Immigration and Naturalization Service v. Stanisic/Opinion of the Court

This case involves the type of hearing to which 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 officer in a proceeding conducted under § 242(b) of the Immigration and Nationality Act. Petitioner, the Immigration and Naturalization Service, argues that respondent's claim was properly heard and determined by a district director. We brought the case here, 393 U.S. 912, 89 S.Ct. 235, 21 L.Ed.2d 197 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967).

Respondent, a national of Yugoslavia, was a crewman aboard the Yugoslav vessel, M/V Sumadija, when it docked at Coos Bay, Oregon, in late December 1964. He requested and was issued a 'D-1' conditional landing permit, in accordance with 8 CFR § 252.1(d)(1) and § 252(a)(1) of the Immigration and Nationality Act. Under these provisions, the Service may allow a nonimmigrant alien crewman temporary shore leave for

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

On January 6, 1965, while on shore leave, respondent appeared at the Portland, Oregon, office of the Immigration and Naturalization Service. He claimed that he feared prosecution upon return to Yugoslavia, and he flatly stated that he would not return to the M/V Sumadija. On the basis of the latter statement, and in accordance with § 252(b) of the Act, the District Director revoked respondent's landing permit. Section 252(b) provides:

'(A)ny 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), 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 242 of this Act to (sic)      cases falling within the provisions of this subsection.'

Section 252(b) makes no express exception for an alien whose deportation would subject him to persecution. However, § 243(h) permits the Attorney General to withhold the deportation of any alien to a country in which he would be subject to persecution, and analogously, 8 CFR § 253.1(e) then provided:

'Any alien crewman * *  * 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 *  *  * 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.'

Thus, although respondent was admittedly deportable under the terms of § 252(b), he was not immediately returned to his vessel. On January 7, he was offered the opportunity to present evidence to the District Director in support of his claim of persecution.

Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard by a special inquiry officer in accordance with the general provisions of § 242(b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.

Respondent immediately sought relief in the United States District Court for the District of Oregon, which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent's claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent 'has (not) shown that he would be physically persecuted if he were to return to Yugoslavia.' Appendix 22.

On respondent's supplemental pleadings, the District Court held that the District Director's findings were supported by the record. The court rejected respondent's claim that he was entitled to a § 242(b) hearing before a special inquiry officer, relying on the last sentence of § 252(b), which provides: 'Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.' Vucinic (and Stanisic) v. U.S. Immigration and Naturalization Service, 243 F.Supp. 113 (D.C.1965).

Respondent did not appeal the District Court's decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent's effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia.

The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to § 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.

The Court of Appeals for the Ninth Circuit reversed. Stanisic v. U.S. Immigration and Naturalization Service, 393 F.2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director's adverse determination in 1965, and the District Court's unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port; but now the ship had long since sal ed, and respondent still had not been deported. The court held that § 252(b) only authorized respondent'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 * *  * (his) vessel departed.' 393 F.2d, at 542-543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director's 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under § 242(b) of the Act.

At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable something never contested by respondent-and a determination whether to grant political asylum to an otherwise properly deportable alien.

Section 242(b) provides a generally applicable procedure 'for determining the deportability of an alien * *  * .' Section 252(b) provides a specific procedure for the deportation of alien crewmen holding D-1 landing permits. Neither of these sections is concerned with the granting of asylum.

Relief from persecution, on the other hand, is governed by §§ 212(d)(5) and 243(h). The former section authorizes the Attorney General, in his discretion, to

'parole into the United States temporarily under such     conditions as he may prescribe for emergent reasons or for      reasons deemed strictly in the public interest any alien      applying for admission to the United States *  *  * .'

'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.'

No statute prescribes by what delegate of the Attorney General, or pursuant to what procedure, relief shall be granted under these provisions. By regulation, the decision to grant parole pursuant to § 212(d)(5) rests with a district director, 8 CFR §§ 212.5(a), 253.2; and by regulation, the decision to withhold deportation of most aliens pursuant to § 243(h) is presently made by a special inquiry officer. 8 CFR §§ 242.8(a), 242.17(c).

