United States v. Esperdy

• Decision Date: 08 November 1967
• Docket Number: No. 150,Docket 31722.,150
• Citation: 386 F.2d 232
• Parties: UNITED STATES ex rel. Tomislav KORDIC and Venka Kordic, Appellants, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

386 F.2d 232 (1967)

UNITED STATES ex rel. Tomislav KORDIC and Venka Kordic, Appellants, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, Appellee.

No. 150, Docket 31722.

United States Court of Appeals Second Circuit.

Argued September 22, 1967.

Decided November 8, 1967.

Leon Polsky, New York City (Edward Q. Carr, Jr., Legal Aid Society, Robert L. Feldt, New York City, on the brief), for appellants.

Francis J. Lyons, Sp. Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Daniel Riesel, Sp. Asst. U. S. Atty., on the brief), for appellee.

Before: WATERMAN, HAYS and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Tomislav Kordic and Venka Kordic, husband and wife, appeal from an order of the United States District Court for the Southern District of New York, Edward C. McLean, J., dismissing a writ of habeas corpus. 276 F.Supp. 1 (S.D. N.Y.1967). Appellants contend that they were denied a proper administrative hearing on their claim under 8 U.S.C. § 1253(h) that they would be subject to political persecution if returned to Yugoslavia. They also argue that the district court adopted an improper standard in reviewing the decision of the District Director denying them relief. For the reasons given below, we affirm.

Appellants were members of the crew of the Yugoslav vessel M/V Goranka, which arrived in Portland, Oregon on June 22, 1967. They each received a so-called D-1 conditional landing permit, which grants shore privileges for no more than twenty-nine days, but only while the vessel is in a United States port and if the crewman's passport is surrendered for safekeeping to the master of the vessel. See 1 Gordon & Rosenfield, Immigration Law and Procedure § 6.2c at 6-17 (rev.ed.1966). The conditional landing permits were issued under 8 U.S.C. § 1282(a) (1), which provides:

(a) No alien crewman shall be permitted to land temporarily in the United States except as provided in this section * * *. If an immigration officer finds upon examination that an alien crewman is a nonimmigrant * * * and is otherwise admissible and has agreed to accept such permit, he may, in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b) of this section, and for a period of time, in any event, not to exceed —

(1) the period of time (not exceeding twenty-nine days) during which the vessel * * * on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel * * * on which he arrived.

The permit required appellants to depart with the Goranka from Portland; it also allowed them to rejoin the vessel at another United States port if they had "advance written permission from the master * * * to do so." 8 C.F.R. § 252.1 (d). Without such permission, appellants immediately flew from Portland to New York City, deserting their ship. They were located on June 29, 1967, and on that date their permits were revoked under 8 U.S.C. § 1282(b), which provides:

(b) Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel * * * 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 * * * on which the crewman arrived to receive and detain him on board such vessel * * *, 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. Until such alien is so deported, any expenses of his detention shall be borne by such transportation company. 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.

At the time appellants were apprehended, the Goranka was still in a United States port, and was scheduled to sail about July 7, 1967.

Before appellants were returned to the vessel under the statutory procedure set forth above, they applied to the District Director to withhold their deportation under 8 U.S.C. § 1253(h). That section provides:

(h) 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 persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.

A Supervisory Immigrant Inspector interviewed appellants early in July 1967. The District Director concluded that no showing of "persecution" had been made and directed that they be returned to the vessel. Appellants applied to the District Court for the Southern District of New York for a writ of habeas corpus; meanwhile the Goranka sailed without them. On July 25, Judge Bonsal ordered the District Director to grant appellants further interviews, with their attorney present, and an opportunity to call witnesses and offer evidence in support of their claim of persecution. However, he denied the writ, without prejudice to later renewal. 274 F.Supp. 873 (S.D. N.Y.1967). Thereafter, there were further interviews before the same inspector and a Trial Attorney of the Immigration and Naturalization Service; at these, appellants and two brothers of Mrs. Kordic testified. On August 23, the District Director rejected appellants' claim for the second time. Appellants again sought a writ of habeas corpus; on September 12, Judge McLean dismissed the writ, and this appeal followed.

I

Appellants first argue that they were entitled to a hearing before a special inquiry officer of the Service — which for want of a better term we hereafter call a "formal" hearing — rather than before other Service officials. They assert that "with only one exception" — crewmen covered by 8 U.S.C. § 1282(b) whose ships are still in port — all aliens legally within the United States have a statutory right to a hearing before a special inquiry officer on a claim of political persecution when the Government seeks to deport them. 8 U.S.C. § 1252(b); 8 C.F.R. § 242.17(c). Appellants argue that the exception is improper. The hearing appellants did receive was pursuant to 8 C.F.R. § 253.1(e), which provides:

Crewman alleging persecution. Any alien crewman denied a conditional landing permit or whose conditional landing permit issued under § 252.1(d) (1) of this chapter is revoked who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied 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 212(d) (5) of the Act 8 U.S.C. § 1182(d) (5) for the period of time and under the conditions set by the district director having jurisdiction over the area where the alien crewman is located.

The hearing was by no means perfunctory or unfair, as we hold in a later part of this opinion. But if appellants are correct in their first assertion, it was improper nonetheless because it was not before a special inquiry officer.

At this point it may be helpful to consider the effect of the immigration laws generally upon alien crewmen. Originally, these laws did not apply to seamen, but Congress found that many aliens were using the guise of this occupation to obtain unlawful entry. Accordingly, regulation of this group began half a century ago. 1 Gordon & Rosenfield, Immigration Law and Procedure § 6.1 (rev.ed.1966). Before passage of the 1952 Immigration and Nationality Act, the Senate Judiciary Committee recommended stringent controls designed to keep temporary stays of foreign seamen in United States ports from becoming permanent.¹ 8 U.S.C. § 1282 was enacted in response thereto. As that statutory language makes clear, generally speaking, no alien crewman is allowed to land even temporarily in the United States without the permission of an immigration officer. However, there are other ways for an alien seaman to effect initial physical entry. For example, under 8 U.S.C. § 1182(d) (5), the Attorney General may "parole" any alien — including a crew member — into the United States "for emergent reasons or for reasons deemed strictly in the public interest." An obvious reason would be for medical treatment, as was the case in United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (2d Cir. 1965). Finally, of course, a seaman's initial entry into the country may be completely illegal, such as by jumping ship and swimming ashore.

In some of these situations, well-established doctrines have evolved. A "parolee," even though physically in the country, is not regarded as having "entered" and thus has not acquired the full protection of the Constitution. If he is required to leave the United States, he is being excluded, not expelled. Thus, when a "paroled" alien alleged the threat of political persecution, the Supreme Court held that she was not even entitled to make a claim under 8 U.S.C. § 1253(h), since she was not "within the United States" as required by that section. Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). Conversely, an alien whose initial physical presence here was illegal, but whose presence is recognized as an "entry" in law, is said to be subject to expulsion, not exclusion. He is entitled to "additional rights and privileges not extended to those in the former category who are `merely on the threshold of initial entry.'" Id. at 187, 78 S.Ct. at 1073. See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (195...