Chung Young Chew v. Boyd

• Decision Date: 20 December 1962
• Docket Number: No. 17791.,17791.
• Citation: 309 F.2d 857
• Parties: CHUNG YOUNG CHEW, Petitioner, v. John P. BOYD, District Director of Immigration and Naturalization Service, United States Department of Justice, Seattle District, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.2d 857 (1962)

CHUNG YOUNG CHEW, Petitioner, v. John P. BOYD, District Director of Immigration and Naturalization Service, United States Department of Justice, Seattle District, Respondent.

No. 17791.

United States Court of Appeals Ninth Circuit.

October 30, 1962.

As Modified on Rehearing December 20, 1962.

COPYRIGHT MATERIAL OMITTED

Chan, Bonnell, Uhlman & Callies, and Warren Chan, Seattle, Wash., for petitioner.

Brockman Adams, U. S. Atty., and Philip H. DeTurk, Asst. U. S. Atty., Seattle, Wash., for respondent.

Before ORR, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

Petitioner commenced a declaratory judgment action in the United States District Court to set aside and enjoin enforcement of deportation orders entered on December 7, 1959 and August 10, 1960. After an answer was filed and certain pretrial proceedings were had the cause was transferred to this court for review of the administrative orders, pursuant to section 5, Pub.L. 87-301, 75 Stat. 651-653; 8 U.S.C. § 1105a, and 5 U.S.C. §§ 1031-1042.

Chung Young Chew is a seventy-five year old Chinese man. On June 29, 1954, while petitioner was incarcerated at the United States penitentiary at McNeil Island, Washington, a warrant for his arrest was issued by the Immigration and Naturalization Service (Service). It was therein alleged that one Chew (Jew), Chung Young, an alien who had last entered this country at San Francisco, California on July 28, 1926, was subject to being deported pursuant to section 241 (a) (11) of the Immigration and Nationality Act of 1952 (Act), 8 U.S.C. § 1251 (a) (11).¹ It was also provided in this warrant that a named immigration officer should take petitioner into custody "and grant him a hearing to enable him to show cause why he should not be deported in conformity with law."

A deportation hearing was had at the penitentiary on September 15, 1954 before George S. Dailey, a special inquiry officer. At this hearing petitioner was not represented by counsel, nor was he provided with the services of an interpreter. On the following day the special inquiry officer entered an order for petitioner's deportation.

Nearly four years later, on August 13, 1959, while petitioner was still incarcerated in the penitentiary, he received notice that upon his release on August 31, 1959, he would be deported to the Island of Formosa. Petitioner then retained counsel who requested that the proceedings at the hearing of September 16, 1954 be transcribed. The transcript of these proceedings was promptly made and immediately studied by the district examining officer.

On August 20, 1959 that officer moved that the hearing be reopened. His reasons for making this motion were that the record indicated that at the time of the hearing petitioner was not informed of his right to counsel, nor was he questioned as to his ability to understand the English language. The motion was that day acted upon ex parte, and granted by the special inquiry officer. No notice of the pendency of this motion had been served upon petitioner.

On August 31, 1959 petitioner was released from the penitentiary and was immediately taken into physical custody under the authority of the 1954 warrant by an employee of the Service. Further deportation hearings were held before special hearing officer John W. Keane on September 1 and 16, and November 2, 1959. At these hearings petitioner was represented by counsel and an interpreter was utilized. On December 7, 1959 special inquiry officer Keane entered an order for the deportation of petitioner.

Petitioner appealed to the Board of Immigration Appeals of the United States Department of Justice (Board). The Board, on June 14, 1960 ordered withdrawal of the orders of deportation theretofore entered, and directed that the hearing be reopened. The purpose of the reopening was to provide the Service an opportunity to introduce in evidence a record of petitioner's conviction referred to in the warrant of arrest, and to afford petitioner an opportunity to examine the evidence against him, present his defense, and cross-examine witnesses presented by the Government.

The further hearing was held on July 26, 1960 before special inquiry officer Keane. On August 10, 1960 that officer entered an order adopting the decision and order of the special inquiry officer dated December 7, 1959. On appeal the Board, on February 28, 1961, noting that the special inquiry officer (in his order of August 10, 1960), had "adopted" the decision and order of December 7, 1959, affirmed "the order of deportation." A warrant for petitioner's deportation was issued on March 14, 1961. Three days later petitioner commenced this court proceeding.