Prior to 1960, no regulation provided relief to an alien crewman whose D-1 landing permit was revoked but who claimed that return to his country would subject him to persecution. In United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (1960), a district court held that a crewman in this situation was entitled to be heard. The Service responded by promulgating 8 CFR § 253.1(e), supra, at 67, the regulation which it applied in the case at bar. 8 CFR § 253.1(e) is a hybrid. The grounds for relief are, for present purposes, identical to those of § 243(h) of the Act. However, because the Service adheres to the view that a crewman whose D-1 permit has been revoked is not 'within the United States' in the technical sense of that phrase, see Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958), it terms the relief 'parole' into the United States rather than 'withholding deportation.' Whatever terminological and conceptual differences may exist, the substance of the relief is the same.

The Service could provide that all persecution claims be heard by a district director, and we see no reason why the Service cannot validly provide that the persecution claim of an alien crewman whose D-1 landing permit has been revoked be heard by a district director, whether or not the ship has departed. It might be argued, however, that the Service has not done so; that 8 CFR § 253.1(e) was designed to govern the determination of persecution claims only when § 252(b) of the Act governed determinations of deportability; and that if departure of the vessel renders § 252(b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR § 253.1(e) likewise becomes inapplicable.

Section 253.1(e) applies, however, to '(a)ny alien crewman * *  * whose conditional landing permit issued under § 252.1(d)(1) (of 8 CFR) *  *  * is revoked'-precisely respondent's situation-and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E.g., United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967); Glavic v. Beechie, 225 F.Supp. 24 (1963), aff'd 340 F.2d 91 (1964). '(T)he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.' Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945).

In sum, it is immaterial to the decision in this case whether § 252(b)'s exception to the § 242(b) procedure is, or is not, applicable to respondent. These two provisions govern only the revocation of temporary landing permits and the determination of deportability, and we reiterate that respondent does not contest the District Director's action on either of these scores. These sections do not state who should hear and determine a request for asylum. That is a matter governed by regulation, and under the applicable regulation the respondent received his due.

We do not rest on this ground alone, however. Both the court below and the Court of Appeals for the Second Circuit in United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967), assumed that a crewman's statutory entitlement to a s 242(b) hearing on his request for asylum was coextensive with his right to a § 242(b) hearing on his statutory deportability, and the case was argued here primarily on that basis. For the balance of the opinion we thus make, arguendo, the same assumption. We conclude, contrary to the court below, that an alien crewman may properly be deported pursuant to § 252(b) even after his ship has sailed.

Section 242(b) of the Immigration and Nationality Act provides a generally applicable administrative procedure pursuant to which a special inquiry officer determines whether an alien is deportable. See nn. 1 and 2, supra.

The history of § 252(b)'s narrow exception to the § 242(b) deportation procedure is found in the Report of the Senate Committee on the Judiciary, S.Rep. No. 1515, 81st Cong., 2d Sess., which preceded the enactment of the Immigration and Nationality Act. Alien crewmen had traditionally been granted the privilege of temporary admission or shore leave 'because of the necessity of freeing international commerce from unnecessary barriers and considerations of comity with other nations * *  * .' Id., t  546. A serious problem was created, however, by alien crewmen who deserted their ships and secreted themselves in the United States. The Committee found that:

'(T)he temporary 'shore leave' admission of alien seamen who     remain illegally constitutes one of the most important      loopholes in our whole system of restriction and control of      the entry of aliens into the United States. The efforts to     apprehend these alien seamen for deportation are encumbered      by many technicalities invoked in behalf of the alien seamen and create conditions incident to enforcement of the laws      which have troubled the authorities for many years.' Id., at      550.

To ameliorate this problem, the Committee recommended that:

'Authority should be granted to immigration officers in a     case where the alien crewman intends to depart on the same      vessel on which he arrived, upon a satisfactory finding that      an alien is not a bona fide crewman, to revoke the permission      to land temporarily, to take the alien into custody, and to      require the master of the vessel on which he arrived to      detain him and remove him from the country.' Id., at 558.

Unlike § 242(b), § 252(b) does not prescribe the procedures governing the determination of the crewman's deportability, nor does it confine that determination to a special inquiry officer.

As the Court of Appeals noted, the § 252(b) procedure governs a narrow range of cases only. It is entirely inapplicable to persons other than alien crewmen. It does not apply to an alien crewman who enters the United States illegally without obtaining any landing permit at all, or who enters on a 'D-2' permit allowing him to depart on a different vessel. See n. 4, supra. The Service has held § 252(b) to be inapplicable even to a crewman issued a D-1 permit unless formal revocation-as distinguished from actual deportation-takes place before his vessel leaves American shores. Matter of M--, 5 I. & N.Dec. 127 (1953); 8 CFR § 252.2; see Cheng Fan Kwok v. U.S. Immigration and Naturalization Service, 392 U.S. 206, 207, 88 S.Ct. 1970, 1971, 20 L.Ed.2d 1037 (1968).

