EDELSTEIN, District Judge.
The plaintiff, a Yugoslav seaman, seeks judicial review of the Attorney General's order denying his application for withholding of deportation under § 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1253(h).
Zupicich entered the United States on May 22, 1959, as a non-immigrant crewman, and was authorized to remain for the period of time that his vessel remained in port. By remaining beyond the permissible period he became deportable pursuant to § 241(a) (2) of the Act, 8 U.S.C.A. § 1251(a) (2), and on March 21, 1960, he was ordered deported. Plaintiff then applied for withholding of deportation to Yugoslavia under § 243(h) of the Act, upon the ground that he would be subjected to physical persecution upon his return there. The application to withhold deportation was heard before a Special Inquiry Officer, as authorized by the regulations, 8 C.F.R. § 243.3 (1958), who, on June 7, 1960, recommended that the application be denied. The Acting Regional Commissioner, the Attorney General's delegate, followed the recommendation, and on June 30, 1960, ordered that the plaintiff's application for withholding of deportation to Yugoslavia be denied. A motion to reconsider was denied on September 22, 1960.
Before considering plaintiff's claim that the Attorney General's discretion under § 243(h) was exercised in
The new statute, now § 106 of the Immigration and Nationality Act, 8 U.S. C.A. § 1105a, became effective on October 26, 1961. It prescribed for the first time a sole and exclusive statutory scheme for "judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under Section 1252(b) of this title * * *," i. e., § 242(b) of the Immigration and Nationality Act of 1952. The explicit aim of the section was to prevent protracted delays in the execution of deportation and exclusion orders which, in the opinion of Congress, had been caused by repetitive actions for judicial review of claimed improprieties in the proceedings.
Congress sought to remedy what it considered to be the undesirable practice of permitting aliens to utilize repetitive appeals for judicial intervention which served to delay execution of deportation orders. This was accomplished by shortening the statute of limitations for bringing a petition for review, by limiting the available remedies, and by having direct review of final orders in the Court of Appeals. Thus, under the new bill, an alien ordered deported must bring a "petition for review,"
With this legislative and historical background at hand, the court passes to the question presented: Is an order denying an application for withholding of deportation, entered pursuant to Section
While it is true that the Act aims to expedite the enforcement of immigration orders, the statutory language indicates quite clearly that the judicial review procedure is not to apply indiscriminately. Contrary to the plaintiff's position, the language indicates that the statute is to apply only to "final" orders entered in administrative proceedings conducted pursuant to § 242(b) of the Act, 8 U.S.C.A. § 1252(b), and not to the review of the Attorney General's opinion or judgment, as exercised under § 243(h).
However, the kind of determination involved in the question of whether or not deportation should be withheld under § 243(h) of the Act is different. Under § 243(h), the role of the Special Inquiry Officer does not involve adjudication, as it does under § 242(b). Under § 242(b), the final administrative determination as to deportability rests with the Special Inquiry Officer. The authority to withhold deportation under § 243(h), however, rests clearly with the Attorney General or his delegate, the Regional Commissioner. 8 C.F.R. 243.3 (1958); Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). Pursuant to the authority vested in him by § 103(a) of the Act, 8 U.S.C.A. § 1103(a), the Attorney General has prescribed regulations which have the force and effect of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 74 S.Ct. 499, 98 L.Ed. 681 (1954). Under the regulations for § 243(h) of the Act, if an alien requests a withholding of deportation on the ground that he would be physically persecuted if deported to the country designated by the Immigration and Naturalization Service, he is requested to appear before a Special Inquiry Officer for a hearing under oath. The Special Inquiry Officer then prepares his findings and forwards a recommendation to the Regional Commissioner. Thus, the role of the Special Inquiry Officer under § 243(h) is that of a fact finder and the hearing held by him is preliminary to the final decision on withholding of deportation. The decision to withhold deportation and, if so, for what period of time, rests finally not with the Special Inquiry Officer but with the Attorney General or his delegate, to be exercised by him according to his own judgment. His judgment and determination is based not only upon the special facts of each case elicited through the administrative proceedings, but also upon information and knowledge obtained through governmental channels as to the political conditions in a particular country. See Diminich v. Esperdy, 299 F.2d 244 (2d Cir. 1961); Blazina v. Bouchard, 286 F.2d 507 (3rd Cir. 1961); Batistic v. Pilliod, 286 F.2d 268 (7th Cir.
The legislative history of the statute confirms the interpretation that Congress did not contemplate including discretionary decisions of the Attorney General within the exclusive review procedure. The dominant theme recurring in the congressional debates, was that repeated judicial review of "deportation orders" allowed the "same subject matter" to be tested "over and over again,"
In expressing dissatisfaction with the frustration of immigration policy by the use of recurrent review the debates and committee reports discuss the problem solely with relation to "orders of deportation" and "final orders of deportation."
The tenor of the Committee Reports and the debates indicates a concern with a particular problem: — delay in the execution and enforcement of a final determination of deportability when such a determination is based on a record in an administrative hearing. There is no evidence in the legislative history that Congress, in enacting P.L. 87-301, § 106 of the Act, was motivated by a desire to shortcut the review of the Attorney General's discretion. And it is clear that Congress did not contemplate that the present action would no longer be cognizable in this court. The court therefore holds that an order denying the withholding of deportation pursuant to Section 243(h) of the Immigration and Nationality Act of 1952 is not "a final order of deportation made pursuant to administrative proceedings," and is, therefore, subject to review in the District Court.
