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Kwok v. Immigration and Naturalization Service

decided: August 4, 1967.

CHENG FAN KWOK, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. CHAN KWAN CHUNG, PETITIONER, V. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Staley, Chief Judge, and Kalodner and Smith, Circuit Judges.

Author: Staley

Opinion OF THE COURT

STALEY, Chief Judge.

These proceedings were commenced in this court to review decisions of the district director of the Immigration and Naturalization Service in Newark, New Jersey. The district director had denied petitioners' applications for stays of deportation pending disposition of their applications for adjustment of status pursuant to § 203(a) (7) of the Immigration and Nationality Act (hereinafter referred to as the "Act"), 8 U.S.C. § 1153(a) (7) (Supp. II, 1966).

The petitioner in No. 16027, Chan Kwan Chung, a citizen of China, entered the United States on March 29, 1964. As a crewman, he could remain in this country only as long as his vessel was in port but not in excess of 29 days. 8 U.S.C. § 1282(a). He remained longer than permitted, and deportation proceedings were commenced against him in July of 1964.*fn1 Chung apparently conceded his deportability but sought permission to depart voluntarily. His request was denied. No appeal was lodged with the Board of Immigration Appeals.

Chung was ordered to surrender for deportation to Hong Kong on July 7, 1966. On July 5, two days before he was to be deported, he filed an application for a stay of deportation with the district director in Newark. The reason asserted for the stay was to permit him time to submit an application for adjustment of status pursuant to a recent amendment to the Immigation and Nationality Act, § 203(a) (7). The district director denied the application, stating that under the published regulations of the Service, 8 C.F.R. § 245.4, adjustment of status under § 203(a) (7) is governed by § 245 and that crewmen are excluded from adjusting their status under § 245.

Two issues are presented by these petitions for review. The first is whether this court has jurisdiction to entertain the petitions, and the second is whether crewmen are eligible to adjust their status under § 203(a) (7). We deal first with the question of jurisdiction since a decision on this point adverse to the petitioners would render unnecessary a consideration of the merits of each petition.

Both the petitioners and the Immigration and Naturalization Service urge that this court has exclusive jurisdiction to review the district director's decisions. Our earlier decisions to the contrary in Lam Man Chi v. Bouchard, 314 F.2d 664 (C.A.3, 1963), and Scalzo v. Hurney, 314 F.2d 675 (C.A.3, 1963), should not be accorded any weight in light of our reliance on and the subsequent reversal of the Second Circuit case of Foti v. Immigration and Naturalization, 308 F.2d 779 (1962), rev'd, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963). The statute, § 106(a) of the Act, which confers jurisdiction on the courts of appeals to review orders of deportation and exclusion provides:

"The procedure prescribed by, and all the provisions of sections 1031-1042 of Title 5, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title [§ 242(b) of the Act] or comparable provisions of any prior Act * * *." 8 U.S.C. § 1105a(a).

The question before the Supreme Court in the Foti case was whether a denial of discretionary relief under § 244(a) (5) of the Act (suspension of deportation) was a "final order of deportation" within the meaning of § 106(a). Premising its conclusion on the legislative history of § 106(a) and its purpose, the Court held that the denial of § 244 (a) (5) relief was reviewable in the court of appeals. The Court said that the purpose of § 106(a) was to "abbreviate the process of judicial review" by creating "'a single, separate, statutory form of judicial review of administrative orders for the deportation of * * * aliens'". 375 U.S. at 224-225, 84 S. Ct. at 11 L. Ed. 2d 281. The Court also noted that Congressmen knowledgable in immigration matters had stated in debate that a final order of deportation should include ancillary determinations such as applications for discretionary relief which were made in the same proceeding. Finally, the Court concluded that bifurcation of judicial review -- review of the deportation order in the court of appeals and review of the denial of discretionary relief in the district court -- was wholly inimical to the purpose and legislative history of the statute.

Though the Supreme Court in Foti placed considerable reliance on the fact that applications for discretionary relief are traditionally tried in one and the same proceeding with the rule to show cause why the alien should not be deported, it admitted that in a large percentage of cases deportability is conceded and that the only question before the special inquiry officer is whether the application for discretionary relief should be granted. The Court also mentioned the other types of applications for discretionary relief, in addition to those under § 244(a) (5), which would be reviewable in the courts of appeals:

"* * * It seems rather clear that all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals, such as orders denying voluntary departure pursuant to § 244(e) and orders denying the withholding of deportation under § 243(h), are likewise included within the ambit of exclusive jurisdiction of the Courts of Appeals under § 106(a)." 375 U.S. at 229, 84 S. Ct. at 314.

The Court left open the question of whether the denial of a motion to reopen the deportation proceedings is reviewable by the court of appeals. It subsequently decided that question in the affirmative in a per curiam opinion. Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964), reversing 308 F.2d 347 (C.A.9, 1962).

Since Foti and Giova, there have been a number of decisions in the courts of appeals and the district courts dealing with the jurisdictional reach of § 106(a). The Seventh Circuit has adhered to its pre-Foti decisions of Blagaic v. Flagg, 304 F.2d 623 (C.A.7, 1962), and Roumeliotis v. Immigration and Naturalization Service, 304 F.2d 453 (C.A.7), cert. denied, 371 U.S. 921, 83 S. Ct. 288, 9 L. Ed. 2d 230 (1962), which hold that any administrative determination that involves the execution or suspension of the deportation order is ancillary to that order and is reviewable in the court of appeals. Melone v. INS, 355 F.2d 533 (C.A.7, 1966); Skiftos v. INS, 332 F.2d 203 (C.A.7, 1964). The Sixth Circuit also appears to have adopted that construction of the Act. Talavera v. Pederson, 334 F.2d 52 (C.A.6, 1964). The Seventh Circuit's position has, however, been rejected by the Fifth, Eighth ...


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