Opposition Brief — Kashani v. Nelson

Supreme Court, U.S,

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OCTOBER TERM, 1986

HAMID R. KASHANI, PETITIONER

v.

ALAN C. NELSON, COMMISSIONER OF THE

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

ROBERT KENDALL, JR.

MARY REED

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTION P®! SENTED

Whether a deportable alien, before seeking judicial

review of an administrative denial of his asylum

claim, must first exhaust his administrative remedies

by renewing that claim in deportation proceedings.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Cardoza-Fonseca Vv. INS, 767 F.2d 1448, cert.

granted, No. 85-782 (Feb. 24, 1986) —.............. 5

Cheng Fan Kwok v. INS, 392 U.S. 206 .................... 4,5,6

Fieurtnor ¥. INS, 685 F.2d 129 ................................ 8

Haitian Refugee Center v. Smith, 676 F.2d 1023.....8, 9, 10

ieee 4. Games, Gee U.. OND ..........-......................... 11

EE SE 5 ee 4,5

Jean V. Nelson, 727 F.2d 957, aff’d, No. 84-5240

RUE TIES ER 9

Medina V. Castillo, 627 F.2d 972 .....00.......ee cee 8

Salehi v. District Director, INS, 796 F.2d 1286........ 6

Stanisic v. INS, 393 F.2d 539, aff’d, 395 U.S. 62...... 4,5,7

Wisniewski v. United States, 353 U.S. 901 -............. 10

Yiu Sing Chun v. Sava, 550 F. Supp. 90, rev’d, 708

EE A ee 4,6, 7

Statutes and regulations:

Immigration and Nationality Act, 8 U.S.C. (&

Supp. II) 1101 et seq.:

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S 258(a) (6), 8 U.S.C. 1182 (d) (6)............._....... 5

= 241 (a) (2), 8 U.S.C. 1251 (a) (2) ..................... 2

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IV

Statutes and regulations—Continued :

$361 (a) (9), 8 U.S.C. 1001 (a) (9) .....................

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Immigration Reform and Control Act of 1986, Pub.

L. No. 99-603 § 201, (Nov. 6, 1986) (reprinted

in 132 Cong. Rec. H10076 (daily ed. Oct. 14,

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Refugee Act of 1980, Pub. L. No. 96-212, § 201(b),

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8 C.F.R.:

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Miscellaneous:

T. Aleinikoff & D. Martin, Immigration Process

EE rire cca octane

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-405

HAMID R. KASHANI, PETITIONER

VU.

ALAN C. NELSON, COMMISSIONER OF THE

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

20a) is reported at 793 F.2d 818. The order of the

district court dismissing petitioner’s complaint (Pet.

App. 21a-23a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on June 12, 1986. The petition for a writ of certi-

orari was filed on September 10, 1986. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

Petitioner entered the United States on January

4, 1976, on a nonimmigrant student visa (F-1) au-

thorizing him to study at Purdue University. Peti-

tioner’s authorized stay in the United States ended

on July 10, 1982, but petitioner remained in this

country unlawfully." On October 14, 1982, petitioner

filed an application for asylum with a district direc-

tor of the Immigration and Naturalization Service

(INS), as permitted by 8 C.F.R. 208.3(a)(2). The

application was denied on October 20, 1983, because

petitioner did not establish a well-founded fear of

persecution under the provisions of 8 U.S.C. 1158.

In lieu of instituting deportation proceedings, the

district director, pursuant to 8 C.F.R. 208.8(f) (4),

granted petitioner the privilege of voluntary depar-

ture from the United States by November 20, 1983.

Pet. App. la-3a.

Petitioner did not voluntarily depart from the

United States by November 20, 1983. Instead, on

1 One who enters the United States on a student visa and

then stays beyond the time authorized is “in the United

States in violation of [the Immigration and Nationality] Act”

(8 U.S.C. 1251 (a) (2)), would commonly be referred to as an

“illegal alien,” and is deportable under both 8 U.S.C. 1251

(a) (2) and 8 U.S.C. 1251(a) (9). See, e.g., T. Aleinikoff

& D. Martin, Immigration Process and Policy 376 & n.30

(1985). Petitioner therefore errs in suggesting that he was

lawfully in this country until the district director declared

otherwise (Pet. 15).

