Leng May Ma v. Barber/Dissent Douglas

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 deems to be necessary for such reason.'

The alien who is physically present in this country is about to be sent to Communist China-a country which the Immigration and Naturalization Service itself has told us is inhospitable to refugees.

The question for us is not whether she should or should not be returned to China. It is whether the Attorney General has discretion to withhold her deportation if in his opinion she would be 'subject to physical persecution' were she returned to that country.

This alien is not in custody at our border. She is here on parole. The authority to parole is contained in § 212(d)(5) of the Act-the Attorney General may 'in his discretion' parole an alien 'into the United States.' How an alien can be paroled 'into the United States' and yet not be 'within the United States' remains a mystery.

Of course if we had the problem of Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585, different considerations would come into play. There an alien on parole sought to have her years here used to gain herself citizenship. Alternatively, she argued that the statute had run on her deportation since her parole was an 'entry.'

No such enlargement of the prerogatives of a parolee is sought here. This alien seeks not citizenship, not residence, but only the shelter of a provision of the law designed to protect such refugees from the fate of 'physical persecution.' She only requests that she be eligible to be considered by the Attorney General as a beneficiary of this humane provision of our law. Only a hostile reading can deny her that respite.

I would not read the law narrowly to make it the duty of our officials to send this alien and the others in the companion case to what may be persecution or death. Technicalities need not enmesh us. The spirit of the law provides the true guide. It makes plain, I think, that this case is one of those where the Attorney General is authorized to save a human being from persecution in a Communist land.