Heikkila v. Barber

Decision Date16 March 1953
Docket NumberNo. 426,426
Citation345 U.S. 229,97 L.Ed. 972,73 S.Ct. 603
PartiesHEIKKILA v. BARBER et al
CourtU.S. Supreme Court

See 345 U.S. 946, 73 S.Ct. 828.

Messrs. Joseph Forer, Washington, D.C., Lloyd E. McMurray, San Francisco, Cal., for appellant.

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

Mr. Justice CLARK delivered the opinion of the Court.

Heikkila is an alien whose deportation has been ordered by the Attorney General. He began this action against the District Director of the Immigration and Naturalization Service by a complaint seeking a 'review of agency action' as well as injunctive and declaratory relief. His main substantive claim is that § 22 of the Internal Security Act of 1950, 64 Stat. 1006, upon which the order was based, and which makes Communist Party membership per se ground for deportation, is unconstitutional. A three-judge District Court convened under 28 U.S.C. §§ 2282, 2284, 28 U.S.C.A. §§ 2282, 2284, dismissed the complaint without opinion. Together with the constitutional question, this appeal presents two important procedural questions: whether the validity of deportation orders may be tested by some procedure other than habeas corpus and, if so, whether the Commissioner of Immigration and Naturalization is an indispensable party to the action.

It is clear that prior to the Administrative Procedure Act habeas corpus was the only remedy by which deportation orders could be challenged in the courts. 1 The courts have consistently rejected attempts to use injunctions, declaratory judgments and other types of relief for this purpose.2 Accordingly, in asserting the availability of judicial review of the type sought here, appellant relies primarily on § 10 of the Administrative Procedure Act,3 conceding that the question has not yet been decided by this Court. The Government contends that because s 19(a) of the Immigration Act of 19174 makes the decision of the Attorney General 'final' the underlying statute precludes judicial review and comes within the first exception to § 10.

Apart from the words quoted, the Administrative Procedure Act itself is silent on which 'statutes preclude judicial review'. Both the Senate and the House Committee Reports on the Act commented that 'Very rarely do statutes withhold judicial review.'5 And the House Report added that 'To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.'6 The spirit of these statements together with the broadly remedial purposes of the Act counsel a judicial attitude of hospitality towards the claim that § 10 greatly expanded the availability of judicial review. However such generalities are not dispositive of the issue here, else a balance would have to be struck between those in the Committee reports and material in the debates which indicates inconsistent legislative understandings as to how exten- sively § 10 changed the prior law on judicial review.7 No easy answer is found in our decisions on the subject. Each statute in question must be examined individually; its purpose and history as well as its text are to be considered in deciding whether the courts were intended to provide relief for those aggrieved by administrative action. Mere failure to provide for judicial intervention is not conclusive; neither is the presence of language which appears to bar it.8

