Shaughnessy v. Pedreiro/Dissent Minton

Mr. Justice MINTON, with whom Mr. Justice REED and Mr. Justice BURTON join, dissenting.

In Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, this Court held that § 19(a) of the Immigration Act of 1917, making decisions of the Attorney General 'final,' was a statute which precluded judicial review within the meaning of the first exception to § 10 of the Administrative Procedure Act. Now, slightly more than two years later, the Court holds that judicial review of deportation orders is available under § 10 even though § 242(b) of the 1952 Act is a re-enactment, almost verbatim, of the 'final' clause of the 1917 Act. The decision is based on three considerations. First, § 12 of the Administrative Procedure Act provides that, 'No subsequent legislation shall be held to supersede or modify the provisions of this act except to the extent that such legislation shall do so expressly', and, in the opinion of the majority, there is no language in the 1952 Act which 'expressly' establishes a more limited review. Second, it is believed more consistent with the liberal review provisions of the Administrative Procedure Act to construe 'final' as referring to finality in the administrative process. And third, isolated statements in the congressional debates indicate that Congress actually intended to permit review under the Administrative Procedure Act.

Section 12 of the Administrative Procedure Act, however, as I read it, applies only where subsequently enacted legislation, in the words of the Court, 'supersedes or modifies the expanded right of review granted by § 10 of the Administrative Procedure Act', and this Court held in the Heikkila case that the rights of aliens subject to deportation were not enlarged by the Administrative Procedure Act. Moreover, notwithstanding significant substantive changes in the immigration laws in the 1952 Act, I hesitate to consider the re-enactment of a provision, with minor changes in language, 'subsequently enacted legislation.' The issue then is much like the one the Court faced in Heikkila: whether, in the context of the liberal review provisions of the Administrative Procedure Act, Congress intended, by § 242(b), to preclude application of § 10 of the Administrative Procedure Act. As this Court pointed out in Heikkila, the word 'final,' though ambiguous in other contexts, as used in immigration legislation since the Immigration Act of 1891, has precluded judicial review except by habeas corpus. In view of this long history and the reenactment of § 242 with only minor textual changes, I hesitate to impute to Congress an intention to change the method of review absent a clear showing. The Court found in examining the legislative history that Representative Walter, one of the sponsors of the 1952 Act as well as of the Administrative Procedure Act, believed that § 10 of the Administrative Procedure Act applied to deportation orders. The statement by Senator McCarran, however, that 'the Administrative Procedure Act is made applicable to the bill,' in context, may merely refer to the administrative procedures aspect of an amendment proposed by Senator Moody. 98 Cong.Rec. 5778, 5779. In any event, the statements of Congressman Walter and Senator McCarran, in the course of debate on the floor, are less persuasive than the more carefully prepared and authoritative committee report and the report of the Senate Committee in charge of the bill would seem to indicate that no change in the law was intended.

The Immigration and Nationality Act of 1952 was preceded by extensive studies of the structure and operation of the immigration law. These studies culminated in a report by the Senate Committee on the Judiciary entitled, The Immigration and Naturalization Systems of the United States, S.Rep. No. 1515, 81st Cong., 2d Sess. 28. It contains the following statement, at page 629:

'Judicial review

'Once the order and warrant of deportation are issued, the     administrative process is complete. Under the fifth amendment     to the Constitution, the 'due process' provision, the alien      may, however, petition for a writ of habeas corpus. In a     habeas corpus proceeding, based on a deportation case, the      court determines whether or not there has been a fair      hearing, whether or not the law has been interpreted      correctly, and whether or not there is substantial evidence      to support the order of deportation. Habeas corpus is the     proper remedy to determine the legality of the detention of      an alien in the custody of the Immigration and Naturalization      Service. The dismissal of an application for a writ of habeas     corpus is not a bar to the filing of another application      before another judge.'

Although this report was dated April 1950, it serves to clarify any ambiguity in the statement in the Senate report accompanying the bill in final form that judicial review in immigration cases was not expanded 'beyond that under existing law.' S.Rep. No. 1137, 82d Cong., 2d Sess. The Committee, in using the phrase 'existing law,' particularly in light of the long history of exclusive habeas corpus review, was necessarily referring to the law as understood and expressed in its prior report. Moreover, the report also states, at page 30, that 'The bill declares that the prescribed deportation proceedings shall be the sole and exclusive procedure for determining the deportability of any alien, notwithstanding the provisions of any other law.' The legislative history, therefore, would seem to make it unmistakably clear that Congress, aware that the word 'final' as used in immigration legislation was not ambiguous, intended to preserve habeas corpus as the only escape from a deportation order. It was error to give relief under the Administrative Procedure Act.