634 F.2d 964 (5th Cir. 1981), 79-3219, United States ex rel. Marcello v. District Director of Immigration & Naturalization Service, New Orleans, La.

Docket Nº:79-3219.
Citation:634 F.2d 964
Case Date:January 22, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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634 F.2d 964 (5th Cir. 1981)

UNITED STATES of America ex rel. Carlos MARCELLO, Petitioner-Appellee,




No. 79-3219.

United States Court of Appeals, Fifth Circuit

January 22, 1981

Rehearing and Rehearing En Banc Denied March 13, 1981.

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James P. Morris, Dept. of Justice, Gen. Litigation & Legal Advice Sec., Criminal Div., Washington, D. C., for respondent-appellant.

Virgil M. Wheeler, Jr., New Orleans, La., Jack Wasserman, Washington, D. C., Thomas M. Cooley II, Pittsburgh, Pa., for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, GEE and REAVLEY, Circuit Judges.

GEE, Circuit Judge:

Carlos Marcello, a foreign national permanently resident in the United States, was first ordered deported in 1953, almost thirty years ago, on the basis of a 1938 marijuana conviction. The order was not executed until 1961, however, when it was apparently executed illegally: arguably Marcello was shanghaied to Guatemala without prior notice to him or his attorney by means of a Guatemalan birth certificate that the Immigration and Naturalization Service (INS) may have known was a forgery. About a month later, Marcello reentered the United States without permission and, later in 1961, was the subject of another deportation order, this one based both on the 1938 conviction and the illegal entry after the apparently irregular 1961 deportation. The validity of neither the 1953 order nor of the 1961 order, insofar as it rests on the 1938 conviction, is contested here.

In 1972, Marcello filed an application for suspension of deportation, and in 1976 the Board of Immigration Appeals (Board) denied the application on two independent grounds: that Marcello had not shown the good moral character required for suspension by 8 U.S.C. § 1254(a) and that the Board did not choose to exercise its discretion to suspend deportation. The Board relied primarily on a 1968 conviction for assault and expressly stated that it did not consider Marcello's reentry after the 1961 deportation.

Marcello then filed this habeas action in federal district court. The court, after concluding that it had habeas jurisdiction, found that the Board both erred in finding that Marcello lacked good moral character and abused its discretion in denying suspension of deportation. The court vacated the Board's decision and remanded the cause for a determination of the validity of the 1961 deportation and a reassessment of Marcello's character. 472 F.Supp. 1199. We reverse.

Although the facts of Marcello's case are relatively straightforward, we find the legal issues posed by astute counsel on both sides both doubtful and difficult. We treat them in what seems to us their logical order.

Is Habeas Available as a Remedy?

Commendably, as a matter of advocacy, the government's first contention goes for the jugular. It urges us to hold that the district court lacked jurisdiction to pass on this matter at all. The contention is not without force, and the reasons why we must reject it require some explication.

In 1961, concerned by the lengthy delays in deportations occasioned by developing judicial

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precedent, 1 the Congress attempted to streamline these arrangements. It did so by enacting 8 U.S.C. § 1105a, which provides that the courts of appeals are to be the "sole" organs of review for final deportation orders and thus restricts resort to the district courts in such cases. The legislative purpose and background of this statute are extensively reviewed in Foti v. Immigration Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), and need not be further discussed here except in the one respect that is material.

The sweep of section 1105a could not be a clean one because of Article I, section 9 of the Constitution, providing, among other things, that the Great Writ should not be suspended unless rebellion or invasion was in progress. This Congress recognized in section 1105a(a)(9) of the statute, which provides that an "alien held in custody pursuant to an order of deportation" can seek judicial relief via habeas corpus. The government urges upon us that since Marcello is not presently "held in custody," but merely subjected to reporting requirements and travel restrictions, habeas relief is not available to him.

It is true that in 1961, when the amending act was passed, "custody" for habeas purposes meant primarily physical detention by the government. Since most aliens subject to deportation orders are not physically detained, the habeas exception to exclusive review in the courts of appeals was then a minor one. Since 1961, however, the Supreme Court has expanded the concept of custody for habeas proceedings after conviction to encompass any significant restraint on liberty, including parole, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and release on one's own recognizance, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). If this broader notion of custody applies generally to habeas under section 1105a(a)(9), then the court below had jurisdiction, 2 habeas commencing in the district court remains an alternative vehicle of review in most deportation proceedings, and the judicial reform that Congress attempted to bring about by enacting section 1105a-elimination of the district court step in review of deportation orders-is in great part stultified.

Congressional Intent in Enacting Section 1105a

As we have discussed briefly above, see note 1 and accompanying text, by 1961 Congress had become concerned at the proliferation and overlapping modes for review of deportation orders divined by the federal courts. The availability of so many options, it felt, enabled astute counsel effectively to nullify such orders by interposing interminable procedural delays. Cited at length in the legislative history were examples drawn from the history of the long campaign of the government to deport Marcello himself. 3

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Today, twenty years later, that campaign continues.

The result of this congressional concern was the passage of 8 U.S.C. § 1105a. By that enactment, the Congress provided a single statutory method for review of final deportation orders, abolishing all others, with one exception. We need not concern ourselves at length with the normal mode of review provided, since the time for Marcello to have pursued it is long past, and its provisions are not before us. Generally speaking, however, it sought to eliminate the inordinate delays that Congress perceived by providing for substantial-evidence review of the INS deportation proceeding in the courts of appeals, eliminating any initial resort to the district courts and requiring that such review be sought within six months of the final deportation order. See Foti, 375 U.S. at 224-36, 84 S.Ct. at 311-315. It is the exception to this method of review, however, that is before us in this case, Marcello having chosen to proceed under its provisions. It states: "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(a)(9).

The legislative history of section 1105a leaves little doubt that by enacting it Congress meant to establish two mutually exclusive modes for reviewing deportation orders: 4 a general scheme of statutory review for cases where the alien was not "held in custody" and a provision for habeas review where he was. The Report of the House Committee provides on its first page that:

The bill provides that with certain specified exceptions (made necessary by the unique subject matter of the bill), all the provisions of the act of December 29, 1950 (64 Stat. 1129, 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to and be the sole and exclusive procedure for judicial review of orders of deportation. In substance, an alien aggrieved by such an order may seek judicial review by filing a petition in the U.S. circuit court of appeals. The writ of habeas corpus is specifically reserved to an alien held in custody pursuant to an order of deportation. 5

Also included in the report is the text of a letter from then Deputy Attorney General, now Justice, Bryon R. White to the chairman of the committee explaining, in response to his request, the Justice Department's view of the legislation and providing in pertinent part:

Aliens seeking review of administrative orders should be given full and fair opportunity to do so, but the present possibilities of review pose undesirable obstacles to deportation of aliens who have been ordered deported and have had their day in court. An alien subject to a deportation order, having lost his case in a declaratory judgment or injunction proceeding may thereafter sue out a writ of habeas corpus when taken into custody. Moreover, as the law now stands, it is possible to seek relief by habeas corpus repeatedly.

The bill proposes to meet this problem by providing an exclusive method of review of deportation orders for aliens not in custody. This would be by petition for review in the appropriate court of appeals. The procedure is generally as prescribed by the act of December 29, 1950 (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031), relating to judicial review of orders of Federal agencies. The bill also provides "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." In order to meet the problem of repeated proceedings, no petition for review by the court of appeals or for habeas corpus may be entertained if the validity of...

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