director. 3 We brought the case here, 393 U.S. 912 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in Kordic v. Esperdy, 386 F.2d 232 (1967).
Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard [395 U.S. 62, 68] by a special inquiry officer in accordance with the general provisions of 242 (b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.
Respondent immediately sought relief in the United States District Court for the District of Oregon, 6 which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent's claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent "has [not] shown that he would be physically persecuted if he were to return to Yugoslavia." Appendix 22.
On respondent's supplemental pleadings, the District Court held that the District Director's findings were supported by the record. The court rejected respondent's claim that he was entitled to a 242 (b) hearing before a special inquiry officer, relying on the last sentence of 252 (b), which provides: "Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection." Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113 (1965).
Respondent did not appeal the District Court's decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent's effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia. [395 U.S. 62, 69]
The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.
The Court of Appeals for the Ninth Circuit reversed, Stanisic v. Immigration Service, 393 F.2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director's adverse determination in 1965, and the District Court's unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port; 7 but now the ship had long since sailed, and respondent still had not been deported. The court held that 252 (b) only authorized respondent's "summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before . . . [his] vessel departed." 393 F.2d, at 542-543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director's 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under 242 (b) of the Act.
Section 242 (b) provides a generally applicable procedure "for determining the deportability of an alien . . . ." Section 252 (b) provides a specific procedure for the deportation of alien crewmen holding D-1 landing permits. Neither of these sections is concerned with the granting of asylum.
Relief from persecution, on the other hand, is governed by 212 (d) (5) and 243 (h). The former section authorizes the Attorney General, in his discretion, to
Prior to 1960, no regulation provided relief to an alien crewman whose D-1 landing permit was revoked but who claimed that return to his country would subject him to persecution. In Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), a district court held that a crewman in this situation was entitled to be heard. The Service responded by promulgating 8 CFR 253.1 (e), supra, at 67, the regulation which it applied in the case at bar. 8 CFR 253.1 (e) is a hybrid. The grounds for relief are, for present purposes, identical to those of 243 (h) of the Act. 9 However, because the Service adheres to the view that a crewman whose D-1 permit has been revoked is not "within the United States" in the technical sense of that phrase, see Leng May Ma v. Barber, 357 U.S. 185 (1958), it terms the relief "parole" into the United States rather than "withholding deportation." Whatever terminological and conceptual differences may exist, the substance of the relief is the same. 10
The Service could provide that all persecution claims be heard by a district director, and we see no reason why the Service cannot validly provide that the persecution claim of an alien crewman whose D-1 landing permit has been revoked be heard by a district director, whether or not the ship has departed. It might be argued, however, that the Service has not done so; that 8 CFR 253.1 (e) was designed to govern the determination of persecution claims only when 252 (b) of the Act governed determinations of deportability; and that if departure [395 U.S. 62, 72] of the vessel renders 252 (b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR 253.1 (e) likewise becomes inapplicable.
Section 253.1 (e) applies, however, to "[a]ny alien crewman . . . whose conditional landing permit issued under 252.1 (d) (1) [of 8 CFR] . . . is revoked" - precisely respondent's situation - and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E. g., Kordic v. Esperdy, 386 F.2d 232 (1967); Glavic v. Beechie, 225 F. Supp. 24 (1963), aff'd, 340 F.2d 91 (1964). "[T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 414 (1945).
In sum, it is immaterial to the decision in this case whether 252 (b)'s exception to the 242 (b) procedure is, or is not, applicable to respondent. These two provisions govern only the revocation of temporary landing permits and the determination of deportability, and we reiterate that respondent does not contest the District Director's action on either of these scores. These sections do not state who should hear and determine a request for asylum. That is a matter governed by regulation, and under the applicable regulation the respondent received his due.
