Blagaic v. Flagg, 13581.

• Decision Date: 15 June 1962
• Docket Number: No. 13581.,13581.
• Parties: Jakov BLAGAIC, Plaintiff-Petitioner, v. W. T. FLAGG, District Director, Chicago District, Immigration and Naturalization Service, Defendant-Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

304 F.2d 623 (1962)

Jakov BLAGAIC, Plaintiff-Petitioner, v. W. T. FLAGG, District Director, Chicago District, Immigration and Naturalization Service, Defendant-Respondent.

No. 13581.

United States Court of Appeals Seventh Circuit.

June 15, 1962.

Nathan T. Notkin, Chicago, Ill., for petitioner.

James P. O'Brien, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., for respondent, John Peter Lulinski, Asst. U. S. Atty., of counsel.

Before KNOCH, CASTLE and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Petitioner, Jakov Blagaich,¹ seeks review of a decision of the Regional Commissioner of the Immigration and Naturalization Service denying his application for a stay of deportation pursuant to Section 243(h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253 (h).²

Petitioner is a native of Yugoslavia who entered the United States on April 29, 1956 at Philadelphia as a crewman aboard the S. S. Kosmaj. He was given a twenty-nine days' leave but did not return to his ship at the expiration of his leave.

A deportation hearing was had and petitioner was ordered deported in April, 1957 on the ground that he had remained in the United States longer than his visa permitted. The propriety of the order of deportation is not questioned in this appeal.

After petitioner was ordered deported he applied for a withholding of deportation under Section 1253(h) on the ground that if returned to Yugoslavia, he would be subject to physical persecution because of his religion and his political opinions.

On October 14, 1957 the Special Inquiry Officer of the Immigration and Naturalization Service recommended that deportation be withheld. On June 18, 1958 the Regional Commissioner, however, overruled the decision of the Special Inquiry Officer and denied petitioner's application for withholding of deportation.

Petitioner commenced the present action for review of the Commissioner's decision August 25, 1961 in the United States District Court for the Northern District of Illinois. On December 4, 1961 the case was transferred, on the government's motion, to this Court pursuant to Section 5(b) of Pub.L. 87-301, 8 U.S.C.A. § 1105a, Note.

We are met at the outset with the question whether this Court has jurisdiction to review initially the Regional Commissioner's decision.

A new section of the Immigration and Nationality Act, Section 106, was enacted by Congress September 26, 1961 as an amendment to the Act. (Section 5(a), Pub.L. 87-301), 8 U.S.C.A. § 1105a. This amendment became effective October 26, 1961 in accordance with the provisions of Section 5(b) of Pub.L. 87-301.

The purpose of the amendment was to eliminate delay in reviewing deportation orders by providing for review initially by courts of appeals rather than by district courts except in criminal prosecutions under certain circumstances and in habeas corpus proceedings.³ This was accomplished by providing under Section 1105a that the procedure prescribed by 5 U.S.C.A. §§ 1031-1042 shall be "the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title * * *" 8 U.S.C.A.. 5 U.S.C.A. §§ 1031-1042 provide for the initial judicial review by courts of appeals of specified administrative final orders issued by certain administrative agencies such as the Federal Power Commission, the Secretary of Agriculture, the United States Maritime Commission, and the Atomic Energy Commission.

The government contends this Court lacks jurisdiction to review the Regional Commissioner's ruling initially because the denial of petitioner's application to withhold deportation was made pursuant to administrative proceedings under 8 U.S.C.A. § 1253(h), not under 8 U.S.C.A. § 1252(b)⁴, and therefore the denial of a stay was not a final order of deportation.

Petitioner admits that the language of the statute refers to "final orders of deportation," but contends that the intent of Congress in enacting Section 1105a was to minimize delays in obtaining the deportation of persons who use the machinery of the courts to delay their ultimate deportation. Consequently, it is argued that Congress must have intended that the courts of appeals have initial jurisdiction to review denials of discretionary relief from deportation as well as final orders of deportation.

The language of Section 1105a is clear and unambiguous. Jurisdiction now lies initially in the courts of appeals to review "final orders of deportation" made pursuant to 8 U.S.C.A. § 1252(b). We think, however, that the review provisions of Section 1105a should not be given the narrow interpretation that the government contends for.

While it is true that the only question is whether the Attorney General has abused his discretion in refusing to withhold deportation under the provisions of Section 1253(h), this question involves the execution or suspension of the deportation order, and therefore it is ancillary to the order. If the withholding of deportation is not granted, petitioner will be deported; thus, in a realistic sense the denial of a stay is a part of the deportation order.

Section 1253(h) is only applicable after a final order of deportation has been issued and therefore is pari materia with Section 1252(b). This is true even though the request for a stay of deportation under 1253(h) involves different questions of fact and law from those under 1252(b),⁵ and until recently was determined by the Immigration and Naturalization Service in a separate proceeding under the applicable regulation.⁶

The issuance by the Immigration and Naturalization Service of a new regulation⁷ by reason of which it asserts determinations of the Attorney General under Section 1253(h) now come within the review provisions of Section 1105a impairs the government's argument that this Court is without jurisdiction in the instant case. It is neither logical nor in accordance with recognized rules of statutory interpretation, we think, to hold that by merely changing the regulation governing the administrative proceeding under 1253(h) the courts of appeals now have initial review jurisdiction which they did not possess before the change in the regulation.

Thus, while a change in the regulation governing the proceeding under 1253(h) does not give this Court jurisdiction if it had none before, such change indicates that the government likewise now views the discretionary proceedings under 1253 (h) as being ancillary to the deportation proceedings under 1252(b).

We hold that this Court has jurisdiction by reason of 8 U.S.C.A. § 1105a to initially review the action of the Regional Commissioner of the Immigration and Naturalization Service in denying petitioner's application for a stay of deportation.

Going to the merits of the review, the question presented is: Did the Regional Commissioner acting in behalf of the Attorney General abuse the discretion allowed him in determining the application for a stay? As we recently said in Soric v. Flagg, 7 Cir., 303 F.2d 289, "Absent an abuse of discretion, it is well-settled in this court that we cannot substitute our judgment for that of the Attorney General."

The record shows that petitioner was born in 1913 and always resided in Yugoslavia. He had been a seaman since 1938. He testified that from 1946 to 1953 he was unable to obtain employment as a seaman because he was employed on a ship during the war while "the partisans were fighting for the cause and they now needed employment;" that from 1946 to 1953 he worked on his father's farm; and that beginning in 1953 he was continuously employed as a seaman on a Yugoslav ship until he deserted the S. S. Kosmaj in 1956.

Petitioner claims that he will be physically persecuted if deported to his native country because: (1) he attends church; (2) he is opposed to the...