Leng May Ma v. Barber

Decision Date16 June 1958
Docket NumberNo. 105,105
Citation78 S.Ct. 1072,2 L.Ed.2d 1246,357 U.S. 185
PartiesLENG MAY MA, Petitioner, v. Bruce G. BARBER, District Director, Immigration and Naturalization Service, San Francisco District
CourtU.S. Supreme Court

Mr. Joseph S. Hertogs, San Francisco, Cal., for the petitioner.

Mr. Leonard B. Sand, Washington, D.C., for the respondent.

Mr. Justice CLARK delivered the opinion of the Court.

This is a habeas corpus case involving § 243(h) of the Immigration and Nationality Act, which authorizes the Attorney General '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 persec- tion. * * *'1 Claiming to be an alien 'within the United States' by reason of her parole in this country while her admissibility was being determined, petitioner contends that she is eligible to receive the benefactions of § 243(h). The Attorney General contends that the section is applicable only to aliens who, in contemplation of law, have entered the United States. He argues that petitioner has never enjoyed that status because she eventually was found ineligible for entry and ordered excluded. The District Court denied a writ of habeas corpus, and the Court of Appeals affirmed. 9 Cir., 241 F.2d 85. We granted certiorari. 1957, 353 U.S. 981, 77 S.Ct. 1283, 1 L.Ed.2d 1141. We conclude that petitioner's parole did not alter her status as an excluded alien or otherwise bring her 'within the United States' in the meaning of § 243(h).

Petitioner is a native of China who arrived in this country in May 1951 claiming United States citizenship on the ground that her father was a United States citizen. Pending determination of her claim, she at first was held in custody, but later, in August 1952, was released on parole. Some three months thereafter, having failed to establish her claim of citizenship, she was ordered excluded, and the Board of Immigration Appeals affirmed. She surrendered for deportation in January 1954, and thereafter applied for a stay of deportation under § 243(h) in which she alleged that her pending deportation to China would subject her to physical persecution and probable death at the hands of the existing government. Her petition for writ of habeas corpus followed administrative notification of her ineligibility for relief under that section. Petitioner does not challenge the validity of her exclusion order or the proceedings culminating therein. She merely contends that by virtue of her physical presence as a parolee she is 'within the United States,' and hence covered by § 243(h). The question, therefore, is wholly one of statutory construction.

It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely 'on the threshold of initial entry.' Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956. See Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576. The distinction was carefully preserved in Title II of the Immigration and Nationality Act. Chapter 42 subjects those seeking admission to 'exclusion proceedings' to determine whether they 'shall be allowed to enter or shall be excluded and deported.' 66 Stat. 200, 8 U.S.C. § 1226(a), 8 U.S.C.A. § 1226(a). On the other hand, Chapter 53 concerns itself with aliens who have already entered the United States and are subject to 'expulsion,' as distinguished from 'exclusion,' if they fall within certain 'general classes of deportable aliens.' 66 Stat. 204, 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. Proceedings for expulsion under Chapter 5 are commonly referred to as 'deportation proceedings.' Parenthetically, the word 'deportation' appears also in Chapter 4 to refer to the return of excluded aliens from the country, but its use there reflects none of the technical gloss accompanying its use as a word of art in Chapter 5.

For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States. Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 215, 73 S.Ct. 625, 630; United States v. Ju Toy, 1905, 198 U.S. 253, 263, 25 S.Ct. 644, 646, 49 L.Ed. 1040; Nishimura Ekiu v. United States, 1892, 142 U.S. 651, 661, 12 S.Ct. 336, 339, 35 L.Ed. 1146. It seems quite clear that an alien so confined would not be 'within the United States' for purposes of § 243(h). This, in fact, was conceded by respondents in the companion case, Rogers v. Quan, 357 U.S. 193 78 S.Ct. 1076. Our question is whether the granting of temporary parole somehow effects a change in the alien's legal status. In § 212(d)(5) of the Act, generally a codification of the administrative practice pursuant to which petitioner was paroled,4 the Congress specifically provided that parole 'shall not be regarded as an admission of the alien,' and that after the return to custody the alien's case 'shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.'5 (Emphasis added.) Petitioner's concept of the effect of parole certainly finds no support in this statutory language.

This Court previously has had occasion to define the legal status of excluded aliens on parole. In Kaplan v. Tod, 1925, 267 U.S. 228, 45 S.Ct. 257, 258, 69 L.Ed. 585, an excluded alien was paroled to a private Immigrant Aid Society pending deportation. The questions posed were whether the alien was 'dwelling in the United States' within the meaning of a naturalization statute, and whether she had 'entered or (was) found in the United States' for purpose of limitations. Mr. Justice Holmes disposed of the problem by explicitly equating parole with detention:

'The appellant could not lawfully have landed in the United States * * *, and until she legally landed 'could not have dwelt within the United States.' Zartarian v. Billings, 204 U.S. 170, 175, 27 S.Ct. 182, 183, 51 L.Ed. 428. Moreover while she was at Ellis Island she was to be regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared. United States v. Ju Toy, 198 U.S. 253, 263, 25 S.Ct. 644, (646), 49 L.Ed. 1040. When her prison bounds were enlarged by committing her to the custody of the Hebrew Society, the nature of her stay within the territory was not changed. She was still in theory of law at the boundary line and had gained no foothold in the United State.' 267 U.S. at page 230, 45 S.Ct. at page 257.

