# Brief of Amicus Curiae — Foti v. Immigration & Naturalization Service

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief of Amicus Curiae
- **Published:** January 1, 1963
- **Citation:** 375 U.S. 217

## Text

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SUPREME COURT OF THE UNITED STATES

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" FBANCESCO FOTI, a/k/a FRANK FOTI, Petitsoher,

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0 Duuenarion AND NATURALIZATION e

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or WAIT OF CERTIORARI TO THB UNITED STATES COURT or APPEALE
FOR THE SECOND CIRCUIT _@

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Statement of. W 8 VV „
Statutory Provisions Involved „ hive ee
tion Presented 3 * . ah aint 2
Sta T o . e rans se
VVV eee eee
4. Historical Background of Sistitory Review |
aes Provisions of Deportation Orders oe
II. The Deportation der Herein Is Not Final oe
III. The Term“ Final rder of Beportation’’ Is
à Term of Ar! and Does Not Refer to De-
zials of Suspension of Deportation or Other
. Rulings in a Deportation Case a
TV. The Statute Requires Substantial and Pro-
bative Evidence to Support Findings of the
Birney GIO. «5 Ae es 10
V. Neither the Committee Reports Nor the Con-
= gressional Debates Require Reversal of the
N Deeision Below. 22 Abs sabe 5 eit ae
Conclusion eer FCC 12
8 * Crrations .
Cases: 5
Barber v. Gonzales, 347 U.S. 687 (1953) 5 ee 9
Case v. Los Angeles Lumber Products, 308 U.S. 10
P e 9
Heikkila v. Barber, 345 U.S. 229 (1953) eee Te „
Jay v. Boyd, 351 U.S. 345 (19550ê õꝛe 0 a 9
Lam Man Chi v: ‘Brownell, 314 F. sg hate! > amelie
222 6,12
_ McGrath v: Kristensen, 340 U.S. 162 (1950) ia
Rubinstein v. Brownell, 206 F. 2d 449, affirmed 346. ;
te NON aac 3
‘Shaughnessy v. Bedreiro, 349 F. S. 48 (1954) 5, 8
an States v. Atchison T. & S. F. R. Co., 220 U. 8.
CCC 5 9

United States v. Cusp Corp., 312 U.S. 600, 607 :
VVVVVVVVVVVVVVPVVVFVVCPVVTVTVVT Ba % A 9
United States v. Missouri Pacific PR, Co., 278 U.S.
n Sera „ me
Statutes and Regulations:
‘Imimigration and Nationality Act:
- 66 Stat. 163, as amended......... cae See 2
ZS8ee. 106 (8 U.S. C. 1105e, Supp. TV, 1968 ba). 2.
Sec. 242(b), 8 U.S.C. 1252(b).............:... 7
a Sec. 242 e), 8 U.S.C. 125 20e) „ 7
Sec. 242 0d), 8 U.S. C. 125 20dſ ) N 2
Sec. 242 (e), 8 U.S. C. 125 2e) 3 2
See. 242(f), 8 U.S.C. 12520 f) .
os a 42), (3), (0), 8 U.S.C. 1254(a) (2), 7
5 See, 405(a), 8 UAC: 1101 %%% 8
Code of Federal: Regulations: C
8 CR. 242.18 (1963 Supp.) 3 9
8 CFR. 243 (1963 Supp.) .. eee. 3 6
So Congressional Materials: 5 ; :
E. Doc. 329. 84th Cong. 2nd Sess Sy yee Cade By eee: 5
J Come... 8. ways 5
Es Me III cw cc oe le Jie 8
H. R 12487, Sin Ong. 5
66. ee 5
hy es — ↄðO ͥ r Tam
H. Rept. 2478, 85th Cong. 6
H. Rept. 423, 86th Cong. Sor ee 6
H. Rept. 1086, 87th Cong. 6
J nr aee 5
JJ. ss cpa ec . 5
77 so. eit 6,11

Adna Report of Proceedings of the Judicial Con-
ference of the United States (1959), p. 8s.

: Gordon and Rosenfield, Immigration Law and Pro-
__ cedure, t 3. ROR erin re rer err rarereee

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"SUPREME COURT. OF THE UN

No. 28

* a/k/a 3 Petitioner,
; UV. i

IMMIGRATION AND. NATURALIZATION SERVICE,
; Respondent

on wurr OF F CERTIORARI T To THE UNITED STATES ooο OF APPEALS
* a FOR THE SECOND CIRCUIT

: 3 75

i BRIEF O ASSOCIATION O IMMIGRATION AND

NATIONALITY. LAWYERS, AMICUS oN:

a ‘Btatement ot Interest

: A motion i is now pending before this Court to authorize 3
the filing of this amicus curiae brief. ä

The Association of Immigration and Nationality Lawyers

is a national organization chartered under the la bs of the

State of New York. Its members are attorneys specializing

in immigration, naturalization and nationality matters. Our -

interest in supporting the views of the majority of the

(2).

eo

*

Second Circuit in the decision below, r. 2477, prompts
us to file this brief. 8 8

3

. =
1952, as amérided [75 Stat. *. U.S.C. * Supp. I“
1958 Ed.], provides: ais 05 ae

—— ab tieiewn: a0 Bnccemesnnas —

’ guuston. Section 106(a). The procedure prescribed
hy, and all the provisions of the Act of December 29,

1.950, as amended (64 Stat. 1129; 68 Stat 961, 5 U.S.C.
1031, et seq.) shall apply to, and shall be the sole and
exclusive procedure for the judicial review of all final

orders of deportation heretofore or hereafter made

: against aliens within the United States pursuant to

rae administrative proceedings under Section 242 (b) of
. this Act or comparable near of any prior
Act“ “.“
Question Presented

Is the or:ginal’ jurisdiction: of the Circuit Court of Ap-
peals limited to fine] orders of deportation under Section
106 of the Immigration and Nationality Act of 1952, 8 U.S.C.
1105(a) or does it encompass any and all types of orders ae
entered in a deportation proceeding including denials: of uy
voluntary departure, adjustment of status, stays of de-
. portation, and,‘or denials of suspension of deportation? -
Petitioner, a native of Italy, remained in the United
States longer than permitted as a seaman on December 16,
1950 (R.1-2). On June 9, 1961, he was accorded a depor-
tation hearing pursuant to 8 U.S.C. 1252 (b). His deport- — —
io — was t On September 19, 1961, a special 5

. . .
2 f es 5 . :
r & ‘ ee — — — 5
8 „ 4 * 7 - 0
.

3)
— — — de

_ portation pursuant to 8 U.S.C. 1254 (a) (6) but granted his

alternative request for voluntary departure under 8 U.S.C.
1254(e). Provision was made in the order for withdrawal
of the privilege o voluntary departure without notice up-
on failure to depart when required and for deportation
according to law. (Govt. Brief, Appendix B, pp. 89-90.)

An appeal from this decision was dismissed by the Board

of Immigration Appeals on Noyember 28, 1961 (R. 1-3).

On November 29, 1961, a notice was issued for petitioner
b e N

‘ther stated: 8 :

Failure to depart on or before the specified-date may
result in the withdrawal of voluntary departure and
steps being taken to effect your n. (Govt.
Brief Appendix B, p. 0 ;

1 e e e cian ily Scien put
tioner that he would be deported to Italy if he failed to

_ depart within the authorized ‘time (Govt. Brief, Appendix
B, p. 93). No notice was ever served indicating that the

privilege of voluntary departure Had been withdrawn, nor

does any notation to that effect appear in the file.

Judicial review sought in the District Court on Decem-

‘ie 15, 1961, was denied for lack of jurisdiction (R. 6).

Thereafter, this proceeding to review the denial of suspen-

sion of deporfation was instituted in the Court of Appeals :

on January 15, 1962 (R. 46). Bya 24 decision, the Court

of Appeals dismissed the petition for lack of jurisdiction
(R. 7-36, 308 F. 2d 779). The matter is here on certiorari
ta the Second Circuit. mi

—

„

a

4

The petitioner has not yet forfeited his right to volun-
tary departure under the District Director's letter of No-

vember 29, 1961. Under the circumstances, there is no

effective order of deportation which can be reviewed.
The term final order of deportation is a term of art