Section 252(b) most plainly governs the situation in which a D-1 landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port, so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman's deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him, and to the Service.

That this is not the only situation to which the § 252(b) procedure applies, however, is evident from the language of § 252(b) itself and the related provisions of § 254. Section 252(b) requires that where an alien crewman's landing permit is revoked his transportation company must detain him aboard the vessel on which he arrived, an deport him. Section 254(a) imposes a fine on the company and ship's master, inter alia, for failure to detain or deport the crewman 'if required to do so by an immigration officer.' However, § 252(b)'s requirement is modified by the term, 'if practicable'; and § 254(c) correlatively provides:

'If the Attorney General finds that deportation of an alien     crewman *  *  * on the vessel or aircraft on which he arrived      is impracticable or impossible, or would cause undue hardship      to such alien crewman, he may cause the alien crewman to be      deported from the port of arrival or any other port on      another vessel or aircraft of the same transportation line,      unless the Attorney General finds this to be impracticable.'

These provisions contemplate that an alien crewman whose temporary landing permit is revoked pursuant to § 252(b) may be deported on a vessel other than the one on which he arrived. The other vessel should preferably be one owned by the transportation company which which brought him to the United States, but if this is not feasible, the Attorney General may order him deported by other means, at the company's expense.

The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that § 254(c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed. From this it concluded that 'the section contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port * *  * .' 393 F.2d, at 546. Since arrangements for respondent's deportation had not been made before the M/V Sumadija departed, the § 254(c), and hence the § 252(b), procedures were no longer applicable: with the ship's departure, respondent became entitled to a hearing pursuant to § 242(b).

We agree that the 'clearance' provision of § 254(c) contemplates that the crewman's departure on another vessel may sometimes be accomplished or arranged before the vessel that brought him departs. If, however, the crewman's vessel sails before its owner has paid or guaranteed the expenses of deportation, the owner's liability under § 254(c) is in no way diminished. The Government has merely lost a useful means of compelling payment of costs which may still be collected by other methods. Indeed, as the Court of Appeals itself noted, § 254(c)'s financial responsibility provision is not limited to instances of deportation pursuant to § 252(b), but applies to the deportation of alien crewmen in a variety of situations, including those in which a § 242(b) proceeding has been held, and thus those in which the crewman's vessel may long since have departed.

Strong policies support the conclusion that a properly commenced § 252(b) proceeding does not automatically abort upon the departure of the crewman's vessel. If the crewman whose landing permit has been revoked pursuant to § 252(b) attacks the district director's action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit's construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman's vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard.

We agree with the court below that § 252(b) is a provision of limited applicability. But we conclude that the court's construction would restrict its scope to a degree neither intended by Congress nor supported by the language of the Act, and that it would, as a practical matter, render § 252(b) useless for the very function it was designed to perform.

We hold that an alien crewman whose temporary landing permit is properly revoked pursuant to § 252(b) does not become entitled to a hearing before a special inquiry officer under § 242(b) merely because his deportation is not finally arranged or effected when his vessel leaves, and that under these circumstances the Attorney General may provide-as he did in 8 CFR § 253.1(e), now 8 CFR § 253.1(f) that the crewman's request for political asylum be heard by a district director of the Immigration and Naturalization Service.

At the time of respondent's January 1965 hearing before the District Director, § 243(h) of the Immigration and Nationality Act provided:

'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 *  *  * .' (Emphasis added.)

By the Act of October 3, 1965, § 11(f), 79 Stat. 918, this section was amended by substituting for 'physical persecution' the phrase 'persecution on account of race, religion, or political opinion.' Although 8 CFR § 253.1(e), the regulation under which respondent's 1965 hearing was conducted, did not itself contain any restriction to 'physical persecution,' it is apparent from the District Director's findings that he read such a limitation into the regulation.

We believe, therefore, that it is appropriate that respondent be given a new hearing before the District Director under the appropriate standard, and we remand the case for that purpose.

The judgment of the United States Court of Appeals for the Ninth Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Judgment of Court of Appeals reversed and case remanded.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.