The history of 252 (b)'s narrow exception to the 242 (b) deportation procedure is found in the Report of the Senate Committee on the Judiciary, S. Rep. No. 1515, 81st Cong., 2d Sess., which preceded the enactment of the Immigration and Nationality Act. Alien crewmen had traditionally been granted the privilege of temporary admission or shore leave "because of the necessity of freeing international commerce from unnecessary barriers and considerations of comity with other nations . . . ." Id., at 546. A serious problem was created, however, by alien crewmen who deserted their ships and secreted themselves in the United States. The Committee found that:
Section 252 (b) most plainly governs the situation in which a D-1 landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port, 12 so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman's deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him, 13 and to the Service.
That this is not the only situation to which the 252 (b) procedure applies, however, is evident from the language of 252 (b) itself and the related provisions of 254. 14 Section 252 (b) requires that where an alien crewman's landing permit is revoked his transportation company must detain him aboard the vessel on which he arrived, and deport him. Section 254 (a) imposes a fine on the company and ship's master, inter alia, [395 U.S. 62, 76] for failure to detain or deport the crewman "if required to do so by an immigration officer." However, 252 (b)'s requirement is modified by the term, "if practicable"; and 254 (c) correlatively provides:
The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that 254 (c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed. 16 From this it concluded that "the section [395 U.S. 62, 77] contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port . . . ." 393 F.2d, at 546. Since arrangements for respondent's deportation had not been made before the M/V Sumadija departed, the 254 (c), and hence the 252 (b), procedures were no longer applicable: with the ship's departure, respondent became entitled to a hearing pursuant to 242 (b).
We agree that the "clearance" provision of 254 (c) contemplates that the crewman's departure on another vessel may sometimes be accomplished or arranged before the vessel that brought him departs. If, however, the crewman's vessel sails before its owner has paid or guaranteed the expenses of deportation, the owner's liability under 254 (c) is in no way diminished. The Government has merely lost a useful means of compelling payment of costs which may still be collected by other methods. 17 Indeed, as the Court of Appeals itself noted, 254 (c)'s financial responsibility provision is not limited to instances of deportation pursuant to 252 (b), but applies to the deportation of alien crewmen in a variety of situations, including those in which a 242 (b) proceeding has been held, and thus those in which the crewman's vessel may long since have departed. 18
Strong policies support the conclusion that a properly commenced 252 (b) proceeding does not automatically [395 U.S. 62, 78] abort upon the departure of the crewman's vessel. If the crewman whose landing permit has been revoked pursuant to 252 (b) attacks the district director's action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities 19 may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit's construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman's vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard.
We agree with the court below that 252 (b) is a provision of limited applicability. But we conclude that the court's construction would restrict its scope to a degree neither intended by Congress nor supported by the language of the Act, and that it would, as a practical matter, render 252 (b) useless for the very function it was designed to perform.
We hold that an alien crewman whose temporary landing permit is properly revoked pursuant to 252 (b) does not become entitled to a hearing before a special inquiry officer under 242 (b) merely because his deportation is not finally arranged or effected when his vessel leaves, and that under these circumstances the Attorney General [395 U.S. 62, 79] may provide - as he did in 8 CFR 253.1 (e), now 8 CFR 253.1 (f) - that the crewman's request for political asylum be heard by a district director of the Immigration and Naturalization Service.
We believe, therefore, that it is appropriate that respondent be given a new hearing before the District Director under the appropriate standard, and we remand the case for that purpose. 22 [395 U.S. 62, 80]
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
[ Footnote 2 ] 66 Stat. 209, 8 U.S.C. 1252 (b):
[ Footnote 3 ] A district director is the officer in charge of a district office of the Immigration and Naturalization Service. He performs a wide range of functions. See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 1.9c (1967); 8 CFR 103.1 (f).
[ Footnote 4 ] Section 252 (a), 66 Stat. 220, 8 U.S.C. 1282 (a) provides:
[ Footnote 5 ] 26 Fed. Reg. 11797 (December 8, 1961). Effective March 22, 1967, the section was amended and redesignated 253.1 (f), 32 Fed. Reg. 4341-4342.
[ Footnote 6 ] Because the District Director's determination was not pursuant to 242 (b), the District Court had jurisdiction to review his action. See Cheng Fan Kwok v. Immigration Service, 392 U.S. 206 (1968); Stanisic v. Immigration Service, 393 F.2d 539, 542 (1968); Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113, 115-117 (1965); 5 U.S.C. 1009.
