Stanisic v. UNITED STATES IMMIGRATION AND NAT. SERV.

Decision Date17 April 1968
Docket NumberNo. 21272.,21272.
Citation393 F.2d 539
PartiesVeljko STANISIC, Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE etc., Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

G. Bernhard Fedde (argued), Don Eva, Bartlett F. Cole, Sr., Portland, Or., for appellant.

Norman Sepenuk (argued), Asst. U. S. Atty., Sidney Lezak, U. S. Atty., Portland, Or., Steve Suffin, Atty., INS, San Francisco, Cal., for appellees.

Before BROWNING, DUNIWAY, and ELY, Circuit Judges.

BROWNING, Circuit Judge:

Appellant Stanisic, a Yugoslavian national arrived in Coos Bay, Oregon, as a crewman aboard the M-V SUMADIJA, a Yugoslavian vessel. He was issued a shore leave permit by a United States immigration officer pursuant to 8 U.S.C. § 1282(a) (1) (1964) and 8 C.F.R. § 252.1(d) (1).

Three days later, after several visits ashore, appellant presented himself at the office of the District Director of the Immigration and Naturalization Service at Portland, Oregon, to request asylum. His landing permit was immediately revoked under the authority of subsection (b) of section 1282, which provides that "any immigration officer may, in his discretion, if he determines that an alien * * * does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a) (1) of this section, take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. * * * Nothing in this section shall be construed to require the procedure prescribed in section 1252 of this title to cases falling within the provisions of this subsection."

On the following day appellant was offered an opportunity to make a showing before the District Director in support of his claim for asylum under 8 C.F.R. § 253.1(e), which provides that an alien crewman whose "conditional landing permit issued under § 252(d) (1) of this chapter is revoked who alleges that he cannot return to a Communist * * * country because of fear of persecution in that country on account of race, religion, or political opinion may be paroled into the United States under the provisions of section 252(d) (5) of the Act 8 U.S.C. § 1182(d) (5) * * *."

Appellant's counsel refused the offer, contending that appellant was entitled to have his claim considered, not as an application for parole under the regulation, but rather as a petition for stay of deportation under 8 U.S.C. § 1253(h) (1964), which (as it then read) authorized 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 persecution * * *." Appellant's counsel contended that the claim should be heard in accordance with the procedures established by 8 U.S.C. § 1252(b) (1964), which included a hearing before a Special Inquiry Officer with a full array of procedural protections, followed by administrative review.

The District Director denied appellant's claim for asylum for want of a supporting showing, and ordered that appellant be returned to his ship. Appellant's counsel filed suit in the court below seeking review of the District Director's order and injunctive relief.

The district court held that appellant was not entitled to a section 1252(b) hearing because of the express provision of section 1282(b), quoted above, that "Nothing in this section shall be construed to require the procedure prescribed in section 1252 of this title to cases falling within the provisions of this sub-section." However, the court stayed the District Director's order and referred the matter back to the District Director with instructions to hold a hearing under 8 C.F.R. § 253.1(e).

Appellant offered evidence in support of his claim before a delegatee of the District Director. On the basis of the record made, the District Director concluded that the facts "do not establish that applicant has shown that he would be physically persecuted if he were to return to Yugoslavia," and denied relief. The district court, which had retained jurisdiction, sustained the administrative action, and dissolved the stay order. Stanisic v. Immigration & Naturalization Service, 243 F.Supp. 113 (D.Ore.1965).

Appellant did not appeal, but instead unsuccessfully petitioned Congress for a private bill. When the District Director thereafter ordered appellant to appear for removal, appellant submitted a renewed application for stay of deportation under section 1253(h), pointing out that subsequent to the hearing by the District Director on appellant's prior application, the statute had been amended to remove the limitation of relief to cases involving "physical" persecution. Appellant requested a full section 1252(b) hearing under the revised standard. He also sought permission to depart voluntarily at his own expense if his petition were rejected.

The District Director denied the new application without a hearing. He stated that the first hearing had been held under the regulation, rather than the statute, and that the regulation had always read as the statute was later amended to read. He reiterated his position that appellant was not entitled to section 1252(b) procedures, and relied upon the earlier district court decision approving this view. He rejected appellant's request for voluntary departure on the ground that under section 1282(b) appellant "is to be placed in the custody of the steamship company which brought him to the United States and his deportation from the United States is to be effected by the steamship company." The District Director therefore denied appellant's petition in its entirety and ordered appellant to appear for removal three days later.

