Zalmai Sayyad Ameeriar and Ayesha Zalmai Ameeriar v. Immigration and Naturalization Service

FREEDMAN, Circuit Judge (dissenting).

I believe the Attorney General’s sub-delegation of the discretion conferred on him by 8 U.S.C. § 1255 is invalid because he failed to designate any policy objectives or standards, or even relevant factors to guide those he authorized to act in his name.

There is a critical difference between § 1255 which authorizes the Attorney General to grant adjustment of status as a permanent resident to an alien who has been admitted to this country, and § 1254 which authorizes him in his discretion to suspend deportation and grant adjustment of status to an alien ordered to be deported. This difference explains why Jay v. Boyd, 351 U.S. 345 , 76 S.Ct. 919 , 100 L.Ed. 1242 (1956), which upheld the Attorney General’s delegation of his discretion under § 1254, is inapplicable to the delegation of his discretion in this case under § 1255. Similarly distinguishable is United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 , 77 S.Ct. 618 , 1 L.Ed.2d 652 (1957), which held that the Attorney General could look for guidance in exercising his discretion to what is now § 1254. Indeed, the difference between the two sections renders fully applicable to § 1255 the criticism which Mr. Justice Frankfurter unsuccessfully pressed in Jay v. Boyd. 1

Let me sketch the differences between the two sections. In order to qualify under § 1254 for the discretionary suspension of deportation which was involved in Jay v. Boyd, the applicant must prove that his deportation would result in “extreme hardship” and in some cases in “exceptional and extremely unusual hardship” to him, or to his spouse, parents or child who is a citizen of the United States or an alien lawfully admitted for permanent residence. Section 1254 thus prescribes both the criterion of hardship and the extent to which the Attorney General must be persuaded of its existence. It also contains a singularly impressive check on the Attorney General’s exercise of discretion in favor of the alien. The Attorney General must report monthly to each House of Congress all individual suspensions of deportation and the facts and the law which prompted his grant of discretionary relief. Either House may, in most cases, veto any suspension, and in the remaining cases, which deal with those deport-able for morally or politically evil conduct, both Houses must affirmatively ap *1042 prove the Attorney General’s grant of relief. 2 See United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 78-79 , 77 S.Ct. 618 , 1 L.Ed.2d 652 (1957).

All this is utterly unlike § 1255, which merely provides that the Attorney General shall exercise his discretion on an application by an eligible alien for an adjustment of status. No basis whatever is prescribed for the Attorney General’s exercise of discretion; the statute simply declares that he is to act “in his discretion and under such regulations as he may prescribe.” (§ 1255(a)) In subdelegating his authority to the Board of Immigration Appeals, the Attorney General has provided as the only guidance that “in considering and determining cases before it * * * the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case.” 3

It is this lack of any express or implicit specification of policy objectives or standards or even relevant factors, either in § 1255 or in the regulations promulgated by the Attorney General, which makes the exercise of discretion by his delegates an utterly unguided and unpredictable undertaking. Only the inevitable necessity of disposing of the case is specified, like a result without a cause. What is the desired goal and what guides should channel the course to it receive no recognition. Nor is this an instance in which a general problem is assigned to an official or agency and discretion vested in it in order to obtain an expert solution and judgment.

Section 1255 was written with Congressional knowledge that the Attorney General personally would not decide applications for adjustment of status but would delegate his authority to subordinate officials. Congress was aware that the Attorney General had established a quasi-judicial 'system for processing applications seeking the discretionary relief he was authorized to grant under the Immigration and Nationality Act. It specifically provided in 8 U.S.C. § 1103 for his subdelegation of the duties and powers imposed upon him in cases such as this. Prior to the enactment of § 1255, the Attorney General had promulgated the regulation delegating all such functions to the Board of Immigration Appeals. 4 Indeed, by the time of the 1960 amendment, it was well known that § 1255 applications were far too numerous for the Attorney General to determine them personally. 5 Thus, an impersonal procedural structure has been erected with the knowledge of Congress, but no proper authority has prescribed the goals sought to be achieved, the factors to be considered or the weight to be assigned them, or the burden which the applicant must carry, as a guide or direction to those charged with administering § 1255 or to the courts which are called upon to review their action.

What has happened here shows the result of such a wide-open system. The Board has held, and the majority agrees, that the refusal of adjustment of status is justified because the aliens intended to remain here. Judge Gibbons concludes that there was an abuse of discretion because the denial of adjustment of status was based on this factor which in his view could no longer be deemed significant in the exercise of discretion after Congress removed it as an absolute *1043 bar. 6 If Judge Gibbons’ view had prevailed, at least one element would now have been established, although only as a non-factor.

It is true that other courts of appeal have upheld the exercise of discretion under § 1255. 7 I would not follow these cases because they do not recognize the distinction between § 1255 and § 1254.

I therefore would vacate the order of the Board of Immigration Appeals denying adjustment of status to the appellants and would remand the case to the Board to hear their application after the provision of reasonable standards by the Attorney General.

Judge ALDISERT also joins in this dissenting opinion.

. “If the Attorney General’s conscience is satisfied to act on considerations that he does not desire to expose to the light of day or to- impart to an alien whose liberty may be at stake, thereby involving the fate of an innocent family, Congress leaves him free to do so. But Congress has not seen fit to invest his subordinates with such arbitrary authority over the lives of men.

“ * * * But, if in his wisdom the Attorney General devises a system for delegating the means for carrying out the responsibility for which Congress has given discretion, he cannot also delegate his discretion. * * *

“ * * * The Attorney General may act on confidential information and Congress has left him to square it with his conscience. But he cannot shelter himself behind the appearance of legal procedure — a system of administrative law —and yet infuse it with a denial of what is basic to such a system.” 351 U.S. at 371-372 , 76 S.Ct. at 934 .

. 8 U.S.C. § 1255 (c). There is a similar provision in 8 U.S.C. § 1255b pertaining . essentially to diplomatic personnel and limited to no more than fifty applicants annually.

. 8 C.F.R. § 3.1 (d) (1) provides:

“Powers of the Board. (1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case.”

. 8 C.F.R. § 3.1 (d) (1), quoted supra, n. 3.

. The legislative history of the 1960 amendment shows that over 20,000 applications for adjustment of status under § 1255 were approved annually.

. Act of July 14, 1960, P.L. 86-648, § 10, 74 Stat. 606 , amending § 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 , by eliminating admission to the United States “as a bona fide nonimmi-grant” as an eligiblity requirement to adjustment of status.

. E. g., Jarecha v. I. N. S., 417 F.2d 220 (5 Cir. 1969) ; Chen v. Foley, 385 F.2d 929 (6 Cir.), cert. denied 393 U.S. 838 , 89 S.Ct. 115 , 21 L.Ed.2d 109 (1967) ; Santos v. I. N. S., 375 F.2d 262 (9 Cir. 1967) ; Castillo v. I. N. S., 350 F.2d 1 (9 Cir. 1965). See also Annot., Construction and Application of § 245 of the Immigration and Nationality Act of 1952 ( 8 U.S.C. § 1255 ) Authorizing Adjustment of Status of Alien to that of Permanent Resident, 4 A.L.R.Fed. 557 (1970).