[ Footnote 7 ] Actually, the ship sailed from the United States on or about January 16, 1965, or between the date on which the District Director revoked respondent's landing permit (January 6, 1965), and the date on which, after a hearing, he denied respondent's persecution claim (January 25, 1965). This fact was not in the record before the Court of Appeals.
[ Footnote 8 ] This was not always so. Until 1962, the final determination was made by a regional commissioner of the Service. 8 CFR 243.3 (b) (2) (1958 rev.); see Foti v. Immigration Service, 375 U.S. 217, 230 , n. 16 (1963).
[ Footnote 9 ] The only substantial difference is that the regulation, but not the statute, is limited to Communist-inspired persecution.
[ Footnote 10 ] For this reason, we have no occasion to decide whether or not respondent was "within the United States." Compare Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), with Kordic v. Esperdy, 386 F.2d 232 (1967), and Glavic v. Beechie, 225 F. Supp. 24 (1963), aff'd, 340 F.2d 91 (1964). It may further be noted that 243 (h), by its terms, "authorizes" but does not require the consideration of persecution claims.
[ Footnote 11 ] This is responsive to the language of 252 (b). Permission to land terminates upon the vessel's departure, and thereafter there is nothing to "revoke."
[ Footnote 12 ] 8 CFR 252.2 (d) provides that a "crewman granted a conditional permit to land under section 252 (a) (1) of the Act . . . is required to depart with his vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place; however, he may rejoin his vessel at another port in the United States before it touches at a foreign port or place if he has advance written permission from the master or agent to do so." In the latter case the crewman may journey some distance from the port at which he arrived.
[ Footnote 13 ] See infra, this page and at 76.
[ Footnote 14 ] 66 Stat. 221, 8 U.S.C. 1284.
[ Footnote 15 ] This is doubtless an accommodation made in the light of the transportation company's liability for the expenses of deportation.
[ Footnote 16 ] "All expenses incurred in connection with such deportation, including expenses incurred in transferring an alien crewman from one place in the United States to another under such conditions and safeguards as the Attorney General shall impose, shall be paid by the owner or owners of the vessel or aircraft on which the alien [395 U.S. 62, 77] arrived in the United States. The vessel or aircraft on which the alien arrived shall not be granted clearance until such expenses have been paid or their payment guaranteed to the satisfaction of the Attorney General. . . ." 254 (c).
[ Footnote 17 ] Thus, if and when respondent is deported, the owners of the M/V Sumadija will be responsible for the related expenses incurred by the United States.
[ Footnote 18 ] And, although we do not decide this question, 254 (c) would appear to allow the Attorney General to require security for the payment of anticipated expenses of deporting an alien crewman, even though no final arrangements have been made before the vessel that brought him departs.
[ Footnote 19 ] See generally 1968 Director of the Administrative Office of the United States Courts Ann. Rep., Tables C, D, and X (1968).
[ Footnote 20 ] 66 Stat. 214.
[ Footnote 21 ] See supra, at 68; Appendix 18-22 passim.