That the Attorney General's decisions are 'final' does not settle the question. The appellant properly emphasizes the ambiguity in that term. Read alone, it might refer to the doctrine requiring exhaustion of administrative remedies before judicial process cn be invoked. But 'final,' as used in immigration legislation, has a history, both in the statutes and in the decisions of this Court. It begins with § 8 of the Immigration Act of 1891, 26 Stat. 1084, which provided in part that 'All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.' The appellant in Nisbimura Ekiu v. United States, 1892, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146, argued that if § 8 was interpreted as making the administrative exclusion decision conclusive, she was deprived of a constitutional right to have the courts on habeas corpus determine the legality of her detention and, incidental thereto, examine the facts on which it was based. Relying on the peculiarly political nature of the legislative power over aliens, the Court was clear on the power of Congress to entrust the final determination of the facts in such cases to executive officers. Cf. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. Mr. Justice Gray found that § 8 was 'manifestly intended to prevent the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise, save only by appeal to the inspector's official superiors, and in accordance with the provisions of the act.' 142 U.S. at page 664, 12 S.Ct. at page 340. With changes unimportant here, this finality provision was carried forward in later immigration legislation. See, e.g., § 25 of the 1903 Act, 32 Stat. 1220, and § 25 of the 1907 Act, 34 Stat. 906. During these years, the cases continued to recognize that Congress had intended to make these administrative decisions nonreviewable to the fullest extent possible under the Constitution. Fong Yue Ting v. United States, 1893, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905. In Lem Moon Sing v. United States, 1895, 158 U.S. 538, 15 S.Ct. 967, 39 L.Ed. 1082, treating a comparable provision for the enforcement of the Chinese Exclusion Act, Mr. Justice Harlan observed that when Congress made the administrative decision final, 'the authority of the courts to review the decision of the executive officers was taken away.' 158 U.S. at page 549, 15 S.Ct. at page 971. And by 1901, Chief Justice Fuller was able to describe as 'for many years the recognized and declared policy of the country' the congressional decision to place 'the final determination of the right of admission is executive officers, without judicial intervention'. Fok Young Yo v. United States, 1902, 185 U.S. 296, 305, 22 S.Ct. 686, 690, 46 L.Ed. 917. See also the Japanese Immigrant case (Yamataya v. Fisher), 1903, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Pearson v. Williams, 1906, 202 U.S. 281, 26 S.Ct. 608, 50 L.Ed. 1029; Zakonaite v. Wolf, 1912, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218.

Read against this background of a quarter of a century of consistent judicial interpretation, § 19 of the 1917 Immigration Act, 39 Stat. 890 clearly had the effect of pre- cluding judicial intervention in deportation cases except insofar as it was required by the Constitution.9 And the decisions have continued to regard this point as settled. Kessler v. Strecker, 1939, 307 U.S. 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082; Bridges v. Wixon, 1945, 326 U.S. 135, 149, 166, 167, 65 S.Ct. 1443, 1450, 1457, 1458, 89 L.Ed. 2103; Estep v. United States, 1946, 327 U.S. 114, 122, 123, note 14, 66 S.Ct. 423, 427, 90 L.Ed. 567; Sunal v. Large, 1947, 332 U.S. 174, 177, note 3, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982. Clearer evidence that for present purposes the Immigration Act of 1917 is a statute precluding judicial review would be hard to imagine. Whatever view be taken as to the breadth of § 10 of the Administrative Procedure Act, the first exception to that section applies to the case before us. The result is tht appellant's rights were not enlarged by that Act. Now, as before, he may attack a deportation order only by habeas corpus.10

The three Court of Appeals decisions to the contrary have taken the position that habeas corpus itself represented judicial review, albeit of a limited nature. United States ex rel. Trinler v. Carusi, 3 Cir., 166 F.2d 457; Kristensen v. McGrath, 86 U.S.App.D.C. 48, 179 F.2d 796; Prince v. Commissioner, 6 Cir., 185 F.2d 578. Under this approach, the finality of an administrative decision must be absolute before the first exception to § 10 can apply. Our difficulty with this position begins with the nature of the writ and ends with the language of § 10. Regardless of whether or not the scope of inquiry on habeas corpus has been expanded,11 the function of the courts has always been limited to the enforcement of due process requirements. To review those requirements under the Constitution, whatever the intermediate formulation of their constituents, is very different from applying a statutory standard of review, e.g., deciding on 'the whole record' whether there is substantial evidence to support administrative findings of fact under § 10(e). Yet, for all that appears, § 10(e) might be called into play as well as § 10(b) if habeas corpus were regarded as judicial review.12 In short, it is the scope of inquiry on habeas corpus that differentiates use of the writ from judicial review as that term is used in the Administrative Procedure Act. We hold that deportation orders remain immune to direct attack.

Heikkila suggests that Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320 (declaratory and injunctive relief), and McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (declaratory relief), were deviations from this rule. But neither of those cases involved an outstanding deportation order. Both Elg and Kristensen litigated erroneous determinations of their status, in one case citizenship, in the other eligibility for citizenship. Elg's right to a judicial...

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