"as stated by the Court below. It appears frequently in the

Immigration and Nationality Act of 1952 and should have

the same meaning throughout. ee ee

nized prior to the judicial review statute, does not encom

pass denials of supension of deportation. It does sot 45 :

clude all matters arising in a deportation hearing. Neither
the legislative history nor the Committee reports require

6 alterations of the well recognized meaning ascribed to a
‘‘final order of deportation’’. The decision below, there- -.
fore, correctly concluded that it had no original jurisdic-

tion to review an order denying suspension of deportation.
1

. Suter Review Proves of

Deportation Orders

12 McGrath v. Kristensen, 340 U.S. 162 (1950), this Court

upheld judicial review of a denial of suspension of de-

-: portation where no final order of deportation had been
rendered. Kristensen had been granted voluntary de-
parture without an order of deportation. The Government,
opposing judicial review, had argued unsuccessfully that: ee

“Tue Immigration Act-of 1917 provides that the de-
eision of the Attorney General in alien deportation
cases shall be ‘finial’. This has long been held to mean

1

.
a2
°

—

that Regertation colori cre subject daly to limited bet.

ee CCC

(Govt. Brief, p. 11)

Thereafter, in Heikkila v. Barber, 345 US. 229. (1953),
this Court held that under the 1917 Immigration Act giving
_ finality to administrative orders of deportation Court re-

view was limited to habeas corpus. Under the 1952 Im-.
migration and Nationality Act, however, deportation or- :
ders were held to be reviewable in declaratory judgment

actions. Shaughnessy v. Pedreiro, 349 U.S. 48 (1954).
On September’ 24, 1953, Attorney Gencral Brownell re-

ported to the Judicial Conference of the Enited States

that in view of the conflict between Heikkila v. Barber,

supra, and Rubinstein v. Brownell, 206 F. 2d 449 (prior to

its affirmance i in 346 U.S. 929), that:

we think Congress should spell out a method of ob-
taining judicial review in the distgjet court for any
alien against whom à final order of deportation has .

. issued, whether he is in custody or not.
On February 8, 1956, 1 President Bi er called for
legislation (H. Doc. 329, 84th Cong., 2nd Sess.) and the

draft of a bill was transmitted to Congress by Attorney

General Rogers on that day providing for judicial review
of deportation orders in ‘the district court. S..3169 and

H. R. 9182 were introduced i in the 84th Congress embodying —
this recommendation. Similar bills, S. 3⁴⁵ and H.R. **

vere introduced in the 85th Congress. 2

1 12487, 85th. Congress, for the first time . origi-
nal jurisdietion in the Court of Appeals to review final

orders of deportation. This was supplanted by H.R. 13311
which was the subject of hearings on July 10, 1958, before

i the House ok sparen on Immigration. The bill | 3 . 72

—

—

r sh Tictien sans ander ten
American Bar Association, the Association of Immigration
and Nationality Lawyers, and others. The bill was fa-

vorably reported, H. Rept. 2478, 85th Cong., 2nd Sess. It

_. was reintroduced as H.R. 2807, 86th Cong., and favorably

reported again in H. Rep, 423. Judge Biggs, the author

of Lam Man Chi v. Bouchard, 314 F. 2d 664 (C. A. 3, 1963),

which follows the decision below, reported H:R. 2807 favor-
ably to the Judicial Conference of the United States in
September, 1959, and secured its endorsement. 1959 An-

3 nual Report of Proceedings of the Judicial. e of
te United States, p. 8.

The bill finally emerged in the 87th Congress as 8. 2287
(H. , Rept. 1086) and: became Public Law 87-901.

* oe ine 2 „ h a I .
Tus Deportation Order Herein Is Not Final
_ Judicial review by the mandate of the statute applies .
only to final orders of deportation. Petitioner h&s been

directed to leave the United States without an order of
deportation. Although the date of voluntary departure

bas expired (December 18, 1961), thére is nothing in the

record to show that the privilege of voluntary departure

83

has been withdrawn or ‘forfeited in conformity with the --
District Director’s letter of November 29, * (Govt. Briel,

Appendix B, p. 92). :
1. Failure to depart within the allotted time may forfeit J

the privilege. Gordon and Rosenfield, ere ge
Lau and Procedure, * 710.