We note that petitioner’s unlawful presence in this country

began after January 1, 1982. Petitioner therefore is not eli-

gible for legalization of his status under Section 245A (a) (2)

(A) and (B) of the Immigration and Nationality Act, added

by Section 201 of the Immigration Reform and Control Act

of 1986, Pub. L. No. 99-603 (Nov. 6, 1986) (reprinted in 132

Cong. Rec. H10076 (daily ed. Oct. 14, 1986) ).

3

that date, he filed an action in the district court

seeking injunctive relief against INS’s commencing

deportation proceedings, and for judicial review of

the district director’s denial of his asylum claim.

The complaint alleged that the district director

abused her discretion by failing to- consider the rele-

vant evidence submitted in support of his asylum

claim. On September 11, 1984, the district court dis-

missed the complaint, holding that an applicant for

asylum must renew his request for asylum in depor-

tation or exclusion proceedings before seeking judi-

cial review, which lies in court of appeals under

8 U.S.C. 1105a (Pet. App. 28a).

On September 24, 1984, the district director issued

an order to show cause why petitioner should not be

deported. On November 9, 1984, petitioner appealed

the district court’s order.

The court of appeals affirmed. After an exhaus-

tive review of the statutory scheme, it concluded that

Congress did not intend to permit judicial review

before a deportable alien exhausted his administra-

tive remedies by renewing his asylum application in

deportation proceedings (Pet. App. 17a).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

any other court of appeals. Review by this Court is

therefore not warranted.

1. The Refugee Act of 1980, Pub. L. No. 96-212,

§ 201(b), 94 Stat. 105, added a new Section 208,

8 U.S.C. 1158, to the Immigration and Nation-

ality Act of 1952 (the Act). Section 208(a) directs

the Attorney General to “establish a procedure for

an alien physically present in the United States or

4

at a land border or port of entry, irrespective of

such alien’s status, to apply for asylum.” ”

The asylum procedure established by the Attorney

General is contained in 8 C.F.R. Pt. 208 and is

correctly summarized in Yiu Sing Chun v. Sava, 708

F.2d 869, 873 (2d Cir. 1983) (footnotes omitted) :

“There are five steps in the asylum procedure: prep-

aration and filing of the application for asylum, ex-

amination in person by an immigration officer or

judge, an advisory opinion from BHRHA [the State

Department’s Bureau of Human Rights and Human-

itarian Affairs], a written decision of the District

Director, which may not be appealed, and renewal

of the denied asylum request before an immigration

judge in exclusion or deportation proceedings.”

Petitioner contends that he may secure judicial

review of a denial of asylum after the first four

steps of this procedure, without undergoing the fifth

step. No decision of any court supports that result.

2. Petitioner seeks support for his argument in

this Court’s decisions in Cheng Fan Kwok v. INS,

392 U.S. 206 (1968), and INS. v. Stanisic, 395 U.S.

62 (1969) (Pet. 3-7). Neither case, however, in-

volved an application for asylum under the Section

208 procedures, and neither case involved any ques-

tion at all of exhaustion of administrative remedies.

In Cheng Fan Kwok, the Court held that the district

* Section 208(a) goes on to state that “an alien may be

granted asylum in the discretion of the Attorney General if

the Attorney General determines that such alien is a refugee

within the meaning of section 1101 (a) (42) (A) of this title.”

Petitioner is therefore quite wrong to assert that “refugee

status * * * has nothing to do with an asylum application

which is decided under the INA § 208(a), 8 U.S.C. § 1158

(a)” (Pet. 7). See also INS v. Stevic, 467 U.S. 407, 423 n.18

(1984).

5

court rather than the court of appeals had initial

jurisdiction to review a district director’s denial of

a stay of deportation after deportation proceedings

had been concluded. There was no contention in the

case that the denial of the stay of deportation was

unreviewable because of a failure to exhaust admin-

istrative remedies; the only jurisdictional dispute

was whether the district court or court of appeals

should hear the case in the first instance.

