Rosenberg v. Yee Chien Woo/Dissent Stewart

Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.

On March 8, 1966, the respondent, who fled mainland China for Hong Kong in 1953 and has resided in the United States since May 22, 1960, filed with the Immigration and Naturalization Service an application for adjustment of status pursuant to § 203(a)(7) of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1153(a)(7) (1964 ed., Supp. V). By the terms of § 203(a)(7) applicants for adjustment of status are required to show:

1. that they 'have been continuously physically present in the United States for a period of at least two years prior to application for adjustment of status;'

2. that 'because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area * *  * ;'

3. that they 'are unable or unwilling to return to such country or area on account of race, religion, or political opinion;'

4. that they 'are not nationals of the countries or areas in which their application for conditional entry is made. * *  * '

The District Director denied the respondent's application for adjustment of status because of 'intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.' An administrative appeal was certified to the Regional Commissioner who held that § 203(a)(7) does not apply 'to aliens who although they had fled from their own country were later resettled in another country.'

Section 203(a)(7) contains no requirement that an applicant shall not have 'resettled' prior to his application for conditional entry or adjustment of status. A requirement that an applicant shall not have 'firmly resettled' did appear in an earlier version of the law but was eliminated by the 1957 amendments to the Refugee Relief Act of 1953. The requirement was not reintroduced in any of the subsequent enactments. To the contrary, cognizant House and Senate committees rejected a proposal of the Department of State that contained a requirement that a refugee alien must be one who 'has not been firmly resettled * *  * .' S.Rep. No. 1651, 86th Cong., 2d Sess., 19; H.R.Rep. No. 1433, 86th Cong., 2d Sess., 12. Senator Kennedy, who, as Chairman of the Subcommittee on Immigration and Naturalization of the Senate Judiciary Committee, presided over Senate hearings on the present § 203(a)(7), stated that refugees '(a)s defined in this bill' 'must be currently settled in countries other than their homelands.' 111 Cong.Rec. 24227. This statement is flatly inconsistent with the proposition that the persons described in § 203(a) (7) cannot have resettled in another country following their original flight.

In the face of the unambiguous language of § 203(a)(7) and this clear legislative history, the Court today holds that a requirement of firm resettlement may properly be read back into the statute so as not to subvert what it considers to be the 'central theme' of refugee legislation-'the creation of a haven for the world's homeless people.' I have no doubt that in enacting refugee legislation Congress intended to provide a haven for the homeless. But the Court offers no reason to believe that Congress did not also intend to help those others who have fled their homeland because of oppression, have found a temporary refuge elsewhere, and now desire to immigrate to the United States. Congress may well have concluded that such people should be preferred to immigrants who have not suffered such hardship. The clear language of § 203(a)(7) demonstrates to me that this was exactly what Congress intended to accomplish.

Whether the Attorney General has discretion concerning the order in which § 203(a)(7) applications are processed is a different issue and one that is not before us. The Attorney General has not sought to invoke whatever discretion he may have to process the applications of the homeless before turning to those whose plight may be thought less pressing. Indeed it appears that in many years a number of the visas annually available for § 203(a)(7) applicants have gone unused.

The only issue before the Court is whether a refugee is totally barred from any consideration under § 203(a)(7) by virtue of resettlement following flight. In view of the language of the statute and its legislative history, I cannot but conclude that under § 203(a)(7) the respondent was eligible for the adjustment of status that he sought.

For these reasons I dissent.