[ Footnote 22 ] Respondent contends that his 1965 proceeding was infected with various constitutional errors, including the District Director's alleged bias and his combination of prosecutorial, investigative, and adjudicatory functions. Because that proceeding is not before us, and because we remand for a new hearing, we have no occasion to consider these arguments, except to note that neither 252 (b) of the [395 U.S. 62, 80] Immigration and Nationality Act nor 8 CFR 253.1 (f), under which respondent will be heard on remand, is unconstitutional on its face. Likewise, it is premature to consider whether, and under what circumstances, an order of deportation might contravene the Protocol and Convention Relating to the Status of Refugees, to which the United States acceded on November 1, 1968. See Dept. State Bull., Vol. LIX, No. 1535, p. 538.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
Two procedures for the deportation of aliens are relevant in this case. The first is set forth in 242 (b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U.S.C. 1252 (b), and is the procedure required in most instances when the Government seeks to deport an alien. Under 242 (b) a number of procedural safeguards are specified to insure that an alien is given the full benefit of a complete and fair hearing before the harsh consequence of deportation can be imposed on him. 1 The second procedure involved in this case is set [395 U.S. 62, 81] forth in 252 (b). It is applicable only under very special circumstances involving alien seamen who enter this country under conditional landing permits. Section 252 (b) provides for a short, summary procedure. 2 Unlike 242 (b), the first provision mentioned, this second provision does not require that the hearing officer be someone unconnected with the investigation and prosecution of the case. It does not require specific trial safeguards such as the rights to notice, counsel, and cross-examination [395 U.S. 62, 82] of witnesses. Indeed, 252 (b) apparently does not require that the alien be given any hearing at all but would seem to authorize an immigration officer to order immediate arrest and summary deportation on the basis of any information coming to him in any way at any time. The question before the Court is therefore not the apparently insignificant question suggested by the Court's opinion - namely, whether this alien's case was properly determined by an official with one title, "District Director," rather than another title, "special inquiry officer." Instead, the question is the crucially significant one whether an alien seaman about to be forced to leave the country is entitled under the circumstances of this case to the benefit of safeguards that were carefully provided by Congress to insure greater fairness and reliability in deportation proceedings.
The regulations relied on by the Court in Part II of its opinion do not provide an independent basis for its holding. Among the relevant regulations, 8 CFR 242.8 (a) applies "[i]n any proceeding conducted under this part," namely "Part 242 - Proceedings to Determine Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal." The regulation is thus designed to spell out further the details of proceedings required to be conducted under 242 of the statute, and this regulation explicitly authorizes the special inquiry officer "to order temporary withholding of deportation pursuant to section 243 (h) of the Act [the political persecution provision]." In contrast, the regulations relied upon by the Court as authorizing a District Director to decide this issue, in particular former 8 CFR 253.1 (e), apply by their own terms only to the procedure for "parole" of an alien under 212 (d) (5), a remedy distinct from the withholding of deportation under 243 (h), and by the Government's own admission these regulations are applicable only to "requests for asylum made [395 U.S. 62, 83] by crewmen against whom proceedings under Section 252 (b) have been instituted." Brief for Petitioner 37. Thus, the regulations serve only to spell out the procedures to be followed under both 242 (b) and 252 (b) and do not even purport to specify when one of these sections rather than the other is in fact applicable. The fact that the Immigration and Naturalization Service has applied the regulation differently does not change this meaning. As the Court concedes, the regulation is "not free from ambiguity," ante, at 72, and of course the ambiguity in the regulation is precisely the same as the ambiguity in the statutory provision from which the wording of the regulation was drawn. It seems clear that the way in which the Service has applied the regulation has been determined by its interpretation of the statute, an interpretation that is in no way binding on us. Both the statute and the regulation are ambiguous, and there is no doubt in my mind that this ambiguity should be resolved in favor of the alien who is seeking a full and fair hearing. With all due respect, I think the Court's involved argument based upon the regulations, which goes beyond anything suggested by the Government itself in this case, provides no basis whatsoever for avoiding the fundamental question of statutory interpretation as to which of the two procedures, 242 (b) or 252 (b), was required to be followed in this case.
The Government contends that respondent, the alien seaman involved here, could be properly deported under the special summary procedures of 252 (b) because his conditional landing permit was revoked and because 252 (b) authorizes summary deportation after this permit is revoked. Respondent, however, argued in the Court of Appeals that he should have been given the benefit of the careful hearing procedures spelled out by Congress in 242 (b) because the ship on which he came had departed before the decision of the District [395 U.S. 62, 84] Director was made, and therefore the only justification for the fast but ordinarily less desirable procedure of 252 (b) no longer existed. The Court of Appeals held that 252 (b) proceedings were authorized only prior to the departure of the ship. I agree with the Court of Appeals. As that court noted in its opinion:
I would affirm the judgment of the Court of Appeals.
[ Footnote 1 ] Section 242 (b) provides as follows:
[ Footnote 2 ] Section 252 (b) provides as follows: