Foti v. Immigration and Naturalization Service

• Decision Date: 21 September 1962
• Docket Number: No. 295,Docket 27345.,295
• Citation: 308 F.2d 779
• Parties: Francesco FOTI, a/k/a Frank Foti, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

308 F.2d 779 (1962)

Francesco FOTI, a/k/a Frank Foti, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 295, Docket 27345.

United States Court of Appeals Second Circuit.

Argued April 3, 1962.

Decided September 21, 1962.

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

Roy Babitt, Sp. Asst. U. S. Atty., S. D.N.Y., New York City (Robert M. Morgenthau, U. S. Atty., New York City, on the brief), for respondent.

Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

Foti is a resident alien who entered this country on a seaman's visa and stayed illegally for ten years, leaving his wife and three children in Italy. When deportation proceedings were instituted, he conceded his deportability, but applied to the Attorney General for relief under § 244(a) (5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1254(a) (5), which provides that "the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who * * * is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien * * *." The Attorney General, through his Special Inquiry Officer, ruled that Foti did not qualify as a case of "exceptional and extremely unusual hardship," and therefore that no ground to exercise the granted discretion arose, but permitted voluntary departure. The decision was upheld by the Board of Immigration Appeals, and Foti now seeks to have us review it under § 106 of the Act, 8 U.S.C.A. § 1105a, enacted Sept. 26, 1961, 75 Stat. 651, providing for review of final orders of deportation by courts of appeals by petition for review brought within six months.

Although the Immigration and Naturalization Service joins the petitioner in urging us to assume jurisdiction, in contrast to the position it has taken elsewhere, the matter is one that we must determine on our own account. The panel which heard the case upheld jurisdiction by a 2-1 vote, Judges Clark and Hincks forming the majority and the writer dissenting. Because of the important consequences of a decision that the recent Congressional grant to the courts of appeals of exclusive jurisdiction to review "final orders of deportation" was not in fact limited to such orders, as the language of the statute would indicate, but extended also to the variety of discretionary orders withholding or suspending deportation which the Attorney General is authorized to make, this case and the companion case of Ng Yen, 308 F.2d 796, were deemed appropriate for in banc consideration. This has resulted in a determination, four judges dissenting, that we have no jurisdiction, the majority believing that although decision either way has its difficulties, there is no sufficient reason for expanding the words used by Congress beyond their well-understood meaning.

The text we must construe is § 106, added to the Immigration and Nationality Act of 1952 in 1961, 75 Stat. 651, 8 U.S.C.A. § 1105a. This directs, § 106 (a), that "The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.)," providing for review in the courts of appeals of certain orders of the Federal Communications Commission, the Secretary of Agriculture, the Federal Maritime Board (and its predecessors), and the Atomic Energy Commission, "shall 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 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252, sets up a comprehensive procedure to determine the deportability of an alien. Section 242(b), into which the new statute is expressly keyed, directs that "A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien," states in great detail how this shall be done, and lays down that "The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section." This specification of procedural safeguards is immediately followed by § 242(c), providing that "When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States * * *"; during that period the alien may be detained. Section 242(d) adds that "Any alien, against whom a final order of deportation as defined in subsection (c) of this section, heretofore or hereafter issued has been outstanding for more than six months, shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General", and § 242(e) imposes a criminal penalty upon "Any alien against whom a final order of deportation is outstanding by reason of being a member of any of the classes" described in certain paragraphs of § 241(a) who wilfully fails or refuses to depart "within a period of six months from the date of the final order of deportation under administrative processes, or, if judicial review is had, then from the date of the final order of the court * * *" When Congress, in 1961, gave the courts of appeals jurisdiction to review "final orders of deportation * * * 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," it was thus using a term of art which had been used repeatedly in § 242 and possessed a well-understood meaning. We have already decided at least two such cases, Dentico v. I. N. S., 303 F.2d 137 (2 Cir. 1962), and Schoeler v. I. N. S., 306 F.2d 460 (2 Cir. 1962), where a "final order of deportation" was challenged, see also fn. 3 to Judge Clark's dissenting opinion.

Under the "prior Acts," 39 Stat. 889-890 (1917) and 43 Stat. 162 (1924), deportation, once determined, was generally mandatory. However, Congress has supplemented the deportation provisions contained in such acts and in § 242 of the 1952 Act, by other provisions giving the Attorney General a wide gamut of discretionary withholding and dispensing powers. Section 243(h), 8 U.S. C.A. § 1253(h), authorizes him "to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason." Section 244(a), 8 U.S.C.A. § 1254(a), provides that he "may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence" in five different categories of cases.¹ Sections 244(b) and (c), 8 U.S. C.A. § 1254(b) and (c), direct that when the Attorney General has so suspended deportation, he is to report to Congress. In certain instances the Attorney General is to cancel deportation proceedings unless a house of Congress votes to the contrary; in others he is to deport unless Congress passes a concurrent resolution favoring suspension or if either house passes a resolution not favoring suspension. Finally § 244(e), 8 U.S.C. A. § 1254(e), authorizes the Attorney General "in his discretion" to "permit any alien under deportation proceedings," with certain exceptions, "to depart voluntarily from the United States * * * if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure * * *." A further dispensing power, subject to Congressional concurrence, is conferred by § 6 of the Refugee Relief Act of 1953, as amended, 50 U.S.C.A.Appendix, § 1971d.

The contrast between these sections giving the Attorney General discretion to withhold or suspend the deportation of an alien found to be deportable, and § 242, relating to the determination of deportability, is marked. "The procedure outlined for a determination by the Attorney General or his delegate whether the alien, though subject to deportation shall have the order of deportation withheld, is a different matter," Milutin v. Bouchard, 299 F.2d 50, 51 (3 Cir. 1962), cert. granted and judgment vacated on consent of Solicitor General, 370 U.S. 292, 82 S.Ct. 1562, 8 L.Ed.2d 501 (1962). In fact, the withholding and suspending sections outline no procedure, let alone requiring use of the procedure prescribed by § 242(b), to which the 1961 judicial review amendment is keyed. Whereas a determination of deportability must rest on findings of fact sufficient to bring the alien under a specific provision of law, suspension "is in all cases a matter of grace," resting in the "unfettered discretion of the Attorney General", Jay v. Boyd, 351 U.S. 345, 354, 357-358, 76 S.Ct. 919, 924, 926, 927, 100 L.Ed. 1242 (1956). Nowhere do the withholding or suspension sections use the phrase of the 1961 Act, "final order of deportation" to characterize orders made thereunder, although § 244 does use it in explicit reference to deportation orders made under § 242(b); these sections speak instead of withholding, suspending, or cancelling deportation when the Attorney General exercises his discretion in favor of the alien, and of ultimately deporting the alien when he does not. When the Attorney General refuses to withhold or suspend deportation under these sections, he no more "affirms" the order of deportation than a parole board "affirms"...