Chadha v. Immigration and Naturalization Service, 77-1702

Citation634 F.2d 408
Decision Date25 March 1981
Docket NumberNo. 77-1702,77-1702
PartiesJagdish Rai CHADHA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Carter and Kennedy, Circuit Judges, April 10, 1978.

Submission ordered withheld, April 14, 1978.

Reassigned to a panel consisting of Ely, Kennedy and Hug,

Circuit Judges, Aug. 13, 1980.

Resubmitted and Decided Dec. 22, 1980.

Rehearing and Rehearing En Banc Denied March 25, 1981.

Alan B. Morrison, Larry P. Ellsworth, Washington, D. C., John M. Pohlman, San Francisco, Cal., for petitioner.

John M. Harmon, Dept. of Justice, Washington, D. C., argued, for respondent; Henry C. Petersen, Washington, D. C., on brief.

Eugene Gressman, Washington, D. C., amicus curiae, for U. S. House of Representatives.

Cornelius B. Kennedy, Washington, D. C., amicus curiae, for U. S. Senate.

Petition for Review of an Order of the Immigration and Naturalization service.

Before ELY, KENNEDY and HUG, Circuit Judges.

KENNEDY, Circuit Judge:

Petitioner, Jagdish Rai Chadha, seeks review of an order of deportation issued by the Immigration and Naturalization Service (INS). The Executive branch of the Government, acting by an inquiry officer who conducted an administrative hearing on the record, determined that Chadha, though otherwise deportable, should remain in the United States to avoid extreme hardship. Subsequently the Congress, acting only by the House of Representatives, sought to reverse that determination. If given effect, the congressional action would require Chadha's deportation. We hold that the statutory mechanism by which the Congress acted to reverse the administrative determination is unconstitutional, and therefore that the deportation order is invalid.

Chadha, a native of Kenya and a holder of a British passport, lawfully entered the United States as a nonimmigrant student in 1966. After he received his bachelor's and his master's degrees, his student visa expired in 1972. In 1974, the INS issued an order to show cause why Chadha should not be deported. A special inquiry officer then held a deportation hearing pursuant to Immigration and Nationality Act (INA) section 242(b), 8 U.S.C. § 1252(b) (1976). At the hearing, Chadha conceded his deportable status, but requested a suspension of deportation pursuant to INA section 244(a)(1), 8 U.S.C. § 1254(a) (1) (1976). The special inquiry officer granted Chadha's request, in part because he found that "it would be extremely difficult, if not impossible, for (Chadha) to return to Kenya or go to Great Britain by reason of his (East Indian) racial derivation."

At the close of the hearing, the officer found that Chadha met the requirements of section 244(a)(1): he had been in the United States for over seven years, was of good moral character and would suffer "extreme hardship" if deported. The officer then suspended deportation pending congressional action. The officer further ordered, however, that the proceedings would be reconvened should Congress take adverse action.

On December 16, 1975, the House of Representatives passed House Resolution 926 disapproving the suspension of Chadha's deportation. 121 Cong.Rec. 40,800 (1975). This disapproval had the effect of overriding the special inquiry officer's decision. INA § 244(c)(2), 8 U.S.C. § 1254(c)(2) (1976). Accordingly, Chadha's deportation proceedings were reconvened, and the INS special inquiry officer entered a final order of deportation. Chadha then unsuccessfully appealed to the Board of Immigration Appeals and now petitions this court pursuant to INA section 106(a), 8 U.S.C. § 1105a(a) (1976).

Chadha contends that the procedure for congressional disapproval provided by section 244(c)(2), 8 U.S.C. § 1254(c)(2) (1976), is unconstitutional. Although he raised this contention before both the special inquiry officer and the Board of Immigration Appeals, neither decided this question as both concluded they had no power to decide the constitutionality of statutes. On this petition for review, respondent Immigration and Naturalization Service agrees that section 244(c)(2) is unconstitutional. We therefore requested both the House of Representatives and the Senate to file briefs as amici curiae. See, e. g., Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9, 88 S.Ct. 1970, 1973 n.9, 20 L.Ed.2d 1037 (1968); Atkins v. United States, 556 F.2d 1028, 1058 (Ct.Cl.1977) (per curiam) (en banc), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). They have done so, and before we reach the merits, we must first answer various challenges to our jurisdiction and the justiciability of Chadha's case.