In Stanisic, there was again no assertion that the

alien, who had been denied “asylum” * by the district

director, had failed to exhaust his administrative

remedies. Indeed, the issue in the case was whether,

under statutes and regulations then in effect, the

alien was entitled to an administrative remedy that

he had sought and had been denied. Petitioner, by

contrast, has not sought the administrative remedy

of a grant of asylum by the immigration judge in

deportation proceedings, an administrative remedy

that is indisputably available to him (8 C.F.R. 208.9).

The Court’s statement in Stanisic that the district

court had jurisdiction (395 U.S. at 68 n.6), like

the holding in Cheng Fan Kwok, indicates only which

of two possible courts had initial jurisdiction over

a controversy that everyone agreed was justiciable.

It has nothing whatsoever to do with petitioner’s

’ What the Court termed “political asylum” in Stanisic

(395 U.S. at 70) was in fact relief from deportation under

either Section 212(d) (5) of the Act, 8 U.S.C. 1182(d) (5),

or Section 243(h) of the Act, 8 U.S.C. 1253(h) (395 U.S.

at 70). What is now called “asylum,” and specifically so

labeled in 8 U.S.C. 1158, is a different (and greater) form

of relief, obtained through the procedures established after

passage of the Refugee Act of 1980. See generally JNS v.

Stevic, supra; Cardoza-Fonseca Vv. INS, 767 F.2d 1448 (9th

Cir. 1985), cert. granted, No. 85-782 (Feb. 24, 1986).

6

claim that his asylum request is justiciable in ad-

vance of his exhaustion of administrative remedies.

2 Petitioner also claims that the decision below

conflicts with decisions of several other circuits (Pet.

8-13). Each ease on which petitioner relies is en-

tirely consistent with the decision below.

In Salehi v. District Director, INS, 796 F.2d 1286

(10th Cir. 1986), the issue yet again was which of

two courts had initial jurisdiction over the contro-

versy, and not whether the aliens had exhausted nec-

essary administrative remedies. Unlike petitioner,

the aliens in Salehi had long since concluded deporta-

tion proceedings (796 F.2d at 1287), and, as in

Cheng Fan Kwok, they sought relief from actions of

the district director taken after a deportation order

was entered. The decision says nothing about the

ability of a deportable alien to seek judicial review

of a district director’s denial of asylum before un-

dergoing deportation proceedings.

In Yiu Sing Chun v. Sava, supra, the aliens’ asy-

lum applications were denied by district directors,

and they sought an exclusion hearing before an im-

migration judge, so as to renew their applications

under 8 C.F.R. 208.9. INS denied their request for

an exclusion hearing notwithstanding 8 C.F.R. 208.9

on the ground that, as stowaways, they were denied

the right to such a hearing by 8 U.S.C. 1823(d).

When the aliens sought habeas corpus in the district

court, the government obviously could not and did

not contend that the aliens had failed to exhaust the

administrative remedy of renewing their applications

before an immigration judge, for the government con-

tended that they had no such remedy. The district

court, agreeing with the government, proceeded to

7

review the district directors’ decisions on the merits.‘

The court of appeals, holding that the aliens were en-

titled to an exclusion hearing at which they could

renew their asylum claims (708 F.2d at 874-875), re-

manded for further administrative proceedings (id.

at 877). Because it held that the aliens had a right

to renew their applications before an immigration

judge, the court explicitly declined to resolve “the

substantive question whether petitioners are in fact

entitled to be treated as asylees” (id. at 876). The

decision, therefore, is precisely in line with the hold-

ing in this case that a court should await the immi-

gration judge’s decision before reviewing a denial

of asylum on the merits.

