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IMMIGRATION AND NATURALIZATION SERVICE v. STANISIC

decided: May 19, 1969.

IMMIGRATION AND NATURALIZATION SERVICE
v.
STANISIC



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall

Author: Harlan

[ 395 U.S. Page 64]

 MR. JUSTICE HARLAN delivered the opinion of the Court.

This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals sustained the respondent crewman's contention that he must be heard by a special inquiry officer*fn1 in a proceeding conducted under § 242 (b) of the Immigration and Nationality Act.*fn2 Petitioner, the

[ 395 U.S. Page 65]

     Immigration and Naturalization Service, argues that respondent's claim was properly heard and determined by a district director.*fn3 We brought the case here, 393 U.S. 912 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in Kordic v. Esperdy, 386 F.2d 232 (1967).

I.

Respondent, a national of Yugoslavia, was a crewman aboard the Yugoslav vessel, M/V Sumadija, when it docked at Coos Bay, Oregon, in late December 1964. He requested and was issued a "D-1" conditional landing permit, in accordance with 8 CFR § 252.1 (d)(1) and § 252 (a)(1) of the Immigration and Nationality Act.*fn4 Under these provisions, the Service may allow a nonimmigrant alien crewman temporary shore leave for

"the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is

[ 395 U.S. Page 66]

     satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived." Ibid.

On January 6, 1965, while on shore leave, respondent appeared at the Portland, Oregon, office of the Immigration and Naturalization Service. He claimed that he feared persecution upon return to Yugoslavia, and he flatly stated that he would not return to the M/V Sumadija. On the basis of the latter statement, and in accordance with § 252 (b) of the Act, the District Director revoked respondent's landing permit. Section 252 (b) provides:

"Any immigration officer may, in his discretion, if he determines that an alien . . . 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

[ 395 U.S. Page 67]

     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. . . . Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to [sic] cases falling within the provisions of this subsection."

Section 252 (b) makes no express exception for an alien whose deportation would subject him to persecution. However, § 243 (h) permits the Attorney General to withhold the deportation of any alien to a country in which he would be subject to persecution, and analogously, 8 CFR § 253.1 (e) then provided:*fn5

"Any alien crewman . . . whose conditional landing permit issued under § 252.1 (d)(1) of this chapter is revoked who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution in that country on account of race, religion, or political opinion may be paroled into the United States . . . for the period of time and under the conditions set by the district director having jurisdiction over the area where the alien crewman is located."

Thus, although respondent was admittedly deportable under the terms of § 252 (b), he was not immediately returned to his vessel. On January 7, he was offered the opportunity to present evidence to the District Director in support of his claim of persecution.

Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard

[ 395 U.S. Page 68]

     by a special inquiry officer in accordance with the general provisions of § 242 (b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.

Respondent immediately sought relief in the United States District Court for the District of Oregon,*fn6 which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent's claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent "has [not] shown that he would be physically persecuted if he were to return to Yugoslavia." Appendix 22.

On respondent's supplemental pleadings, the District Court held that the District Director's findings were supported by the record. The court rejected respondent's claim that he was entitled to a § 242 (b) hearing before a special inquiry officer, relying on the last sentence of § 252 (b), which provides: "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." Vucinic [and Stanisic] v. Immigration Service, 243 F.Supp. 113 (1965).

Respondent did not appeal the District Court's decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent's effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia.

[ 395 U.S. Page 69]

     The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to § 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.

The Court of Appeals for the Ninth Circuit reversed, Stanisic v. Immigration Service, 393 F.2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director's adverse determination in 1965, and the District Court's unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port;*fn7 but now the ship had long since sailed, and respondent still had not been deported. The court held that § 252 (b) only authorized respondent's "summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before . . . [his] vessel departed." 393 F.2d, at 542-543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director's 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under § 242 (b) of the Act.

II.

At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable ...


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