Cheng Fan Kwok v. Immigration and Naturalization Service, 638

• Decision Date: 10 June 1968
• Docket Number: No. 638,638
• Parties: CHENG FAN KWOK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE
• Court: U.S. Supreme Court

392 U.S. 206

88 S.Ct. 1970

20 L.Ed.2d 1037

CHENG FAN KWOK, Petitioner,

v IMMIGRATION AND NATURALIZATION SERVICE.

No. 638.

Argued May 2, 1968.

Decided June 10, 1968.

Jules E. Coven, New York City, for petitioner.

Charles Gordon, Washington, D.C., for respondent.

William H. Dempsey, Jr., Washington, D.C., as amicus curiae, in support of judgment below, at the invitation of the Court.

Mr. Justice HARLAN delivered the opinion of the Court.

The narrow question presented by this case is whether jurisdiction to review the denial of a stay of deportation, if the pertinent order has not been entered in the course of a proceeding conducted under § 242(b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U.S.C. § 1252(b), is, under § 106(a) of the Act, 75 Stat. 651, 8 U.S.C. § 1105a(a), vested exclusively in the courts of appeals.¹ The question arises from the following circumstances.

Petitioner, a native and citizen of China, evidently entered the United States in 1965 as a seaman.² The terms of his entry permitted him to remain in this country for the period during which his vessel was in port, provided that this did not exceed 29 days. See 8 U.S.C. § 1282(a).³ He deserted his vessel, and remained unlawfully in the United States. After petitioner's eventual apprehension, deportation proceedings were conducted by a special inquiry officer under the authority of § 242(b). Petitioner conceded his deportability, but sought and obtained permission to depart the United States voluntarily.⁴ Despite his protestations of good faith, petitioner did not voluntarily depart, and was ultimately ordered to surrender for deportation. He then requested a stay of deportation from a district director of immigration, pending the submission and disposition of an application for adjustment of status under 8 U.S.C. § 1153(a)(7) (1964 ed., Supp. II).⁵ The district director concluded that petitioner is ineligible for such an adjustment of status, and denied a stay of deportation.

Petitioner thereupon commenced these proceedings in the Court of Appeals for the Third Circuit, petitioning for review of the denial of a stay. The Court of Appeals held that the provisions of § 106(a), under which it would otherwise have exclusive jurisdiction to review the district director's order, are inapplicable to orders denying ancillary relief unless those orders either are entered in the course of a proceeding conducted under § 242(b), or are denials of motions to reopen such proceedings. The court dismissed the petition for want of jurisdiction. 381 F.2d 542. We granted certiorari because the courts of appeals have disagreed as to the proper construction of the pertinent statutory provisions.⁶ 390 U.S. 918, 88 S.Ct. 848, 19 L.Ed.2d 978. For reasons that follow, we affirm.

I.

It is useful first to summarize the relevant provisions of the Immigration and Nationality Act and of the regulations promulgated under the Act's authority. Sec- tion 242(b) provides a detailed administrative procedure for determining whether an alien may be deported. It permits the entry of an order of deportation only upon the basis of a record made in a proceeding before a special inquiry officer, at which the alien is assured rights to counsel, to a reasonable opportunity to examine the evidence against him, to cross-examine witnesses, and to present evidence in his own behalf. By regulation, various forms of discretionary relief may also be sought from the special inquiry officer in the course of the deportation proceeding; an alien may, for example, request that his deportation be temporarily withheld, on the ground that he might, in the country to which he is to be deported, 'be subject to persecution * * *.' See 8 U.S.C. § 1253(h) (1964 ed., Supp. II); 8 CFR § 242.8(a).

Other forms of discretionary relief may be requested after termination of the deportation proceeding. The regulations thus provide that an alien 'under a final administrative order of deportation' may apply to the district director 'having jurisdiction over the place where the alien is at the time of filing' for a stay of deportation. 8 CFR § 243.4. The stay may be granted by the district director 'in his discretion.' Ibid. If the stay is denied, the denial 'is not appealable' to the Board of Immigration Appeals. Ibid.

