MR. JUSTICE HARLAN delivered the opinion of the Court.
The narrow question presented by this case is whether jurisdiction to review the denial of a stay of deportation, if the pertinent order has not been entered in the course of a proceeding conducted under § 242 (b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U. S. C. § 1252 (b), is, under § 106 (a) of the Act, 75 Stat. 651, 8 U. S. C. § 1105a (a), vested exclusively in the courts of
Petitioner, a native and citizen of China, evidently entered the United States in 1965 as a seaman.
Petitioner thereupon commenced these proceedings in the Court of Appeals for the Third Circuit, petitioning for review of the denial of a stay. The Court of Appeals held that the provisions of § 106 (a), under which it would otherwise have exclusive jurisdiction to review the district director's order, are inapplicable to orders denying ancillary relief unless those orders either are entered in the course of a proceeding conducted under § 242 (b), or are denials of motions to reopen such proceedings. The court dismissed the petition for want of jurisdiction. 381 F.2d 542. We granted certiorari because the courts of appeals have disagreed as to the proper construction of the pertinent statutory provisions.
It is useful first to summarize the relevant provisions of the Immigration and Nationality Act and of the regulations promulgated under the Act's authority. Section
Other forms of discretionary relief may be requested after termination of the deportation proceeding. The regulations thus provide that an alien "under a final administrative order of deportation" may apply to the district director "having jurisdiction over the place where the alien is at the time of filing" for a stay of deportation. 8 CFR § 243.4. The stay may be granted by the district director "in his discretion." Ibid. If the stay is denied, the denial "is not appealable" to the Board of Immigration Appeals. Ibid.
Section 106 (a)
The positions of the various parties may be summarized as follows. We are urged by both petitioner and the Immigration Service to hold that the provisions of § 106 (a) are applicable to the circumstances presented by this case, and that judicial review thus is available only in the courts of appeals. The Immigration Service contends that § 106 (a) should be understood to embrace all determinations "directly affecting the execution of the basic deportation order," whether those determinations have been reached prior to, during, or subsequent to the deportation proceeding.
This is the third case in which we have had occasion to examine the effect of § 106 (a). In the first, Foti v. Immigration Service, 375 U.S. 217, the petitioner, in the course of a proceeding conducted under § 242 (b), conceded his deportability but requested a suspension of deportation under § 244 (a) (5). The special inquiry officer denied such a suspension, and petitioner's appeal from the
In the second case, Giova v. Rosenberg, 379 U.S. 18, petitioner moved before the Board of Immigration Appeals to reopen proceedings, previously conducted under § 242 (b), that had terminated in an order for his deportation. The Board denied relief. The Court of Appeals for the Ninth Circuit concluded that the Board's denial was not embraced by § 106 (a), and dismissed the petition for want of jurisdiction. 308 F.2d 347. On certiorari, this Court held, in a brief per curiam opinion, that such orders were within the exclusive jurisdiction of the courts of appeals.
Although Foti strongly suggests the result that we reach today, neither it nor Giova can properly be regarded as controlling in this situation. Unlike the order in Foti, the order in this case was not entered in the course of a proceeding conducted by a special inquiry officer under § 242 (b); unlike the order in Giova, the order here did not deny a motion to reopen such a proceeding. We regard the issue of statutory construction involved here as markedly closer than the questions presented
It is important, first, to emphasize the character of the statute with which we are concerned. Section 106 (a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. Utah Junk Co. v. Porter, 328 U.S. 39, 44. Further, as a statute addressed entirely to "specialists," it must, as Mr. Justice Frankfurter observed, "be read by judges with the minds of . . . specialists."
We cannot, upon close reading, easily reconcile the position urged by the Immigration Service with the terms of § 106 (a). A denial by a district director of a stay of deportation is not literally a "final order of deportation," nor is it, as was the order in Foti, entered in the course of administrative proceedings conducted under § 242 (b).
The legislative history of § 106 (a) does not strengthen the position of the Immigration Service. The "basic purpose" of the procedural portions of the 1961 legislation was, as we stated in Foti, evidently "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts . . . ." 375 U. S., at 226. Congress prescribed for this purpose several procedural innovations, among them the device of direct petitions for review to the courts of appeals. Although, as the Immigration Service has emphasized, the broad purposes of the legislation might have been expected to encompass orders denying discretionary relief entered outside § 242 (b) proceedings, there is evidence that Congress deliberately restricted the application of § 106 (a) to orders made in the course of proceedings conducted under § 242 (b).
Thus, during a colloquy on the floor of the House of Representatives, to which we referred in Foti,
We believe that, in combination with the terms of § 106 (a) itself, these statements lead to the inference that Congress quite deliberately restricted the application of § 106 (a) to orders entered during proceedings conducted under § 242 (b), or directly challenging deportation orders themselves.
We need not speculate as to Congress' purposes. Quite possibly, as Judge Browning has persuasively suggested, "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review. . . ." Yamada v. Immigration & Naturalization Service, 384 F.2d 214, 218. It may therefore be that Congress expected the Immigration Service to include within the § 242 (b) proceeding "all issues which might affect deportation." Ibid. Possibly, as amicus cogently urges, Congress wished to limit petitions to the courts of
This result is entirely consistent with our opinion in Foti. There, is was repeatedly stated in the opinion of THE CHIEF JUSTICE that the order held reviewable under § 106 (a) had, as the regulations required, been entered in the course of a proceeding conducted under § 242 (b). 375 U. S., at 218, 222-223, 224, 226, 228, 229, 232. It was emphasized that "the administrative discretion to grant a suspension of deportation," the determination involved in Foti, "has historically been consistently exercised as an integral part of the proceedings which have led to the issuance of a final deportation order." Id., at 223. A suspension of deportation "must be requested prior to or during the deportation hearing." Ibid. Moreover, it was explicitly recognized that, although modification of the pertinent regulations might "effectively broaden or narrow the scope of review available in the Courts of Appeals," this was "nothing anomalous."
The per curiam opinion in Giova did not take a wider view of § 106 (a). The denial of an application to reopen a deportation proceeding is readily distinguishable from a denial of a stay of deportation, in which there is no attack upon the deportation order or upon the proceeding in which it was entered. Petitions to reopen, like motions for rehearing or reconsideration, are, as the Immigration Service urged in Foti, "intimately and immediately associated" with the final orders they seek to challenge.
The result we reach today will doubtless mean that, on occasion, the review of denials of discretionary relief will be conducted separately from the review of an order of deportation involving the same alien. Nonetheless, this does not seem an onerous burden, nor is it one that cannot be avoided, at least in large part, by appropriate action of the Immigration Service itself. More important,
MR. JUSTICE WHITE, dissenting.
If the special inquiry officer had possessed jurisdiction to issue a stay order pending petitioner's efforts to obtain discretionary relief from the District Director, I take it that his denial of the stay, like a refusal to re-open, would have been appealable to the Court of Appeals. But, as I understand it, no stay could have been granted by the hearing officer and it was sought from the District Director as an immediate consequence of there being outstanding a final order of deportation, which, if executed, might moot the underlying request for relief from the District Director. Section 106 does not limit judicial review in the Court of Appeals to orders entered "in the course of" § 242 (b) proceedings, but extends it to all orders against aliens entered "pursuant" to such proceedings, that is, at least as Webster would have it,
"1. Acting or done in consequence or in prosecution (of anything); hence, agreeable; conformable; following; according . . . .
"2. That is in pursuit or pursuing . . . ."