; 4 Normally, when an ster of deportation becomes effective,

upon an alien’s failure to depart, a warrant of deportation
is issued. 8 C.F.R. 243.2. Until the issuance of a warrant.

-af deportation, the Distriet Director is authorised to extend wae

the period of voluntary departure. In the instant case, it
cannot be said that the order of deportation is presently f
ee,

ES CW

——
;

7 — The Term / Final Order of Deportation Ea Term of Art

and Does Not Refer to Denials of Suspension of Deporta-

5 5 ‘tion or Other Rulings in Daten Case.

We submit that the Court of Appeald. correctly observed
that the words ‘final order of deportation’’ were ‘a term
of art. The 1952 Immigration and 3 Act re-
peatedly utiles these words.

1. Section 242 (b), 8 U.S. C. 1252(b), . a special
inquiry officer to make “‘determinations ineluding orders
of deportation’’.

2. Section 242(c), 8 U.S.C. 1252(c), gives the Attorney ;

? . General authority to detain an alien for six months after a

‘‘final order of deportation .

3. Section 24d), 8 U. Sc. 1252(d), 9 aper
vision of any alien against whom a final order of deporta-

tion' has been. ‘outstanding.

4. Section 242(e), 8 U.S.C. 1252(e), . criminal

- sanctions for aliens in certain categories who delay their.

‘ deportation after entrf against them of a ‘final order of
deportation’’.

5. Section 2420), 8 U.S.C. 12520), provides for the rein-

. statement of the previous order of deportation’’ of art
alien unlawfully reentering after deportation.

6. Section 244 (a) (2), (3), (4), 8 V.S.O: 1254(a)(29, (3),
(4) [prior to 1962 amendment by Public Law 87-885], con-
tained three provisions for suspension of deportation for

4\

781: 2

e less et bees served with 8 flask order t

~ deportation issued pursuant to this Act“.

7. Section 405 (a), 8 U.S.C. 1101, note, provides for con-
tinuing validity of outstanding ‘‘orders or warrants of

: deportation’’ on the effective date of the Act..

In addition to the foregoing, the regulations of the Immi-

gration Service contain provisions relating to final orders

of deportation, 8 C. F. R. 243 (1963 Supp.)., 23
Anal order of deportation is one which has achieved
administrative 2 e *. Pe reiro, 349 US.
48, 52 (1954).

A special inquiry ‘officer may enter an pee Ee of 3

: tion or any other order he is authorized to make including .

the grant or denial of suspension of deportation. 8 U. 8 0 ;

1242 (b), 8 C. F. R. 242.18 (1963 Supp.)

The Court below 1 nebel. 308 F. 2d at

—
„When Congress, in 1961, gave the Corte of oe
jurisdietiom to review ‘final orders pf deportation’
made against aliens within the United States

pursuant to administrative proceedings under Section

242(b) of this Act or comparable provisions of any
prior Aci; it was thus using a term of art which had
deen used repeatedly. in § 242 and possessed a well-

understood meaning. F. f . *

A final order of deportation had a well- defined meaning
among officials of the Immigration Service and with immi-

gration practitioners. It was not an order granting or

denying suspénsion of deportation, it was not one relating
to voluntary departure, adjustment of status, reg try, stay
of deportation, denial of a visa petition, or of a waiver.

9 tg ‘ * 8

5 *

See n Immigration Law and Practice (1961), 1 5.
131.
Wen Congress confined original review v juriediction in
the Court of Appeals to final orders of deportation, it did
not include all ancillary orders which may now be entered
in a deportation hearing. As Mr. Justice Holmes said in

United States v. Atchison T. & 8. F. R. C. 220 U.S. 37
(1910) : ao a

„We see no reason to 1 8 that Congres meant *
more than it said.“ ‘.

_Congress might have vested the Court of Appeals with
jurisdiction to review all orders entered i in a deportation
hearing, including orders of voluntary departure and those
dispositig of a suspension application. Instead, it restricted
_ review to final orders of deportation in legislation carefully
drafted and reviewed by the Department of Justice.