Stanisic v. INS, 393 F.2d 539 (9th Cir. 1968), as

explained above in the discussion of INS v. Stanisic,

395 U.S. 62 (1969), did not involve an application

* The district court, in a holding that was neither endorsed

nor rejected by the court of appeals, disagreed with the gov-

ernment’s argument that it lacked jurisdiction to review the

district directors’ claims on the merits. The government’s

argument was not, however, that the aliens had failed to

exhaust administrative remedies. See Yiu Sing Chun v. Sava,

550 F. Supp. 90, 92-93 (E.D.N.Y. 1982). The district court’s

decision therefore provides no support for petitioner’s asser-

tion that a court may review the merits of an asylum deter-

mination before the alien exhausts his administrative rem-

edies. In addition, the district court’s assertion of jurisdic-

tion was based on the theory that the aliens in that case were

entitled to seek habeas corpus under Section 106(b) of the

act, 8 U.S.C. 1105a(b). 550 F. Supp. at 93. Section 106 (b)

applies only to aliens who are being excluded from the coun-

try before entry, not to aliens like petitioner who are subject

to deportation from the country after entry. Accordingly,

whatever the merits of the district court’s theory, it rested

on a statutory basis that does not apply to petitioner.

8

for asylum under the Section 208 procedures, which

did not then exist. It also did not involve any con-

tention that the alien had failed to exhaust his ad-

ministrative remedies.

The next three cases on which petitioner reties

were all challenges to denials of asylum under the

pre-Refugee Act regulations found in 8 C.F.R. Pt.

108 (1980). See Medina v. Castillo, 627 F.2d 972,

973 nn.l & 2 (9th Cir. 1980); Fleurinor v. INS,

585 F.2d 129, 134 (5th Cir. 1978); Haitian Refugee

Center v. Smith, 676 F.2d 1028, 1026 n.1, 1027 n.6

(5th Cir. 1982). Under those regulations, an alien

could seek asylum only from the district director and

could not renew his application in deportation or ex-

clusion proceedings. The alien did, however, have a

right to seek withholding of deportation under Sec-

tion 243(h) of the Act, 8 U.S.C. 1253(h), in a sub-

sequent deportation proceeding notwithstanding

prior rejection of his asylum claim by a district

director (see INS vy. Stevic, 467 U.S. at 420-421).

In Medina and Fleurinor, the government did not

argue that the right to seek withholding of deporta-

tion (a lesser benefit than asylum) in his deportation

proceeding meant that the alien must undergo that

proceeding before seeking judicial review. The courts

accordingly found direct judicial review of a district

director’s asylum determination to be proper. In

Haitian Refugee Center, the government did argue

that the aliens were required to exhaust their ad-

ministrative remedy by seeking withholding before

they could obtain judicial review of asylum claims,

and the court, for purposes of its decision, agreed:

“When the correctness of an asylum denial is at

issue, * * * the policy of securing more complete de-

velopment of the factual record is advanced by re-

9

quiring the alien to seek withholding * * *” (676

F.2d at 1036). The court distinguished that prin-

ciple, however, by noting that in that case “the

[aliens] [we]re testing only the legality of the proce-

dures used” (ibid.). Although the aliens had admin-

istrative remedies available insofar as they sought a

determination on the merits that they had a well-

founded fear of persecution, they had no administra-

tive procedures to exhaust insofar as they challenged

the procedure used by the district director (ibid.)

That holding of Haitian Refugee Center, of course,

is of no assistance to petitioner, who seeks to chal-

lenge his denial of asylum on the merits.

If, as the government contended and the court sug-

gested in Haitian Refugee Center, an alien seeking

review on the merits was required to undergo de-

portation proceedings before seeking judicial review,

it follows a fortiori that exhaustion is required under

the present regulatory scheme, which explicitly al-

lows an alien to renew his asylum claim in deporta-

tion proceedings (8 C.F.R. 208.9). If, as suggested

by Medina and Fleurinor, review of an asylum deter-

mination on the merits could be obtained in advance

of a deportation proceeding, it was because then—

unlike now—an alien could not seek in the deporta-

tion proceeding the same benefit, asylum, that he

could seek from the district director. No matter what

the correct exhaustion rule was under the pre-

Refugee Act regulations, these cases provide no sup-

port for petitioner’s contention that exhaustion is not

required under the current regulations.

Finally, in Jean v. Nelson, 727 F.2d 957 (11th Cir.