Appellant filed a complaint in the district court, challenging the District Director's decision and praying for a restraining order on various grounds which, so far as necessary to our decision, are stated below. Appellees answered. The district court entered judgment on the pleadings, denying appellant any relief. This appeal followed.

Both sides support the jurisdiction of the district court to enter the judgment appealed from.

Since the order of the District Director was not entered in a section 1252(b) proceeding, it is not within the purview of 8 U.S.C. § 1105a(a) (1964), which vests exclusive jurisdiction to review section 1252(b) orders in the Courts of Appeals. Yamada v. Immigration & Naturalization Service, 384 F.2d 214 (9th Cir. 1967).

Since the order was not one made under the provisions of 8 U.S.C. § 1226 (1964), appellant's remedy in the district court was not limited to habeas corpus by 8 U.S.C. § 1105a(b) (1964). We see no reason why the order could not be reviewed by the district court under the Administrative Procedure Act, 5 U.S.C. § 1009 (1964) — as that court held in entertaining appellant's first complaint. 243 F.Supp. at 115-116. But even if habeas corpus were the exclusive remedy, it would be available to appellant, for he was, and now is, subject to a parole order of the District Director. Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

The district court therefore had jurisdiction to review the District Director's order.

Appellees urge us to hold that the question of whether appellant was entitled to the deportation procedures of section 1252(b) was decided against him by the district court in appellant's first action, and since the judgment in that action has become final the issue is not open to reexamination.

Appellant points out that the ship upon which he arrived and on which he was to depart was still in port when the District Director entered the order reviewed in the first action, but that it had departed long before the District Director entered the order attacked in the second action.1 He contends that this factual difference raises a wholly different legal issue, rendering the second order erroneous, even assuming the correctness of the first.2

We agree. We conclude that subsection (b) of section 1282 authorized appellant's summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before appellant's vessel departed.3 We further conclude that since section 1282(b) did not authorize summary deportation of appellant in the circumstances existing when the District Director entered the order under review, appellant could be deported only in accordance with sections 1251 and 1252 of the Act.

We turn first to the premise that the general provisions regarding deportation found in sections 1251 and 1252 of the Act apply to alien crewmen who have been permitted to land for shore leave, except as section 1282(b) precludes their application.

Section 1251(a) states that "any alien in the United States (including an alien crewman)" shall be deported if he falls within one of the categories described in that section. Section 1252(b) outlines the procedures "to determine the deportability of any alien." Thus the language of sections 1251 and 1252 is broad enough to include alien crewmen who have landed under section 1282(a) permits if such crewmen are "in the United States," as that phrase is used in section 1251, and are not merely "on the threshold of initial entry," as are persons paroled into the United States under section 1182(d) (5). Shaughnessy v. U. S. ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953). See also Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958); United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989, 990 (2d Cir. 1965).

Congress apparently thought alien crewmen landing under ...

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4 cases
  • Siu Fung Luk v. Rosenberg
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Junio 1969
    ...under parole. Those cases cited by appellant in support of a contrary conclusion are not controlling. In Stanisic v. United States Immigration & Nat. Serv., 393 F.2d 539 (9th Cir. 1968), the alien received a conditional landing permit under 8 U.S.C. § 1282(a) (1) and therefore "entered" the......
  • Immigration and Naturalization Service v. Stanisic, 297
    • United States
    • United States Supreme Court
    • 19 Mayo 1969
    ...an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals, 9 Cir., 393 F.2d 539, sustained the respondent crewman's contention that he must be heard by a special inquiry officer1 in a proceeding conducted under § 242......
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    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 27 Octubre 1982
    ...e.g., Stevic v. Sava, 678 F.2d 401, 404 n. 6 (2d Cir. 1982); Sotelo Mondragon v. Ilchert, supra; Stanisic v. United States Immigration and Nat. Service, 393 F.2d 539, 542 (9th Cir.1968)). The denial of parole pending final determinations of the receiving country and the asylum matters, and ......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
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