4 where words are employed in an act which had
at the time a well known meaning in the law, they are
used in that sense unless the context requires ‘the con- 7
trary’ Case v. Los Angeles Lumber Products, 308
U.S. 106, 115 (1939). a ;

It should also be noted that it is fair to assume that the
words final order of deportation’’, ‘were employed by the
Congress throughout the Act in-the same and not different
senses“ United States v. * Corp. bs 312 U.S. 600, oo
(1940).

Finally, we . as this Court did in Barber v. Gon- :
- gales, 347 U.S. 637 at 643 (1953) :

In the absence of explicit language showing ‘a con- |
_ trary congressional intent, we must give technical words:
ein Te statutes their usual technical —

Sr

10
- Giving the mace “final order of deportation’’ their usual
technical meaning _— an affirmation * the majority
e below, nt.
18 1 1 .
The Statute Pere Substantial sal Probative Evidence
5 to Support Findings of the Attorney General
Section 106 (a) (4), 8 v.80. 10s (e) (4), Supp. IV, 1958 :
Ad., requires that: a

„The petition shall be 3 solely upon the ad-
ministrative record upon which the deportation order
is based and the Attorney General's findings of fact,
if supported by reasonable, substantial and probative

3 evidence on the record considered as a whole, shall be
conclusive * * 9. 97

Loo ae the . denial is an integral and inseparable

part of the deportation order, as contended by the re-
spondent, and if it is reviewable initially in the Court of
Appeals, then it should be tested by the substantial evidence
rule set forth above. However, there is nothing in the
legislative history to show that Congress planned to over-
turn Jay v. Boyd, 351’U.S. 345 (1955), holding that confi-
dential information could be utilized in denying suspension

of deportation. We believe that the Court below correctly

_ decided on this basis that the statute was not drafted to
review denials of suspensidfi orders.

\ „

N

made the’ Ges bee Bees e the Babe

Debates Require Reversal of the Decision Below

The bill which. became law was 8. 2237. of the 87th Con-
gress. Reliance is placed by the Government not on Con-

gressional debates relating to this bill but to predecessor —

bills. Assuming that such debates have some persuasive
force, it is said that they clarify the meaning of ‘‘final
‘orders of deportation” and change the term to include
Kall questions which may arise in a deportation pro-
-ceeding’’. 5

The words “final order of deportation” | are neither
doubtful nor obsepre. Explanatory statements of mem;
bers of Congress in charge cannot be considered under these

circumstances as an aid in tonstruction. Railroad Commis-

sion v. Chicago B. & O. R. Co., 257 U.S. 563, 589 (1921).

Where language is clear, as here, the words employed are

to be taken as the final expression of the meaning intended.
United States v. Missouri Pacific R. R. Co., * U.S. 269, 277
(1928). *.

Moreover, the debates reveal a surprising lack of famil-

‘iarity with deportation procedures by Congressman” Moore °

(Govt, Brief, pp. 32, 33, note 19), one of the main sponsors

of the bill and the author of one of the supporting Com-

mittee reports. H. Rept. 423, 86th Cong., Ist Sess.

The last mentioned report, at page 20, contains the

chart relied upon so heavily by the Government (Govt.

Brief, p. 28). Obviously, the chart had. no impact upon

Congressman Moore who ‘believed, as the Government ac-
‘knowledges, that a suspension application was made after

entry of a final deportation order. It is obvious, therefore,

that this chart did not play a major role in the passage of
S. 2237 in a subsequent session of Congress.

a

6 2

12

f oa a
We submit that the views of Judge Biggs, who approved

and sponsored this legislation in the Judicial Conference
are more persuasive. In Lam Man Chi v. Bouchard, 314
F. 2d 663, 673, 674 (C.A. 3, 1963), he stated:

„The express language of the statute is sia that to
interpret as has been suggested requires judicial legis-

lation’ of such a sweeping and broad kind as to be
3 impossible.

Conclusion
We sabmit that the decision below was clearly justified
in interpreting the judicial review statute to limit original
Court of Appeals jurisdiction to final orders of deportation
and in not including all matters arising in a deportation

- proceeding.
— i Jack WassERMAN,
* = Dam Canna,
a Warner Building,
2 Washington 4, D. C.,
Aae for Association of

Immigration and N Lawyore N

Amicus Curiae.

(8495-4)

Nennen

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