Foti v. Immigration and Naturalization Service

Decision Date16 December 1963
Docket NumberNo. 28,28
Citation11 L.Ed.2d 281,84 S.Ct. 306,375 U.S. 217
PartiesFrancesco FOTI, also known as Frank Foti, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE
CourtU.S. Supreme Court

James J. Cally, New York City, for petitioner.

Philip R. Monahan, Washington, D.C., for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

Involved in this case is the single question of whether the Federal Courts of Appeals have the initial, exclusive jurisdiction, under § 106(a) of the Immigration and Nationality Act, to review discretionary determinations of the Attorney General, relating to the suspension of deportation, under § 244(a)(5) of the Act.

Petitioner, a 47-year-old alien and a native and citizen of Italy, last entered the United States in late 1950 through the port of Norfolk, Virginia, on a seaman's visa which authorized him to remain in this country for a period not to exceed 29 days. He remained here illegally for more than 10 years, leaving his wife and three minor children in Italy. In 1961, deportation proceedings were instituted against petitioner, directing him to appear before a special inquiry officer of the Immigration and Naturalization Service and show cause why he should not be deported under § 241(a)(2) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251(a)(2), as an alien who had unlawfully overstayed the period for which he had been admitted. At a hearing conducted before a special inquiry officer under § 242(b) of the Act, petitioner conceded his deportability, and applied, in the alternative, for two forms of discretionary relief which the Attorney General is authorized by the Act to grant to deportable persons who meet defined eligibility requirements. He sought, pursuant to § 244(a)(5) of the Act, a suspension of deportation on the ground that it would be difficult for him to earn a living for his family in Italy if he were deported and deportation would result in his having to liquidate the bakery business which he owned and operated in Brooklyn, New York. Alternatively, if suspension of deportation were refused, petitioner requested, pursuant to § 244(e) of the Act, the privilege of voluntary departure at his own expense in lieu of deportation. The special inquiry officer, although finding that petitioner met the good moral character and 10 years' continuous presence in the United States requirements of § 244(a)(5), denied his application for suspension of deportation, on the ground that petitioner was ineligible for that form of discretionary relief since his deportation would not result 'in exceptional and extremely unusual hardship * * *.' Petitioner's alternative request for the privilege of voluntary departure was granted, however.1 Petitioner appealed to the Board of Immigration Appeals from that part of the order of the special inquiry officer which denied his request for suspension of deportation. The Board, on November 28, 1961, dismissed the appeal. Petitioner was directed to effect his departure by December 18, 1961. Prior to that date, petitioner commenced an action in the Federal District Court for the Southern District of New York, seeking declaratory and injunctive relief from the administrative refusal to grant his request for suspension of deportation. The District Court dismissed the action on the ground that, under the recently enacted § 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a),2 the sole and exclusive procedure for obtaining judicial review of such a determination was by a petition for review filed in an appropriate Federal Court of Appeals. Accordingly, petitioner then sought review in the Court of Appeals for the Second Circuit. On September 21, 1962, the Court of Appeals, sitting en banc and by a five-to-four vote, dismissed the petition for lack of jurisdiction, holding that the term 'final orders of deportation' in § 106(a) does not include a denial of discretionary relief under § 244(a)(5). 2 Cir., 308 F.2d 779. Because of a conflict among the Courts of Appeals regarding the interpretation of this jurisdictional language in s 106(a),3 we granted certiorari, limited to the question whether Courts of Appeals have jurisdiction to review final administrative orders with respect to discretionary relief sought during deportation proceedings. 371 U.S. 947, 83 S.Ct. 503, 9 L.Ed.2d 496.

The issue involved here is solely one relating to procedures incident to deportation proceedings. In the present posture of the case, we need not be concerned with the ultimate merits as to petitioner's deportability,4 since he concedes that he is deportable and the question of the propriety of the administrative refusal of suspension of deportation has not as yet been reviewed in any lower federal court. The only question presented for decision involves the scope of judicial review by the Courts of Appeals of administrative determinations made during the course of deportation proceedings. Specifically, we must decide a rather narrow question of statutory construction—whether a refusal by the Attorney General to grant a suspension of deportation is one of those 'final orders of deportation' of which direct review by Courts of Appeals is authorized under § 106(a) of the Act. Both parties have contended that it is. While the question is not free of difficulty, as evidenced by the division in the court below and the conflict among the various Courts of Appeals on the matter, we have concluded that the court below erred in holding that it was not.

The statutory provision in question, § 106(a) of the Immigration and Nationality Act, provides that the procedure for judicial review by the Courts of Appeals of certain orders5 of the Federal Communications Commission, Secretary of Agriculture, Federal Maritime Board and Atomic Energy Commission shall also 'apply to, and 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 242(b) of this Act or comparable provisions of any prior Act * * *.' Section 242 provides a detailed administrative procedure for determining whether an alien should be deported. Sections 243 and 244 relate to certain situations in which the Attorney General may suspend deportation in his discretion. In its decision below, the Court of Appeals for the Second Circuit held that § 106(a) applies only to orders required by statute to be made in a § 242(b) hearing, i.e., findings of de- portability.

Both petitioner and the Government have urged that the decision below should be reversed, and that the statutory language should be so construed as to include both an adjudication of deportability and an order denying suspension of deportation. Based on the historical background of the Immigration and Nationality Act,6 the manifest purpose of Congress in enacting § 106(a), the context of the statutory language when viewed against the prevailing administrative practices and procedures, and pertinent legislative history of § 106(a), we are led to the conclusion that the interpretation argued for by petitioner and the Government is the correct one.

Prior to 1940, the Attorney General had no discretion with respect to the deportation of an alien who came within the defined category of deportable persons. The expulsion of such a person was mandatory; his only avenue of relief in a hardship case was by a private bill in Congress. Therefore, any differentiation that might have been made prior to 1940 between a determination that an alien was deportable and the order directing his deportation would have been merely formalistic and essentially meaningless. In fact, the determination of deportability necessarily resulted in, and was invariably accompanied by, a deportation order. Since 1940, however, when the Attorney General was given the power to grant discretionary relief under various circumstances in deportation cases,7 administrative regulations having the force and effect of law have provided for the practice of determining deportability and ruling on an application for suspension of deportation in a single proceeding conducted by the Immigration and Naturalization Service. Thus, the administrative discretion to grant a suspension of deportation has historically been consistently exercised as an integral part of the proceedings which have led to the issuance of a final deportation order, and discretionary relief, if sought, must be requested prior to or during the deportation hearing. The hearings on deportability and on an application for discretionary relief have, as a matter of traditional uniform practice, been held in one proceeding before the same special inquiry officer, resulting in one final order of deportation. Significantly, when suspension is granted, no deportation order is rendered at all, even if the alien is in fact found to be deportable.

It must be concluded that Congress knew of this familiar administrative practice and had it in mind when it enacted § 106(a). These usages and procedures, which were actually followed when the provision was enacted, must reasonably be regarded as composing the context of the legislation. A colloquy between Congressmen Walter, Lindsay and Moore, all knowledgeable in deportation matters,8 is definitely corroborative of this view. This colloquy occurred during the House debates on the predecessor to the bill which was enacted in 1961 and contained § 106(a).9 Representative Lindsay suggested that the legislative history should make absolutely clear 'that if there is any remedy on the administrative level left of any nature, that the deportation order will not be considered final.' Representative Walter agreed, and stated that 'the final order means the final administrative order.' With Representative Moore concurring, all three congressmen agreed that there would be no 'final order of...

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