Section 106(a)⁷ provides that the procedures for judicial review prescribed by the Hobbs Act, 64 Stat. 1129, 68 Stat. 961, 'shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hearafter made against aliens * * * pursuant to administrative proceedings under section 242(b) of this Act * * *.' These procedures vest in the courts of appeals exclusive jurisdiction to review final orders issued by specified federal agencies. In situations to which the provisions of § 106(a) are inapplicable, the alien's remedies would, of course, ordinarily lie first in an action brought in an appropriate district court.

The positions of the various parties may be summarized as follows. We are urged by both petitioner and the Immigration Service to hold that the provisions of § 106(a) are applicable to the circumstances presented by this case, and that judicial review thus is available only in the courts of appeals. The Immigration Service contends that § 106(a) should be understood to embrace all determinations 'directly affecting the execution of the basic deportation order,' whether those determinations have been reached prior to, during, or subsequent to the deportation proceeding.⁸ In contrast, amicus ⁹ urges, as the Court of Appeals held, that § 106(a) encompasses only those orders made in the course of a proceeding conducted under § 242(b) or issued upon motions to reopen such proceedings.

II.

This is the third case in which we have had occasion to examine to effect of § 106(a). In the first, Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281, the petitioner, in the course of a proceeding conducted under § 242(b), conceded his deportability but requested a suspension of deportation under § 244(a)(5). The special inquiry officer denied such a suspension, and petitioner's appeal from the denial was dismissed by the Board of Immigration Appeals. Petitioner commenced an action in the district court, but the action was dismissed on the ground that, under § 106(a), his exclusive remedy lay in the courts of appeals. He then petitioned for review to the Court of Appeals for the Second Circuit, but it dismissed for want of jurisdiction. A divided court held en banc that the procedures of § 106(a) were inapplicable to denials of discretionary relief under § 244(a)(5). 308 F.2d 779. On certiorari, we reversed, holding that 'all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals * * * are * * * included within the ambit of the exclusive jurisdiction of the Court of Appeals under § 106(a).' 375 U.S., at 229, 84 S.Ct. at 314.

In the second case, Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90, petitioner moved before the Board of Immigration Appeals to reopen proceedings, previously conducted under § 242(b), that had terminated in an order for his deportation. The Board denied relief. The Court of Appeals for the Ninth Circuit concluded that the Board's denial was not embraced by § 106(a), and dismissed the petition for want of jurisdiction. 308 F.2d 347. On certiorari, this Court held, in a brief per curiam opinion, that such orders were within the exclusive jurisdiction of the courts of appeals.

Although Foti strongly suggests the result that we reach today, neither it nor Giova can properly be regarded as controlling in this situation. Unlike the order in Foti, the order in this case was not entered in the course of a proceeding conducted by a special inquiry officer under § 242(b); unlike the order in Giova the order here did not deny a motion to reopen such a proceeding. We regard the issue of statutory construction involved here as markedly closer than the questions pre- sented in those cases; at the least, it is plainly an issue upon which differing views may readily be entertained. In these circumstances, it is imperative, if we are accurately to implement Congress' purposes, to 'seiz(e) everything from which aid can be derived.' Fisher v. Blight, 2 Cranch 358, 386, 2 L.Ed. 304.

It is important, first, to emphasize the character of the statute with which we are concerned. Section 106(a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. Utah Junk Co. v. Porter, 328 U.S. 39, 44, 66 S.Ct. 889, 892, 90 L.Ed. 1071. Further, as a statute addressed entirely to 'specialists,' it must, as Mr. Justice Frankfurter observed, 'be read by judges with the minds of * * * specialists.' ¹⁰

We cannot, upon close reading, easily reconcile the position urged by the Immigration Service with the terms of § 106(a). A denial by a district director of a stay of deportation is not literally a 'final order of deportation,' nor is it, as was the order in Foti, entered in the course of administrative proceedings conducted under § 242(b).¹¹ Thus, the order in this case was issued more than three months after the entry of the final order of deportation,¹² in proceedings entirely distinct from those conducted under § 242(b), by an officer other than the special inquiry officer who, as required by § 242(b), presided over the deportation proceeding. The order here did not involve the denial of a motion to reopen proceedings conducted under § 242(b), or to reconsider any final order of deportation. Concededly, the application for a stay assumed the prior existence of an order...