Kristensen v. McGrath

• Decision Date: 19 December 1949
• Docket Number: No. 10044.,10044.
• Parties: KRISTENSEN v. McGRATH, Attorney General et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

86 US App. DC 48, 179 F.2d 796 (1949)

KRISTENSEN v. McGRATH, Attorney General et al.

No. 10044.

United States Court of Appeals District of Columbia Circuit.

Argued November 7, 1949.

Decided December 19, 1949.

Mr. David W. Louisell, Washington, D. C., with whom Mr. Samuel Spencer, Washington, D. C., was on the brief, for appellant.

Mr. Ross O'Donoghue, Assistant United States Attorney, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and John D. Lane, Assistant United States Attorney, Washington, D. C., were on the brief, for appellees.

Messrs. Jack Wasserman and Irving Jaffe, Washington, D. C., were on the brief on the behalf of Association of Immigration and Nationality Lawyers, amicus curiæ, urging reversal. Mr. Thomas M. Cooley, II, Washington, D. C., also entered an appearance on behalf of amicus curiz.

Before EDGERTON, McALLISTER, sitting by designation, and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant, a citizen of Denmark, entered the United States in August, 1939 under a sixty-day temporary visitor's visa to attend the New York World's Fair and to visit his relatives. Caught here by the outbreak of war in Europe, he secured two extensions of stay — each for six months. Before the expiration of the second six-months' period, he obtained employment, allegedly because of economic necessity, only to find that he had thereby violated the terms of his visa. A warrant of deportation issued against him on May 15, 1941, but was stayed because of the impossibility of travel during hostilities. Meanwhile, as an alien subject to a deportation order, he had filed Form DSS 301 ("Application by Alien for Relief from Military Service") on or about March 30, 1942 which resulted in his exemption from military service under the Selective Training and Service Act of 1940, as amended in 1941, 50 U.S.C.A.Appendix, § 301 et seq., (cited hereafter as STSA). He subsequently married an American citizen in 1944 and, in 1946, applied for suspension of deportation under the Immigration Act of 1917, as amended, 54 Stat. 672, 8 U.S.C.A. § 155(c), which authorizes the Attorney General, in certain circumstances, to suspend deportation of an alien who is not "ineligible to naturalization." The Board of Immigration Appeals denied his application, according to appellant's uncontroverted allegation in his complaint, "solely and exclusively" because appellant's exemption from military service had been secured at the price of a perpetual bar to naturalization. STSA § 3(a), 50 U.S.C.A.Appendix, § 303(a). After exhausting his administrative remedies, appellant sued in the District Court for a declaratory judgment and an injunction against the Attorney General and the Commissioner of Immigration, contending that he was not "residing in the United States" at the time he claimed exemption from service and therefore STSA § 3(a) is inapplicable to him. Appellant was not in custody at the time he brought suit, nor is he today. The District Court sustained defendant's motion to dismiss the complaint.

We think the District Court erred. The initial problem posed is not the availability of review but rather the method by which it may be sought. Is habeas corpus the exclusive remedy to test the legality of a deportation order, as appellee insists, or did the Declaratory Judgment and Administrative Procedure Acts add to the available methods of review?

Before the enactment of these measures, habeas corpus was the sole means of questioning the jurisdiction, fairness and conformity to statute of deportation proceedings.¹ But with the passage of the Declaratory Judgment Act, 48 Stat. 955, 28 U.S.C.A. §§ 2201, 2202, the courts were given the power to forestall injury by deciding justiciable cases or controversies at the earliest possible moment. Nor did the use of the declaratory judgment in immigration proceedings await the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. In 1938 the Supreme Court sustained this court's decision in Perkins v. Elg, 1938, 69 App.D.C. 175, 180-1, 99 F.2d 408, 413-4, modified and affirmed, 1939, 307 U.S. 325, 349-50, 59 S.Ct. 884, 896, 83 L.Ed. 1320, 1333-4, and held the declaratory judgment procedure available to test the legality of the deportation of one claiming to be a citizen of the United States. The interpretation given the new procedure in the Perkins case accorded with the purpose of the Act which was, inter alia, "To enable public duties and powers to be established without the cumbersome and technical prerequisites of mandamus, certiorari, injunction, prohibition, or habeas corpus." Borchard, Declaratory Judgments 288 (2d Ed., 1941).

