Board of Immigration Appeals

“ Therefore, the 'unfettered discretion' to which the Court subjects persons like Jay is the unfettered discretion of inquiry officers of the Immigration Service, reviewable only by the Board of Immigration Appeals. Under our system of government there should be no way to subject the life and freedom of one individual to the 'unfettered' or, more accurately, the 'arbitrary' power of another. ”

“ Our opinions in the Accardi cases stand for the proposition that the Attorney General cannot, under present regulations, dictate the actions of the Board of Immigration Appeals. United States ex rel. Accardi v. ”

“ Part 1003 — Executive Office for Immigration Review 1003.0 Executive Office for Immigration Review. Subpart A Board of Immigration Appeals 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. ”

“ We need not speculate as to Congress' purposes. Quite possible, as Judge Browning has persuasively suggested, 'Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petitiion in a court of appeals for judicial review * * *.' Yamada v. Immigration & Naturalization Service, 384 F.2d 214, 218. It may therefore be that Congress expected the Immigration Service to include within the § 242 (b) proceeding 'all issues which might affect deportation.' Ibid. ”

“ Commissioner of Immigration (C. C. A.) 36 F. (2d) 1022, which in turn cites United States ex rel. Rios v. Day (C. C. A.) 24 F. (2d) 654. A contrary decision was reached by the Circuit Court of Appeals for the Ninth Circuit in Carr, Director of Immigration v. ”

“ At the conclusion of the proceeding, the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing. ”

“ Where an official's authority to act depends upon the status of the person affected, in this case eligibility for citizenship, that status, when in dispute, may be determined by a declaratory judgment proceeding after the exhaustion of administrative remedies. Under § 19 (c) of the Immigration Act the exercise of the Attorney General's appropriate discretion in suspending deportation is prohibited in the case of aliens ineligible for citizenship. The alien is determined to have a proscribed status by this administrative ruling of ineligibility. ”

“ Finally § 17 of the Act as amended, 8 U.S.C. § 153, 8 U.S.C.A. § 153, provides that boards of special inquiry shall be appointed by the Immigration and Naturalization Service, subject to approval of the Attorney General. ”

“ Where, in accordance with any regulations relating to appeals, a person, when he applies to be so registered by virtue of paragraph 2 above, has been given notice of a decision to make a deportation order in respect of him, he shall not be entitled to be so registered by virtue of that paragraph, unless before the date of his application an appeal by him against that decision has been finally determined in his favour or the Secretary of State has notified him that the order will not be made. ”

“ We think that the complaint of the government is well founded. The petitioners in the writ of habeas corpus were aliens who had not been legally admitted to the country-that is, neither the immigration authorities anor the court had held that they were entitled to admission. The immigration authorities had ordered their deportation. The Circuit Court of Appeals merely found that in the course of the examination by the immigration authorities the relators had not been given a fair opportunity to appeal to the Secretary of Labor as provided by the statute. ”

“ EXCEPTION.—The Secretary may not waive a ground described in paragraph (1) if such inadmissibility is based on a conviction or convictions, and such conviction or convictions would otherwise render the alien ineligible under section 244 (c) (2) (B) of the Immigration and Nationality Act (8 U.S.C. 1254a (c) (2) (B) ) . ”

“ By Rule 8, if he desires to appeal, he must give written notice thereof within two days after the decision. By Rule 9, within three days after the filing of notice a complete record of the case is transmitted to the Commissioner General of Immigration, and on such appeal no evidence will be considered that has not been made the subject of investigation and report by the inspector. Can anything be more harsh and arbitrary? ”

“ The existence of any right in the petitioner to champion the enforcement of the immigration laws of the United States was denied, and the jurisdiction of the court to entertain the controversy was expressly challenged. ”

“ 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. ”

“ The relators have no right to enter the United States unless it has been given to them by the United States. The burden of proof is upon them to show that they have the right. Immigration Act of 1924, § 23, 43 Stat. ”

“ It will be observed, therefore, that the officers on whom was imposed the duty of administering the immigration law and passing upon the right of an alien applicant to admission into the United States decided that the petitioners were of the class excluded from admission, and refused them landing. ”

“ Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; * * *.' It seems to me obvious that the exception provided in § 7 (a) covers immigrant inspectors dealing with the arrest of an alien for violation of the Immigration Act. ”

“ All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final, unless appeal be taken to the Superintendent of Immigration, whose action shall be subject to review by the Secretary of the Treasury. ”

“ That is, as stated in the opinion, one of persons claiming to be citizens of the United States, denied by an inspector of immigration-a mere ministerial officer-the right to enter the country, and who are now informed by this court that their application to the courts for the enforcement of that right must be denied. They are told that their only remedy is by appeal from one ministerial officer to another. ”

“ Its finding that the bifurcated procedure resulting from an alien's seeking review of a denial of discretionary relief in a District Court and review of an adjudication of deportability, as is admittedly required by § 106 (a) , in a Court of Appeals would expedite the deportation is without foundation. It is premised on its assumption that, in actions to review denial of discretionary relief, District Courts rarely grant restraining orders. ”