I. Procedural Questions
A. Jurisdiction

Amici initially contend that this court lacks jurisdiction. Their claim is based on Amici's first argument, that Chadha seeks review not of a decision made during "administrative proceedings" but of a legislative decision made outside of section 242(b), is without merit. Amici would have us read "final orders ... made ... pursuant to administrative proceedings under section 242(b)" to limit appellate review to only the actual decisions and conclusions made by the special inquiry officer during a section 242(b) hearing. We think that this construction of "final orders" is inconsistent with both congressional intent and a sensible interpretation of the statute. We conclude the phrase "final orders" includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing. Under amici's construction our review would be essentially empty, for we could review only the special inquiry officer's ministerial execution of a substantive decision that was made elsewhere.

INA section 106(a), 8 U.S.C. § 1105a(a) (1976), which states that a petition for review in the Court of Appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation ... made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act (8 U.S.C. § 1252(b))." Citing this language, amici make two assertions. First, although they concede Chadha is subject to a final order of deportation, they argue that Chadha, by conceding deportability, has not challenged any determination made during "administrative proceedings"; rather, his challenge is to the House of Representatives' decision to disapprove the suspension of deportation. Second, amici contend that since the Board of Immigration Appeals lacked the power to pass on the INA's constitutionality, it could not make any order pursuant to section 242(b) which could form the basis of a petition challenging the validity of the congressional procedure.

Our construction is consistent with well established precedent in this circuit. In Waziri v. INS, 392 F.2d 55 (9th Cir. 1968), for example, an alien challenged the validity of an INS rescission of his permanent resident status. While this decision rendered Waziri immediately deportable, id. at 56-57, it was not appealable under section 106. See Bachelier v. INS, 548 F.2d 1157, 1158 (5th Cir. 1977). After a section 242(b) hearing Waziri was ordered deported. On petition to this circuit, he attempted to challenged the validity of the INS rescission, but was met with the argument that the rescission was a determination made outside of a section 242(b) proceeding and thus was not reviewable under section 106. The court rejected this argument, stating that section 106 included the power to review "logical predicates" to deportation orders that are "integrally related" to and interdependent with the final order. 392 F.2d at 56-57. The INS rescission order belonged to this class: it rendered an alien immediately deportable, was not directly appealable, and reduced the section 242(b) proceeding to a mere execution of the consequences of being deportable. The court reasoned that if section 106 did not permit review, the possibility existed for numerous other challenges, by way of district court habeas corpus petitions, to the same deportation order. Id. at 57. This was found contrary to the congressional intent of consolidating review of deportation orders. Id. Further, since the "technical correctness" of the order could not be questioned, the court found that Congress would not have desired such a "routine" or "perfunctory" approval of deportation orders in the Court of Appeals. Id. In such cases then, the court found that the power of review under section 106 permitted review of the substantive matters underlying the final deportation order. See also Bachelier v. INS, 625 F.2d 902, 904 (9th Cir. 1980); Ferrante v. INS, 399 F.2d 98 (6th Cir. 1968).

Waziri 's rationale extends to Chadha's case. Like the status rescission involved in Waziri, the congressional disapproval of section 244(c)(2) is a substantive decision made outside of a section 242(b) proceeding but which nevertheless directly leads to a final order of deportation. In addition, if we find that section 106 precludes review, the distinct possibility exists that there will be Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), relied upon by amici, is not contrary. In that case, the Court held that a circuit court had no jurisdiction to review a denial of a stay of deportation, an order controlled not by section 242(b) but by administrative regulations. Further, the alien in Cheng Fan Kwok had filed for the discretionary relief after a final order of deportation had been entered, whereas Chadha's request here was made at his deportation hearing. Thus, Cheng was not appealing from a final order, but rather was appealing from an independent denial of discretionary relief. Following its prior case of Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), the Court then found that the Attorney General's denial of Cheng's application for discretionary relief,...

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