Grath v. Kristensen

• Decision Date: 11 December 1950
• Docket Number: No. 34,34
• Citation: 340 U.S. 162,71 S.Ct. 224,95 L.Ed. 173
• Parties: McGRATH, Attorney General, et al. v. KRISTENSEN
• Court: U.S. Supreme Court

340 U.S. 162

71 S.Ct. 224

95 L.Ed. 173

McGRATH, Attorney General, et al.

v KRISTENSEN.

No. 34.

Argued Oct. 19, 20, 1950.

Decided Dec. 11, 1950.

Mr. Robert W. Ginnane, Washington, D.C., for petitioners.

Mr. David W. Louisell, Washington, D.C., for respondent.

Mr. Justice REED delivered the opinion of the Court.

Review was granted by this Court to determine whether the Attorney General was justified in refusing to suspend deportation of an alien under § 19(c), as amended, 62 Stat. 1206, of the Immigration Act of 1917,¹ 39 Stat. 874 889, 8 U.S.C. §§ 101, 155(c), 8 U.S.C.A. §§ 101, 155(c) on the sole ground that the alien was ineligible for naturalization. The alien's eligibility for naturalization, the substantive question in this case, depends upon whether the alien was 'residing' in the United States and therefore liable for military service under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., when he made application to be relieved from the liability. Section 3(a) of that Act as amended, the applicable section, provides that 'any person who makes such application shall thereafter be debarred from becoming a citizen of the United States'.²

The grant of certiorari also covered a procedural question: whether the Attorney General's refusal on the ground stated to grant suspension of deportation was subject to judicial review otherwise than by habeas corpus.

The allegations of the alien's complaint have not been controverted. Kristensen, a Danish citizen, entered the United States on August 17, 1939, as a temporary visitor for sixty days, to attend the New York World's Fair and visit relatives. The outbreak of World War II prevented his return to Denmark. Successive extensions of stay were applied for and granted, but eventually economic necessity compelled Kristensen to become employed and thereby violate his visitor's status. The process of deportation on the ground of violation of his visitor's status was begun in May 1940, stayed for the duration of World War II, and reopened in 1946. A warrant of deportation was issued in 1941 but was withdrawn on June 10, 1946, to permit the alien to submit an application for suspension of deportation under § 19(c) of the Immigration Act, supra, which allows such suspension when deportation would result in serious economic detriment to the United States citizen wife of an alien. This relief was refused on the sole ground of Kristensen's asserted ineligibility for citizenship resulting from his having filed with his Selective Service Board on March 30, 1942, after registration, an application for relief from service under § 3(a) of the Selective Training and Service Act, supra. Eligibility is a statutory prerequisite to the Attorney General's exercise of his discretion to suspend deportation in this case.³

Respondent, not then nor thereafter in custody, sought a declaratory judgment that the Attorney General and other immigration and naturalization officials must, in passing upon his application for suspension of deportation, decide on the basis that he is eligible for naturalization in the United States.⁴ He also sought to enjoin the Attorney General and other officials from exercising their authority under § 19(c) of the Immigration Act on the assumption of respondent's ineligibility.

The District Court dismissed the complaint without opinion, apparently for failure to state a ground for relief. The United States Court of Appeals for the District of Columbia reversed on the ground that, under the facts alleged, Kristensen could not have been subject to the Selective Training and Service Act of 1940 at the time he made his claim for exemption, and therefore the claim was without effect and did not render him ineligible for naturalization. 86 U.S.App.D.C. 48, 179 F.2d 796. The Court of Appeals ruled that the Selective Training and Service Act of 1940, as amended, applied only to aliens 'residing in the United States' and 'absent any showing of acts of declarations indicating an intention to remain at the time the form was filed, the immigration authorities erroneously construed 'residing in the United States' when they held it applicable to an alien in this country under a temporary visitor's visa whose deportation had been ordered and then stayed because of war.'⁵

We granted certiorari because of the importance of the question in the administration of the immigration and naturalization laws. The principle of the decision below is in conflict with that applied in Benzian v. Godwin, 2 Cir., 168 F.2d 952. An important procedural question also exists in view of the Government's insistence that habeas corpus is the only available judicial remedy for aliens in deportation proceedings. Before we consider these questions, however, we turn to a jurisdiction problem.