1984) (en banc), aff’d-on other grounds, No. 84-5240

(June 26, 1985), there was no challenge to the merits

of any asylum determination. The court did nothing

10

more than follow Haitian Refugee Center in holding

that “the existence of unexhausted administrative

remedies * * * applicable to an alien’s opportunity

to apply for asylum before the immigration judge

* * * cannot justify invoking the exhaustion doc-

trine with respect to a challenge to the procedure

before the district director” (727 F.2d at 981 (em-

phasis added) ). Since petitioner is challenging the

merits of the district director’s determination that he

is ineligible for asylum, and not the procedure used,

Jean does not support his claim that he need not

exhaust administrative remedies.

In sum, no court of appeals has ever held, or even

suggested, that under the current asylum regulations

a deportable alien may obtain judicial review of the

merits of a district director’s asylum determination

before the alien exhausts his administrative remedies

by renewing his application for asylum before an im-

migration judge in deportation proceedings.°

4, Aside from his erroneous interpretation of deci-

sions of this Court and the courts of appeals, peti-

tioner appears to offer two arguments in support of

his claim that he should be excused from exhaustion

of administrative remedies. First, he contends that

the delay in eligibility for citizenship that might en-

sue from exhaustion warrants excusal from the re-

quirement (Pet. 4-5). Imposition of an exhaustion

requirement, however, always carries with it the

potential for delay of the benefit sought (if the ap-

5In addition to his claim of a conflict in the circuits, peti-

tioner claims that there is an intracircuit conflict in the Sev-

enth Circuit (Pet. 16). Such a conflict would be of concern

to that court, not this Court. Wisniewski v. United States,

353 U.S. 901 (1957). In any case, there is no conflict; none

of the cited Seventh Circuit cases involved an asylum claim.

11

plicant does not succeed in the further administrative

proceedings). That potential delay provides no

greater reason to excuse asylum applicants from ex-

haustion of administrative remedies than to do so for

anyone else.® Indeed, exhaustion of administrative

remedies in this context carries with it not just the

potential for delay of benefits, but also the certainty

of delay of deportation. For deportable aliens who

are not in custody, such as petitioner, that delay is

quite valuable.

Second, petitioner appears to argue “hat because

the immigration judge and Board of Immigration

Appeals will not “review” the district director’s

asylum determination, that determination should be

subject to judicial review (Pet. 5; see also id. at 13-

15).’ If petitioner is indeed so arguing, his conten-

tion is precisely backwards. The fact that petitioner

will receive a de novo hearing on his asylum claim

before the immigration judge, rather than a hearing

to review the district director’s determination of in-

* Petitioner erroneously suggests (Pet. 5) that footnotes

in this Court’s opinion, the lower court’s opinion, and our

jurisdictional statement in INS v. Chadha, 426 U.S. 919

(1983), indicate that possible delay in obtaining immigra-

tion benefits is a sufficient reason to excuse exhaustion of

administrative remedies. The cited footnotes indicate only

that, because Chadha might become eligible for citizenship

earlier if he prevailed in the court case than if he were

granted citizenship on the basis of his recent marriage to an

American citizen, his case was not moot.

7It is not clear that petitioner is in fact making this argu-

ment, since the parts of iis petition in which it might be

found discuss district directors’ decisions in general rather

than focusing on asylum denials. This case, of course, in-

volves asylum denials and not the myriad other decisions

made by district directors.

12

eligibility for asylum, is more reason, not less, to

require him to undergo that hearing before coming

to court.°

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

ROBERT KENDALL, JR.

MARY REED

Attorneys

NOVEMBER 1986

8In addition to holding that petitioner must exhaust his

administrative remedies, the court of appeals suggested that

a district director’s decision to grant or deny asylum is un-

reviewable under the political question doctrine (Pet. App.

17a-20a). It would be inappropriate to grant certiorari in

order to review that suggestion, whatever its merits, since

the judgment of the court of appeals is independently sup-

ported by its correct holding that petitioner was required to

exhaust administrative remedies.

TW oU. S. GOVERNMENT PRINTING OFFICE; 1986 181483 40079

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