Marcello v. Ahrens, 14718.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BORAH and RUSSELL, Circuit , and DAWKINS
• Citation: 212 F.2d 830
• Parties: MARCELLO v. AHRENS.
• Docket Number: No. 14718.,14718.
• Decision Date: 25 May 1954

212 F.2d 830 (1954)

MARCELLO
v.
AHRENS.

No. 14718.

United States Court of Appeals, Fifth Circuit.

May 6, 1954.

Rehearing Denied May 25, 1954.

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Wm. C. Orchard, New Orleans, La., for appellant

M. Hepburn Many, Asst. U. S. Atty., George R. Blue, U. S. Atty., New Orleans, La., Douglas P. Lillis, Act. Dist. Counsel, Miami, for appellee.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

RUSSELL, Circuit Judge.

Carlos Marcello, a resident alien, was arrested and taken into custody by the United States Immigration Inspector at New Orleans, Louisiana, on December 30, 1952, under a warrant issued pursuant to section 242¹ of the Immigration and Nationality Act of 1952.² The warrant charged specifically that Marcello was subject to be deported under section 241(a)(11) of the Act³ for the reasons set forth in the margin.⁴ Pending a hearing, which was three times continued, the alien was released under bond. The hearing was held at New Orleans on February 16, 1953, at which time the alien interposed objections to further proceedings on constitutional grounds. During the course of the hearing the special inquiry officer advised the alien, through his counsel, of his right to apply for a suspension of deportation,⁵ which application must be made during the hearing, according to applicable regulations.⁶ Counsel stated that the alien did not wish to apply for such relief. The decision and order of the special inquiry officer, rendered February 20th, held that Marcello was deportable for the reasons stated in the warrant and ordered that he be deported from the United States in the manner provided by law.

After rendition of the decision and order of deportation, the alien filed a motion to reopen the hearing to permit him to apply for discretionary relief by suspension of deportation. This motion was denied by the special inquiry officer on the ground that "the motion failed to state any new facts to be proved at the reopened hearing." In argument before the Board of Immigration Appeals the alien renewed his claim of deprivation of constitutional process and in addition urged that his motion to reopen the hearing should be granted, "unless the Government is prepared to waive that technical objection and permit the application for suspension to be considered by the Board."

The Board of Immigration Appeals overruled the alien's objections to the

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proceedings before the special inquiry officer and his attacks against the constitutionality of such proceedings, but accepted his proposal to consider his application for discretionary relief on the record made before the hearing officer. It conceded arguendo that the alien could establish an "`exceptional and extremely unusual hardship' case" and his "good moral character" and that he would be able to establish all of the requirements essential to the invocation of its discretion,⁷ but, for reasons⁸ stated in its decision, the Board declined to grant such relief. The appeal was dismissed

On June 2, 1953, the alien petitioned the district court for the writ of habeas corpus. The writ was issued and on June 5, 1953, a hearing was held at which time the alien offered in evidence the official record of the Immigration and Naturalization Service containing the full record of his deportation proceedings and rested without offering further evidence in support of the allegations of his petition. The district court, in an able memorandum opinion.⁹ held the deportation order valid and accordingly entered judgment discharging the writ. From the order of dismissal, Marcello has taken this appeal.

There is no question but that under section 241(a)(11), supra, Marcello is subject to deportation. He does not deny that in October, 1938, he was convicted, on his plea of guilty to an indictment containing two counts, of violating the Marihuana Tax Act of 1937.¹⁰ However,

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it is contended that the district court erred in discharging the writ of habeas corpus on the ground that section 242(b), supra, is violative of the Fifth Amendment to the Constitution of the United States in that it fails to meet the currently accepted standards for a fair and impartial hearing because: (1) investigative and prosecutive functions of the special inquiry officer are commingled with his adjudicative functions and (2) such officer is amenable to the supervision of the Attorney General whose responsibility it is to enforce the deportation statutes. He argues that sections 241(a)(11) and 241(d) of the Act, which authorize deportation for offenses committed prior to the effective date of the Act, are unconstitutional as ex post facto laws in that they imposed an additional punishment for an act greater than the law annexed to the crime when it was committed. Finally, he contends that he was entitled to a hearing on his application for discretionary relief which was denied him