Turning now to the issues raised by the denial of the application to withhold deportation under § 243(h) of the Act, the plaintiff contends that the Attorney General's failure to find that he would be subjected to physical persecution upon his return to Yugoslavia constituted an "improper exercise of executive
In recognition of the political nature of the Attorney General's decision as to conditions relating to physical persecution within a particular country, judicial review has been limited to the question of whether or not the Attorney General's discretion has been arbitrarily or capriciously exercised. Diminich v. Esperdy, supra; Blazina v. Bouchard, supra.
At the hearing before the Special Inquiry Officer, the applicant testified
The applicant himself testified that prior to coming to the United States he had never been harmed in Yugoslavia, although he had always attended church and had expressed his dislike of the Communist form of government in many conversations with his friends. The applicant conceded that acquaintances who either had escaped from Yugoslavia or had deserted their vessels had been punished upon their return by imprisonment for a year or two and were thereupon released. But punishment for illegally deserting a vessel is "a criminal sanction that is reconcilable with generally recognized concepts of justice," Blazina v. Bouchard, supra, 286 F.2d at 511; Diminich v. Esperdy, supra, 299 F.2d at 246, and prosecution resulting from such desertion is not "physical persecution" within the meaning of § 243(h) of the Immigration and Nationality Act. The applicant further admitted that his parents, brothers and sisters still lived in Yugoslavia, that they were employed and that none of them had been persecuted or had suffered at the hands of the Yugoslav government.
It is clear that the Attorney General's discretion was reasonably exercised since there is substantial evidence in the record to justify a conclusion that the applicant would not suffer physical persecution because of his attachment to his religion. While it may be reasonably inferred that the applicant might suffer "difficulties" or "hardships" upon his return, these "`difficulties' are not the `physical persecution' which Congress chose to make the sole factor warranting a stay of deportation, see 286 F.2d at 511 [Blazina v. Bouchard, supra], even if the Commissioner were required to credit [Zupicich's] assertions, as he was not." Diminich v. Esperdy, supra, 299 F.2d at 246. The applicant was given a full and fair opportunity to present the expert testimony of Dr. Mestrovic, and he testified at great length himself. There was no further testimony or evidence which Zupicich, or his counsel, sought to introduce. The applicant was afforded procedural due process, Shaughnessy v. Moon, supra, as the hearing was fairly conducted.
There being no genuine issue as to any material fact, defendant's motion for summary judgment is granted. Settle order on notice within ten (10) days.
"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."
For a detailed account of the legislative history, together with an extensive review of the problem of judicial review in immigration matters, see Comment, Deportation and Exclusion: A Continuing Dialogue Between Congress and the Courts, 71 Yale L.J. 760 (1962). See also H.R.Rep. No. 565, 87th Cong., 1st Sess. (1961), containing full report on Public Law 87-301; Hearings on H.R. 13311 before Subcommittee No. 1 of the House Committee on the Judiciary, 85 Cong., 2nd Sess. (1958) (a predecessor of the bill.) For the debates, see 107 Cong.Rec. 1138 (Daily ed., July 10, 1961); 107 Cong.Rec. 18462-70 (Daily ed. Sept. 15, 1961). For debates on a predecessor bill, see 105 Cong.Rec. 12723-12729 (1959).
The new regulations attempt to make the adjudication of § 243(h) applications part of the administrative proceedings conducted before the Special Inquiry Officer and attempt to make the order granting or denying withholding of deportation part of the final order of deportation. Whether this will result in review of § 243(h) applications directly in the Court of Appeals, as seems to be the intent of the new regulations, is a question the resolution of which must await an appropriate case. In Blagaic v. Flagg, 304 F.2d 623, the Seventh Circuit reached a result contrary to that reached here. The case there also arose under the regulations in force before January 1962. The Court held that a § 243 (h) application was reviewable initially in the Court of Appeals. See also Roumeliotis v. Immigration and Naturalization Service, 304 F.2d 453 (7th Cir.) (visa petition). In Giova v. Rosenberg, 308 F.2d 347, Ninth Circuit, 1962, however, the Ninth Circuit dismissed an appeal brought under the new statute to review a denial of a motion to reopen a deportation proceeding. And in Mai Kai Fong v. Immigration and Naturalization Service, 305 F.2d 239, Ninth Circuit, 1962, the same Court found that it had no jurisdiction under the new statute to review a notice that the alien would be deported to Hong Kong. The Court held that the notice was at best an order pursuant to § 243 of the Act. Thus, the Ninth Circuit indicated a strict construction of P.L. 87-301 which would not enlarge the matters to be reviewed initially in the Court of Appeals beyond "final orders of deportation." I am in accord with the view of the Ninth Circuit as it applies to cases arising under the regulations in force prior to January 1962.
See also Radic v. Fullilove, 198 F.Supp. 162 (N.D.Cal.1961), where the district court held that the refusal on the part of the hearing officer to permit the alien to inspect documents in a "secret" file, so that the alien could rebut, impeach or cross examine the contents, without a finding that such disclosure would prejudice the security interests of the United States, was violative of due process.