In view of the decision in Perkins v. Elg, supra, it may well be that even if the Administrative Procedure Act had not been enacted, declaratory judgment procedure would have been available after a deportation order had been entered against an alien. At any rate, the Elg case disposes of appellees' assertion that habeas corpus is the exclusive remedy in deportation cases. But § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009 (1948 Supp.) makes it unnecessary to project that line of authority to the present case. That section makes judicial review available at the suit of

"(a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute * * *.

"(b) The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction * * *.

"(c) Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review * * *." (Emphasis supplied throughout.)

The only exceptions to this sweeping grant of review authority exist where "(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion." 5 U.S.C.A. § 1009 (1948 Supp.). Neither exception is satisfied in this case. The immigration statute does not on its face preclude judicial review but merely states that "the decision of the Attorney General shall be final." 8 U.S. C.A. § 155(a). Such a statutory declaration of finality, which has not precluded review by way of habeas corpus for a considerable number of years, can hardly qualify now as a bar to review under this statute. United States ex rel. Trinler v. Carusi, 3 Cir., 1948, 166 F.2d 457, 461. The decision of the Attorney General is "final" in much the same sense as was the decision of local boards in selective service cases. The Supreme Court said of the finality accorded the latter, as might well be said of the statute here involved,² that it limited the scope of review to questions of conformity to governing statutes and regulations. "Congress chose not to give administrative action under the Selective Service Act the customary scope of judicial review which obtains under other statutes." Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423, 428-429, 90 L.Ed. 567, 573. In addition, the legislators expressly recognized that "it has never been the policy of Congress to prevent the administration of its own statutes from being judicially confined to the scope of authority granted or to the objectives specified." Sen. Rep. No. 752, 79th Cong., 1st Sess. (1945), reprinted in Sen. Doc. No. 248, 79th Cong., 2d Sess., p. 212 (1946); H. R. Rep. No. 1980, 79th Cong., 2d Sess. (1946), id. at p. 275; see statement of Rep. Walter, 92 Cong. Rec. 5654 (1946).

Legislative discussion of the second exception, agency action "committed to agency discretion," similarly reveals no intention to bar the sort of review sought herein. For it was made clear to Congress that "questions of law properly presented" were not withdrawn from review. See House and Senate Committee Reports cited supra, reprinted in Sen. Doc. No. 248, 79th Cong., 2d Sess., pp. 212, 275 (1946); statement of Rep. Walter, 92 Con. Rec. 5654 (1946). And since there is no doubt that, if appellant were in custody, habeas corpus would lie to examine into the fairness of the proceedings and their conformity to the governing statutes, it seems obvious that no completely unreviewable discretion has been vested in the Attorney General, within the meaning of the "discretion" exception. United States ex rel. Trinler v. Carusi, 3 Cir., 1948, 166 F.2d 457, 461.

In essence, appellees' contention is that the legislative history of the Administrative Procedure Act evidences an intention to freeze the remedies previously used to test each agency's actions. Under this view, "any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus)" would by an unexplained transference process read "the hitherto applicable procedure" and hence codify the case law holding habeas corpus the exclusive remedy in deportation proceedings.³ We believe, however, that the language of the statute is clear and that it is satisfied by an interpretation which permits the use of any one of the parenthetically enumerated remedies which fits the circumstances of the case then before the court.

Even if the plain meaning of the statutory language were to be ignored and the legislative history examined for a different content, the search would be fruitless. Only when a "special statutory review" exists under § 10(b) is the use of "any applicable form of legal action" restricted. But examination of the Senate and House reports makes it quite clear that § 10(b)'s reference to "special statutory review" includes only those "common-law forms referred to and adopted by other statu...