John Marshall Harlan II

“ 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. ”

“ Section 106 (a) [7] provides that the procedures for judicial review prescribed by the Hobbs Act, 64 Stat. 1129, 68 Stat. 961, 'shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hearafter made against aliens * * * pursuant to administrative proceedings under section 242 (b) of this Act * * *.' These procedures vest in the courts of appeals exclusive jurisdiction to review final orders issued by specified federal agencies. ”

“ 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. ”

“ Similarly, Representative Walter, in a subsequent debate, responded to a charge that judicial review under § 106 (a) would prove inadequate because of the absence of a suitable record, by inviting 'the gentleman's attention to the law in section 242, in which the procedure for the examiner is set forth in detail.' 107 Cong.Rec. ”