Petitioner first contends that no final order of deportation has been made. He points out that in its order of June 14, 1960, the Board ordered withdrawal of the deportation orders of September 16, 1954 and December 7, 1959, so that if there is any final order of deportation it must be that of August 10, 1960. Petitioner also calls attention to the fact that the order of August 10, 1960 is not supported by findings of fact and conclusions of law as to deportability, nor does it expressly order petitioner's deportation. Instead, it is recited in the later order, that "* * * on the basis of the entire record, the decision and order of the Special Inquiry Officer dated December 7, 1959, is adopted."²

Petitioner argues that with regard to deportation orders, there is nothing in the statutes or regulations which permits a special inquiry officer to avoid his duty of making findings of fact and conclusions of law as to deportability, and of expressly ordering deportation,³ through the technique of "adopting" a prior decision and order which had already been withdrawn.⁴

Petitioner appealed to the Board from the order of August 10, 1960, but on that appeal he did not raise the question discussed above. It is provided in 8 U.S.C. § 1105a(c) that an order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations. Under 8 C.F.R., § 242.21(b) petitioner was entitled to appeal to the Board from the order of August 10, 1960. See Mai Kai Fong v. Immigration and Naturalization Service, cited in note 4.

Failure to take an available appeal to the Board from an order of deportation constitutes a failure to exhaust administrative remedies, thereby depriving a court of appeals of jurisdiction to review any aspect of such order.⁵ It follows that failure to raise, on such an appeal, a particular question concerning the validity of the order constitutes a failure to exhaust administrative remedies with regard to that question, thereby depriving a court of appeals of jurisdiction to consider that question.

For the reasons stated, we do not have jurisdiction to consider the question discussed above concerning the sufficiency or form of the order of August 10, 1960.

Petitioner next contends that the reopened hearings may not be the basis for an order of deportation because they were not legally initiated. He advances four theories in support of this position. The first theory is that the proceedings under the 1954 warrant were completed upon entry of the deportation order of September 16, 1954. Petitioner argues that the Service could not thereafter restore validity to that warrant by withdrawing the order of deportation and ordering the proceedings reopened. What was required in order to lawfully initiate further proceedings, petitioner argues, was the issuance by the Service of an order to show cause.⁶

In 1954 all deportation proceedings were commenced with the arrest of the respondent.⁷ Under that procedure the warrant of arrest served three functions. It authorized an immigration officer to take the named person into custody; it informed such person of the asserted ground of deportation; and it directed the immigration officer to grant the named person a hearing to enable him to show cause why he should not be deported. The person arrested was ordinarily released on nominal bail during the pendency of his case.⁸ This indicates that retention of custody was not essential to jurisdiction over the alien for purposes of the deportation proceeding.

For the reasons indicated at a later point in this opinion we do not believe that failure to obtain a new warrant in 1959 rendered illegal the Service's custody of petitioner after his release from the penitentiary.⁹ But whatever efficacy the 1954 warrant had with respect to physical custody in 1959, we believe it still had vitality insofar as jurisdiction to conduct further hearings in the original deportation proceedings, and to issue orders of deportation therein, are concerned.

The Board order of June 14, 1960, withdrawing the deportation orders of September 16, 1954 and December 7, 1959, did not have the effect of dismissing that proceeding. On the contrary, the further provision of the June 14, 1960 order, that the hearing be reopened, makes it clear that the original deportation proceeding was regarded as still pending. Nor has there been any other order or circumstance which had the effect of terminating the proceeding instituted in 1954.¹⁰

Since the proceeding instituted in 1954 is still pending and is the one in which the challenged deportation orders of December 7, 1959 and August 10, 1960 were entered, there was no necessity for issuance of a show cause order for the purpose of reëstablishing agency jurisdiction.

Petitioner's second theory is that the reopened hearings were not legally initiated because neither the 1954 warrant nor evidence that it was served upon him was admitted in evidence in any hearing at which he was accorded due process.

The warrant was admitted as Exhibit 1 in the 1954 proceeding, and testimony was then received that it had been served upon petitioner. The warrant was not re-admitted at...