Braude v. Wirtz

• Citation: 350 F.2d 702
• Decision Date: 14 September 1965
• Docket Number: No. 19491.,19491.
• Parties: Emanuel BRAUDE et al., Appellant, v. W. Willard WIRTZ, as Secretary of Labor of the United States, Robert Goodwin, as Administrator of the Bureau of Employment Security, Dean Rusk, as Secretary of State of the United States, Glenn E. Brockway, as California Regional Administrator of the Bureau of Employment Security, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

350 F.2d 702 (1965)

Emanuel BRAUDE et al., Appellant, v. W. Willard WIRTZ, as Secretary of Labor of the United States, Robert Goodwin, as Administrator of the Bureau of Employment Security, Dean Rusk, as Secretary of State of the United States, Glenn E. Brockway, as California Regional Administrator of the Bureau of Employment Security, Appellees.

No. 19491.

United States Court of Appeals Ninth Circuit.

September 14, 1965.

Stuart Simke, Green, Simke & Lasher, and Burton Marks, Beverly Hills, Cal., for appellants.

John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Robt. V. Zener, Attys., Dept. of Justice, Washington, D. C., Manuel Real, U. S. Atty., Los Angeles, Cal., for appellees.

Before JERTBERG and ELY, Circuit Judges, and POWELL, District Judge.

JERTBERG, Circuit Judge:

This action was brought in the United States District Court for the Southern District of California, Central Division by 181 Mexican nationals hereinafter "Aliens" challenging certain administrative determinations made by appellees affecting the eligibility of such aliens to obtain immigrant visas to enter the United States. Also joined as plaintiffs below are 6 agricultural corporations, partnerships, and associations hereinafter "Growers" doing business in California, and an attorney, Braude, who specializes in aiding Mexican nationals to immigrate into the United States for employment by California growers.

The District Court granted appellees' motion to dismiss the action stating as to both the Aliens and Growers "that the complaint does not state a claim upon which relief can be granted * * *." The attorney, Braude, does not appeal. The jurisdiction of the District Court is founded upon 28 U.S.C.A. § 2201 (declaratory judgments), and 5 U.S.C.A. § 1009 (Administrative Procedure Act). The jurisdiction of this court is based upon 28 U.S.C.A. § 1291, as amended, (1951).

Under the provisions of Section 212 of the Immigration and Nationality Act 8 U.S.C.A. § 1182,¹ certain classes of aliens are ineligible to receive visas and are excluded from admission into the United States.

The complaint alleges, in substance, that pursuant to those provisions the Secretary of Labor, by a delegation of his authority through the Bureau of Employment Security to the California Regional Administrator of the Bureau of Employment Security, determined: (1) that notwithstanding a determination to the contrary by the Department of Labor of the State of California, the employment of the aforesaid aliens in the United States "will adversely affect the wages and working conditions of the workers in the United States similarly employed"; and (2) that one of the grower corporations (an appellant here) was not an "employer" within the meaning of the Bureau of Employment Security's rules for determining the validity of (a) offers of employment and (b) the possible likelihood that applicants for visas may become "public charges".

It is further alleged that by these determinations the Aliens are unable to present to an American Consul in Mexico the requisite qualifications properly satisfied so that he may act favorably upon their applications for visas. Appellants seek judicial review of the determinations. Two errors are specified:

1. The Federal District Court erred in granting appellees\' motion to dismiss on the grounds that the complaint did not state a claim upon which relief can be granted as to the aliens.

2. The Federal District Court erred in granting appellees\' motion to dismiss on the grounds that the complaint did not state a claim upon which relief can be granted as to the growers.

I

The aliens first argue that "they are in the same category as aliens in exclusion cases". It is argued that judicial review has traditionally been extended to adverse administrative determinations in such cases.

However, such has not been the rule. See, generally, Gordon & Rosenfield, Immigration Law and Procedure, § 8.2, pp. 809-812, (1964).

In Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895), it was contended that although immigration officers had authority to exclude aliens from coming into the United States, if an alien was entitled of right to enter the country and was nevertheless excluded by such officers, the latter exceeded their jurisdiction and the courts might intervene. The court, speaking through Mr. Justice Harlan, said:

"That view, if sustained, would bring into the courts every case of an alien claiming the right to come into the United States under some law or treaty, but was prevented from doing so by the executive branch of the government. This would defeat the manifest purpose of congress in committing to subordinate immigration officers and to the secretary of the treasury exclusive authority to determine whether a particular alien seeking admission into this country belongs to the class entitled by some law or treaty to come into the country, or to a class forbidden to enter the United States. Under that interpretation of the act of 1894, the provision that the decision of the appropriate immigration or custom officers should be final, unless reversed on appeal to the secretary of the treasury,² would be of no practical value.

"The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."

In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 543, 70 S.Ct. 309, 312, 94 L.Ed. 317, (1950), the court pointed out that aliens may not seek admission to this country under any claim of right but that such is a privilege granted by the sovereign United States government. The court, in reiterating the principle adverted to above, said:

"When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.

"Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such autority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States, 142 U.S. 651, 659-660, 12 S.Ct. 336, 338, 35 L.Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 713-714, 13 S. Ct. 1016, 1022, 37 L.Ed. 905; Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881. Cf. Yamataya v. Fisher, 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721."

For the first time, in Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956) the Supreme Court held that exclusion orders may be challenged, not only by habeas corpus, but also by declaratory judgment action and that the finality provision of the 1952 Act 8 U.S.C.A. § 1226(c) refers only to administrative finality.

In 1961 Congress enacted § 106(b) of the Immigration and Nationality Act, 8 U.S.C.A. § 1105a (b) which contracted the scope of judicial review. It is as follows:

"Limitation of certain aliens to habeas corpus proceedings

(b) Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under the provisions of section 1226 of this title on comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise."

The passage of this legislation was intended to make hitherto divergent methods of review uniform and to prevent certain dilatory tactics employed by those against whom orders of deportation and exclusion had issued. H.R.Rep.No. 1086, 87th Cong., 1st Sess., (1961), U.S. Code Congressional and Administrative News, 1961, pp. 2966-2977; Foti v. Immigration and Naturalization Service, 375 U.S. 217, 224, 84 S.Ct. 306, 11 L.Ed. 2d 281 (1963). We think it not without significance that Congress has limited judicial review to those instances where not only is the alien within the borders of this country but also is in detention.

Appellant aliens here argue that although they have not sought admission at the borders of this country, that fact is not decisive.

We have been unable to discover a case, and appellants assert they are unable to cite one to us, wherein aliens in these circumstances have been granted judicial review of like or similar administrative determinations. In Brownell v. Tom We Shung, supra, while granting the right of review by a declaratory judgment action in an exclusion case, the court added a precautionary note:

"We do not suggest, of course, that an alien who has never presented himself at the borders of this country may avail himself of the declaratory judgment action by bringing the action from abroad." Footnote 3, 352 U.S. at p. 184, 77 S.Ct. at p. 255.

In Montgomery v. Ffrench, 299 F.2d 730 (8th Cir. 1962), appellants were adopting parents who, by a declaratory judgment action, sought judicial review of an administrative determination denying their petition to classify a nonresident alien child as an "eligible orphan" although said child had never been within, or at, the borders of the United States. The court said, at p. 735:

"The Act providing for the admission into the United States of alien orphans established only a privilege, a privilege which could be exercised only with the approval of the Attorney General or his designate. * * * Under these circumstances the courts possess no right or power to question the propriety or

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