Federal Jurisdiction.—The Government properly presents for our consideration an issue of federal jurisdiction not heretofore raised. The quaere is whether this proceeding involves a justiciable question under Article III of the Constitution.⁶ It is said the Attorney General's suspension of deportation is merely a recommendation to Congress, and that federal courts cannot intervene because at this point a court order does not finally control the deportation of the alien.⁷ This argument is founded on § 19(c) of the Immigration Act which provides that, if deportation is suspended longer than six months, a detailed report must be made to Congress, and, if Congress fails to approve the suspension before the termination of the session next following the session in which the case is reported, the Attorney General must thereupon proceed with the deportation.⁸

While such a jurisdictional point may be raised at any time,⁹ we do not think there is basis for the objection here. The statute gives the Attorney General the power to suspend deportation for a minimum of six months and until Congress acts or the time for action elapses. The Attorney General's power is final for such deferment of deportation. That other forces may come into play later with authority to take other steps does not detract from that finality. The United States relies particularly on Chicago & Southern Air Lines v. Waterman, S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568. The congressional power here is quite distinct from the Presidential power concerning overseas licensing in the Chicago & Southern case. The license in question there was ineffective until the President acted. The delay here is effective despite subsequent congressional action. This litigation, whatever its ultimate effect, is aimed only at the delay. The judgment sought in this proceeding would be binding and conclusive on the parties if entered and the question is justiciable.

Declaratory Judgment.—The United States does not challenge finality for purpose of review.¹⁰ However, the Government does contend that the Immigration Act provision, § 19(a), making the Attorney General's decision on deportation 'final' precludes judicial review except by habeas corpus of his refusal to grant suspension of deportation. The procedural question as thus narrowed is whether an administrative decision against a requested suspension of deportation under § 19(c) of the Immigration Act can be challenged by an alien free from custody through a declaratory judgment or whether, to secure redress, he must await the traditional remedy of habeas corpus after his arrest for deportation.

The Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a), authorized the deportation of any alien found in the United States in violation of the immigration laws, and always provided that administrative decision as to deportation 'shall be final.' The end of that administrative proceeding creates a situation which is subject to test on constitutional grounds through habeas corpus by one in custody.¹¹ We do not find it necessary to consider the applicability of § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C.A. § 1009, to this proceeding. Where an official's authority to act depends upon the status of the person affected, in this case eligibility for citizenship, that status, when in dispute, may be determined by a declaratory judgment proceeding after the exhaustion of administrative remedies. Under § 19(c) of the Immigration Act the exercise of the Attorney General's appropriate discretion in suspending deportation is prohibited in the case of aliens ineligible for citizenship. The alien is determined to have a proscribed status by this administrative ruling of ineligibility. Since the administrative determination is final, the alien can remove the bar to consideration of suspension only by a judicial determination of his eligibility for citizenship. This is an actual controversy between the alien and immigration officials over the legal right of the alien to be considered for suspension. As such a controversy over federal laws, it is within the jurisdiction of federal courts, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, and the terms of the Declaratory Judgment Act, 28 U.S.C. § 2201, 28 U.S.C.A. § 2201.

It was so held in Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, where a declaratory judgment action was brought against the Secretary of Labor, then the executive official in charge of deportation of aliens, the Secretary of State, and the Commissioner of Immigration, to settle citizenship status. The Department of Labor had notified Miss Elg, who was not in custody, that she was not a citizen and was illegally remaining in the United States, and the Department of State had refused her a passport 'solely on the ground that she had lost her native born American citizenship.' The District Court sustained a motion to dismiss the proceeding against the Secretary of State because his function as to passports was discretionary, but declared against the contention of the Secretary of Labor and held that Miss Elg had not...