Hitai v. Immigration and Naturalization Service
Decision Date | 29 March 1965 |
Docket Number | No. 358,Docket 29176.,358 |
Citation | 343 F.2d 466 |
Parties | Isao HITAI, also known as Mario Isao Hitai, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Second Circuit |
Francis L. Giordano, Brooklyn, N. Y., for petitioner.
James G. Greilsheimer, Sp. Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Francis J. Lyons, Sp. Asst. U. S. Atty., New York City, of counsel), for respondent.
Before MOORE, KAUFMAN and HAYS, Circuit Judges.
Petitioner, a citizen of Brazil, was born in Brazil. His father, who is now dead, was a Brazilian citizen as is his mother who is still living. Both parents were, as the special inquiry officer found, "natives of Japan of the Japanese or Asiatic race."
Petitioner entered this country as a temporary visitor for pleasure on January 25, 1964, with permission to remain in that status until June 30, 1964.
A visa is not available under the Japanese quota.
The Board of Immigration Appeals approved the special inquiry officer's decision, but, rather than ordering deportation, granted petitioner permission to depart voluntarily.
The Immigration and Naturalization Service concedes that this order is reviewable by this Court under Section 106(a) of the Act5 as interpreted in Foti v. Immigration and Naturalization Serv., 375 U.S. 217, 84 S.Ct. 306, 11 L. Ed.2d 286 (1963),6 and we concur.
Petitioner challenges the constitutionality of Section 202(b) (4) on the ground that it prescribes a standard which is arbitrary and unreasonably discriminatory. He argues that a law that discriminates betwen native-born Brazilians for the purpose of granting permanent residence in the United States, by assigning those Brazilians whose ancestry is attributable to certain "Asiatic races" to a quota area, which has a definite limit, and permitting other Brazilians whose ancestry is not so attributable to enter the United States as permanent residents without any quota area limit, violates the requirements of due process of law guaranteed by the Fifth Amendment and those standards of equal protection of the laws contained by implication in that amendment.
We are constrained to reject petitioner's claim that Section 202(b) (4) as here applied is unconstitutional. The exclusion and deportation of aliens pursuant to statute falls within that category of policy decisions, which, "so far as the subjects affected are concerned, are necessarily conclusive upon all * * * the government's departments and officers," including "the judiciary." The Chinese Exclusion Case, 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068 (1889). In Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952), Mr. Justice Jackson said:
(Footnote omitted.)
See also Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893).
Petitioner also bases his argument on Article 55 of the United...
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