As we understand appellant's argument, he urges that the proceedings prescribed by section 242(b) are subject to, but not in conformity with, the Administrative Procedure Act,¹¹ or, if not subject to the requirements of that Act, then section 242(b) is violative of the Due Process Clause of the Fifth Amendment, since the Administrative Procedure Act establishes the "currently accepted standards of fairness and impartiality" necessary to constitute due process of law in administrative hearings. Clearly the procedure prescribed by section 242(b) does not accord with section 5(c)¹² of the Administrative Procedure Act, and we shall consider first the contention that in all respects the requirements of the Administrative Procedure Act are controlling.

It is not necessary for decision in this case to consider the broad proposition of whether deportation proceedings are subject to requirements of the Administrative Procedure Act¹³ as concerns matters not expressly provided by the Immigration Statute. Our investigation is limited to a determination of whether the proceedings provided for by section 242 (b), which were followed in this case, are invalid because contrary to that Act. Prior to the enactment of the Immigration and Nationality Act of 1952, there was no express provision in the immigration law requiring that a hearing be granted a deportee. Such matters were left largely to be administered under regulations promulgated by the Attorney General. However, under the decisions of the Supreme Court,¹⁴ the requirement for a fair hearing was necessarily implicit in the deportation statutes and such hearing was required to conform to the Administrative Procedure Act. Following the decision of the Supreme Court in the Sung case, Congress, by a rider to the supplemental appropriations bill enacted in September, 1950,¹⁵ exempted "Proceedings under law relating to the exclusion or expulsion of aliens" from the provisions of sections 5, 7 and 8 of the Administrative Procedure Act. This rider was repealed by the Immigration and Nationality Act of 1952, which specifically prescribed the procedure to be followed in deportation cases in section

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242(b) thereof with a further provision that

"The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section."

Appellant relies upon the decision in the Sung case to support his contention that deportation proceedings are amenable to the requirements of the Administrative Procedure Act. However, at the time Sung was ordered deported Congress had prescribed no procedure to govern deportation proceedings. In the absence of such legislation the Supreme Court held that the hearing to which Sung was entitled under its prior decisions must conform to the Administrative Procedure Act. Since that time Congress has provided a "sole and exclusive" procedure for determining the deportability of an alien, and therefore, the Sung case is no longer applicable. The case of Rubinstein v. Brownell, footnote 13, supra, has no application here. It holds merely that a deportation order issued pursuant to the Immigration and Nationality Act of 1952 is subject to judical review under section 10 of the Administrative Procedure Act.

In view of the plain language of the Immigration Statute, it is difficult to follow appellant's argument that the Administrative Procedure Act has the effect of nullifying the subsequent Act of Congress. He admits that section 242(b) reveals "an unmistakable attempt by Congress to exempt immigration proceedings" from the Administrative Procedure Act, but contends that it has failed to do so. The force of appellant's argument is that by some means the Administrative Procedure Act has the standing of a Constitutional Amendment and Congress is powerless to provide for administrative hearings which do not conform to it. Of course, there is no validity to such an argument.

Section 7(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1006 (a), exempts from the purview of that Act "specified classes of proceedings * * * specially provided for by or designated pursuant to statute." We are persuaded that this exemption is applicable to hearings held under section 242 (b). Furthermore, and controlling here, even in the absence of such provision, it was within the power of Congress to exempt such proceedings as those under review from the requirements of its creature, the Administrative Procedure Act. It is fundamental that a prior statute must yield to a subsequent valid act of Congress, insofar as the statutes are repugnant. We hold, therefore, that to the extent the proceedings prescribed by section 242(b) are inconsistent with the Administrative Procedure Act, the requirements of the latter Act are inapplicable to the deportation proceedings.

It is beyond question that an alien has no absolute right to remain in the United States. Congress has plenary power over aliens and may...