We find no evidence that the Congress, in enacting § 243(h) in 1952, intended to depart from this interpretation.

The context in which § 243(h) appears in the Act persuasively indicates the scope of its provisions. As we have observed, Title II of the Act preserves the distinction between exclusion proceedings and deportation (expulsion) proceedings, Chapter 4 dealing with the former and Chapter 5 with the latter. Within the two chapters are enumerated separate administrative procedures for exclusion and expulsion, separate provisions for removal and transportation, and—most significantly—separate provisions for stays of deportation. Section 243(h), under which petitioner claims relief, was inserted by the Congress not among Chapter 4's 'Provisions Relating to Entry and Exclusion,' but squarely within Chapter 5—a strikingly inappropriate place if, as petitioner claims, it was intended to apply to excluded aliens.

The parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted. It was never intended to affect an alien's status, and to hold that petitioner's parole placed her legally 'within the United States' is inconsistent with the congressional mandate, the administrative concept of parole, and the decisions of this Court. Physical detention of aliens is now the exception, not the rule, and is generally employed only as to security risks or those likely to abscond. See Annual Reports, Immigration and Naturalization Service, 1955, pp. 5—6; 1956, pp. 5 6. Certainly this policy reflects the humane qualities of an enlightened civilization. The acceptance of petitioner's position in this case, however, with its inherent suggestion of an altered parole status, would be quite likely to prompt some curtailment of current parole policy—an intention we are reluctant to impute to the Congress.

Affirmed.

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

The statutory provision in controversy is contained in § 243(h) of the Immigration and Nationality Act of 1952, 66 Stat. 212, 214, 8 U.S.C. § 1253(h), 8 U.S.C.A. § 1253(h), which reads:

'The Attorney General is authorized 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...

To continue reading

Request your trial
252 cases
  • Petgrave v. Aleman
    • United States
    • U.S. District Court — Southern District of Texas
    • March 29, 2021
    ...See, e.g., Thuraissigiam , 140 S.Ct. at 1977 (describing this distinction as a "century-old rule"); Leng May Ma v. Barber , 357 U.S. 185, 188–90, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (alien "paroled" into the United States pending admissibility determination had not effected "entry"); Mezei......
  • Rasel v. Barr
    • United States
    • U.S. District Court — Western District of New York
    • April 17, 2020
    ...and privileges not extended to those ... who are ‘merely on the threshold of initial entry’ " (quoting Leng May Ma v. Barber , 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) )). But "entry" is a far more flexible, fact-intensive determination than advanced by the respondents. For e......
  • Fragedela v. Thornburgh
    • United States
    • U.S. District Court — Western District of Louisiana
    • April 12, 1991
    ...to admitted, however, and a paroled alien remains classified as having never entered the country. Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958); Delgado-Carrera v. United States, 773 F.2d 629, 632 (5th Cir.1985); Fernandez-Roque I, 734 F.2d at 579. Sub......
  • Castellar v. McAleenan
    • United States
    • U.S. District Court — Southern District of California
    • June 7, 2019
    ...not extended to those in the former category who are merely ‘on the threshold of initial entry.’ " Leng May Ma v. Barber , 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (quoting Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ). "A......
  • Request a trial to view additional results
5 books & journal articles
  • Chapter 24 - EXHIBIT 24C • USCIS GUIDANCE CONCERNING UNLAWFUL PRESENCE
    • United States
    • Invalid date
    ...of the Act "[is] still in theory of law at the boundary line and [has] gained no foothold in the United States." Leng May Ma v. Barber, 357 U.S. 185, 188-189 (1958), quoting Kaplan v. Tod, 267 U.S. 228 (1925). Parole may be granted on a case-by-case basis for urgent humanitarian reasons (hu......
  • How Immigration Detention Became Exceptional.
    • United States
    • Stanford Law Review Vol. 75 No. 2, February 2023
    • February 1, 2023
    ...Prosecuted, supra). (415.) Sec DOW, supra note 414, at 6-7. (416.) GARCIA HERNANDEZ, supra note 211, at 47 (quoting Leng May Ma v. Barber, 357 U.S. 185, 190 (417.) Outside of the high-profile challenges to immigration detention, it is perhaps unsurprising that immigration detention was the ......
  • Due Process in Removal Proceedings After Thuraissigiam.
    • United States
    • Stanford Law Review Vol. 74 No. 4, April 2022
    • April 1, 2022
    ...at 207, 215. (91.) See Bosniak, supra note 77, at 411 (describing the parole doctrine in the immigration context); Leng May Ma v. Barber, 357 U.S. 185, 190 (1958) (explaining that a grant of parole "was never intended to affect an alien's status" and does not "place!]" one "legally within t......
  • Can the Boat People Assert a Right to Remain in Asylum?
    • United States
    • Seattle University School of Law Seattle University Law Review No. 4-01, September 1980
    • Invalid date
    ...in the opinion of the Attorney General, have been served the alien shall forthwith return . . . . 8 U.S.C. § 1182(d)(5) (1976). 112. 357 U.S. 185 (1958). 113. Id. at 186. 114. The Attorney General is authorized to withhold deportation of any alien within the United States to any country in ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT