Brownell v. We Shung, No. 43

CourtUnited States Supreme Court
Writing for the CourtCLARK
Citation352 U.S. 180,77 S.Ct. 252,1 L.Ed.2d 225
Decision Date17 December 1956
Docket NumberNo. 43
PartiesHerbert BROWNELL, Jr., Attorney General of the United States, Petitioner, v. Tom WE SHUNG

352 U.S. 180
77 S.Ct. 252
1 L.Ed.2d 225
Herbert BROWNELL, Jr., Attorney General of the United States, Petitioner,

v.

Tom WE SHUNG.

No. 43.
Argued Nov. 13, 1956.
Decided Dec. 17, 1956.

Mr. Oscar H. Davis, Washington, D.C., for petitioner.

Mr. Andrew Reiner, New York City, for respondent.

Page 181

Mr. Justice CLARK delivered the opinion of the Court.

In Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, we held that an alien, ordered deported by the Attorney General under the provisions of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq. might test the legality of such order in a declaratory judgment action brought under § 10 of the Administrative Proceedure Act, 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009. The sole question to be determined here is whether the legality of an exclusion order entered under the relevant provisions of the same 1952 Act must be challenged by habeas corpus, or whether it may also be reviewed by an action for declaratory judgment under § 10 of the Administrative Procedure Act. The Court of Appeals held the latter to be an appropriate remedy. 97 U.S.App.D.C. 25, 227 F.2d 40. We granted certiorari, 351 U.S. 905, 76 S.Ct. 697, because of the importance of the question in the administration of the immigration law. We conclude that either remedy is available in seeking review of such orders. This makes it unnecessary for us to pass upon other questions raised by the parties.

Shung, a Chinese alien, presented himself at San Francisco on November 28, 1947, claiming admission to the United States under the provisions of the War Brides Act of December 28, 1945, 59 Stat. 659, 8 U.S.C. (1946 ed.) § 232. He testified under oath that he was the blood son of an American citizen who served in the United States armed forces during World War II. In January 1948 and again in February 1949, Boards of Special Inquiry held Shung inadmissible on the ground that he had not established the alleged relationship. The Board of Immigration Appeals Affirmed. Shung first sought judicial review of this order by a declaratory judgment action instituted before the effective date of the Immigration and Nationality Act of 1952. His complaint was dismissed on the ground that the order was valid. Tom We Shung v.

Page 182

McGrath, D.C., 103 F.Supp. 507, affirmed sub nom. Tom We Shung v. Brownell, 93 U.S.App.D.C. 32, 207 F.2d 132. We vacated the judgment and remanded the cause to the District Court with directions to dismiss it for lack of jurisdiction, 346 U.S. 906, 74 S.Ct. 237, 98 L.Ed. 405, on the authority of Heikkila v. Barber, 1953, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, which held that habeas corpus was the only available remedy for testing deportation orders under the Immigration Act of 1917. After the passage of the 1952 Act, Shung filed this suit seeking review of his exclusion by a declaratory judgment action. He asserts that our ruling in Pedreiro permitting deportation orders under the 1952 Act to be challenged by declaratory action requires a similar result as to exclusion orders. However, the Government contends that the Pedreiro rule does not apply in exclusion cases because of the basic differences between those actions and deportation cases. The Government also urges that the language, statutory structure, and legislative history of the 1952 Act support its contention.

I.

At the outset the Government contends that constitutionally an alien seeking initial admission into the United States is in a different position from that of a resident alien against whom deportation proceedings are instituted.1 This, it contends, precludes general judicial re-

Page 183

view. Shung admits these substantive differences but counters that such a distinction should be without significance when all that is involved is the form of judicial action available, not the scope of review. We do not believe that the constitutional status of the parties requires that the form of judicial action be strait-jacketed. Nor should the fact that in one action the burden is on the alien while in the other it must be met by the Government afford basis for discrimination. Admittedly, excluded aliens may test the order of their exclusion by habeas corpus. Citizenship claimants who hold 'certificates of identity' are required by § 360(c) of the 1952 Act2 to test the validity of their exclusion by habeas corpus only. Respondent here neither claims citizenship nor did he hold a certificate of identity, and § 360(c) has no bearing on this case. For a habeas corpus proceeding the alien must be detained or at the least be in technical custody, as the Government puts it. On the other hand, a declaratory judgment action requires no such basis and the odium of arrest and detention is not present. It does not follow that the absence of this condition would enlarge the permissible scope...

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112 practice notes
  • Surface coal mining hearings and appeals; special rules,
    • United States
    • Federal Register March 20, 2003
    • March 20, 2003
    ...the Supreme Court noted that it does not lightly presume exemptions from the APA. 512 U.S. at 271, citing Brownwell v. Tom We Shung, 352 U.S. 180, 185 (1956). And, although the LHWCA provides that the agency's hearings ``shall not be bound by common law or statutory rules of evidence, or by......
  • Cermeno-Cerna v. Farrell, Civ. No. 68-403-R.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 2, 1968
    ...United States v. Interstate Commerce Comm'n, 337 U.S. 426, 433-435, 69 S.Ct. 1410, 1414-1415, 93 L. Ed. 1451; Brownell v. We Shung, supra 352 U.S. 180, 77 S.Ct. 252 1 L. Ed.2d 225; Heikkila v. Barber, supra 345 U.S. 229, 73 S.Ct. 603, 87 L.Ed. 972. Rusk v. Cort, supra, 369 U.S. 367 at 379-3......
  • CCCO-Western Region v. Fellows, Civ. No. C-72-1580.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 31, 1972
    ...The court's references to Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), Brownell v. We Shung 352 U.S. 180, 185, 77 S.Ct. 252, 1 L.Ed. 225 (1956), and in a footnote, Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), point to a......
  • Jean v. Nelson, No. 82-5772
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 12, 1983
    ...cases in the mid-1950's, however, the Court indicated the Immigration Act of 1952 mandates a different result. Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). These cases held that in additi......
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111 cases
  • Cermeno-Cerna v. Farrell, Civ. No. 68-403-R.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 2, 1968
    ...United States v. Interstate Commerce Comm'n, 337 U.S. 426, 433-435, 69 S.Ct. 1410, 1414-1415, 93 L. Ed. 1451; Brownell v. We Shung, supra 352 U.S. 180, 77 S.Ct. 252 1 L. Ed.2d 225; Heikkila v. Barber, supra 345 U.S. 229, 73 S.Ct. 603, 87 L.Ed. 972. Rusk v. Cort, supra, 369 U.S. 367 at 379-3......
  • CCCO-Western Region v. Fellows, Civ. No. C-72-1580.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 31, 1972
    ...The court's references to Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), Brownell v. We Shung 352 U.S. 180, 185, 77 S.Ct. 252, 1 L.Ed. 225 (1956), and in a footnote, Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), point to a......
  • Jean v. Nelson, No. 82-5772
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 12, 1983
    ...cases in the mid-1950's, however, the Court indicated the Immigration Act of 1952 mandates a different result. Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). These cases held that in additi......
  • Harper v. Levi, Nos. 73-1766
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 24, 1975
    ...25 L.Ed.2d 192, 199-200 (1970); Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 185, 3 L.Ed.2d 210, 215 (1958); Brownell v. Tom We Shung, 352 U.S. 180, 185, 77 S.Ct. 252, 256, 1 L.Ed.2d 225, 229 114 Abbott Laboratories v. Gardner, supra note 113, 387 U.S. at 141, 87 S.Ct. at 1511, 18 L.Ed.......
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