Immigration and Naturalization Service v. Stanisic/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
Two procedures for the deportation of aliens are relevant in this case. The first is set forth in § 242(b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U.S.C. § 1252(b), and is the procedure required in most instances when the Government seeks to deport an alien. Under § 242(b) a number of procedural safeguards are specified to insure that an alien is given the full benefit of a complete and fair hearing before the harsh consequence of deportation can be imposed on him.  The second procedure involved in this case is set forth in § 252(b). It is applicable only under very special circumstances involving alien seamen who enter this country under conditional landing permits. Section 252(b) provides for a short, summary procedure.  Unlike § 242(b), the first provision mentioned, this second provision does not require that the hearing officer be someone unconnected with the investigation and prosecution of the case. It does not require specific trial safeguards such as the rights to notice, counsel, and crossexamination of witnesses. Indeed, § 252(b) apparently does not require that the alien be given any hearing at all but would seem to authorize an immigration officer to order immediate arrest and summary deportation on the basis of any information coming to him in any way at any time. The question before the Court is therefore not the apparently insignificant question suggested by the Court's opinion-namely, whether this alien's case was properly determined by an official with one title, 'District Director,' rather than another title, 'special inquiry officer.' Instead, the question is the crucially significant one whether an alien seaman about to be forced to leave the country is entitled under the circumstances of this case to the benefit of safeguards that were carefully provided by Congress to insure greater fairness and reliability in deportation proceedings.
The regulations relied on by the Court in Part II of its opinion do not provide an independent basis for its holding. Among the relevant regulations, 8 CFR § 242.8(a) applies '(i)n any proceeding conducted under this part,' namely 'Part 242 Proceedings to Determine Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal.' The regulation is thus designed to spell out further the details of proceedings required to be conducted under § 242 of the statute, and this regulation explicitly authorizes the special inquiry officer 'to order temporary withholding of deportation pursuant to section 243(h) of the Act (the political persecution provision).' In contrast, the regulations relied upon by the Court as authorizing a District Director to decide this issue, in particular former 8 CFR § 253.1(e), apply by their own terms only to the procedure for 'parole' of an alien under § 212(d) (5), a remedy distinct from the withholding of deportation under § 243(h), and by the Government's own admission these regulations are applicable only to 'requests for asylum made by crewmen against whom proceedings under Section 252(b) have been instituted.' Brief for Petitioner 37. Thus, the regulations serve only to spell out the procedures to be followed under both § 242(b) and § 252(b) and do not even purport to specify when one of the sections rather than the other is in fact applicable. The fact that the Immigration and Naturalization Service has applied the regulations differently does not change this meaning. As the Court concedes, the regulation is 'not free from ambiguity,' ante, at 72, and of course the ambiguity in the regulation is precisely the same as the ambiguity in the statutory provision from which the wording of the regulation was drawn. It seems clear that the way in which the Service has applied the regulation has been determined by its interpretation of the statute, an interpretation that is in no way binding on us. Both the statute and the regulation are ambiguous, and there is no doubt in my mind that this ambiguity should be resolved in favor of the alien who is seeking a full and fair hearing. With all due respect, I think the Court's involved argument based upon the regulations, which goes beyond anything suggested by the Government itself in this case, provides no basis whatsoever for avoiding the fundamental question of statutory interpretation as to which of the two procedures, § 242(b) or § 252(b), was required to be followed in this case.
The Government contends that respondent, the alien seaman involved here, could be properly deported under the special summary procedures of § 252(b) because his conditional landing permit was revoked and because § 252(b) authorizes summary deportation after this permit is revoked. Respondent, however, argued in the Court of Appeals that he should have been given the benefit of the careful hearing procedures spelled out by Congress in § 242(b) because the ship on which he came had departed before the decision of theD istrict Director was made, and therefore the only justification for the fast but ordinarily less desirable procedure of § 252(b) no longer existed. The Court of Appeals held that § 252(b) proceedings were authorized only prior to the departure of the ship. I agree with the Court of Appeals. As that court noted in its opinion:
'The section (252(b)) exception (to the general procedure requirements of § 242(b)) is very narrowly drawn. It does not apply to the deportation of crewmen who have 'jumped ship' and entered the United States illegally, with no permit at all. As noted above, it does not apply to crewmen issued landing permits authorizing them to depart on vessels other than those on which they arrived. It does not apply to crewmen who have overstayed the twenty-nine day leave period without revocation of their landing permits. It does not apply to crewmen who were to leave on the vessel on which they arrived if their vessels have departed before their landing permits are revoked. In all of these situations crewmen may be deported only in accordance with (§ 242(b)) procedures.' 393 F.2d 539 544.
As the legislative history of the Act, quoted in the opinion of the Court of Appeals, shows, the special truncated procedure of § 252(b) was intended to be used only when the need for speed was truly pressing-when the ship was about to leave port. But the seaman in this case was subjected to this truncated, summary procedure even though his ship had already gone and the need for haste in completing these important legal proceedings no longer existed. There is no reason to suspect that Congress wanted a seaman to be deprived under these circumstances of the vital procedural safeguards so carefully specified in § 242(b) of the Act.
I would affirm the judgment of the Court of Appeals.
^1 Section 242(b) provides as follows:
'A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation. * * * No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that-
'(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
'(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
'(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and
'(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence. 'The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under thi section.'
^2 Section 252(b) provides as follows:
'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 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. 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 242 of this Act to cases falling within the provisions of this subsection.'