Ins v. Stanisic, 395 U.S. 62 (1969)

Immigration and Naturalization Service v. Stanisic

No. 297

Argued February 25, 1969
Decided May 19, 1969
395 U.S. 62

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Respondent, a Yugoslav crewman, while in the United States under a "D-1" conditional landing permit (granting an alien crewman temporary shore leave while his ship is in port), appeared on January 6, 1965, at the Portland, Oregon, office of the Immigration and Naturalization Service (INS) and claimed that he feared persecution upon return to Yugoslavia. On the basis of his statement that he would not return to his ship, and in accordance with § 252(b) of the Immigration and Nationality Act (which provides a procedure for the deportation of an alien crewman holding a D-1 landing permit where it is determined that he does not intend to depart on the vessel which brought him) the District Director revoked respondent’s permit. Respondent, however, was offered the opportunity the next day to present evidence supporting the persecution claim, pursuant to 8 CFR § 253.1(e), under which an alien crewman whose conditional landing permit had been revoked and who claimed that he could not return to a Communist country because of fear of persecution might be temporarily "paroled" into the United States in the discretion of the District Director. Respondent presented no evidence, contending that he did not have enough time to prepare for the hearing and that he was entitled to have his claim for asylum heard by a special inquiry officer under § 242(b) of the Act. The District Director ruled against respondent and ordered him returned to his ship, then still in port. Following a temporary stay of deportation by the District Court, the District Director, on that court’s order, held a hearing at which respondent presented evidence, and, on January 25, 1965, held that respondent had not shown that he would be "physically persecuted" in Yugoslavia. The District Court upheld that finding and rejected respondent’s claim to a § 242(b) hearing. Respondent took no appeal, but petitioned Congress for a private bill, pending action on which the INS stayed deportation. When respondent’s effort failed, the INS ordered him deported. The INS, and later the District Court, on the basis of their previous determinations, rejected respondent’s renewed claim for a § 24(b) hearing. The Court of Appeals reversed, holding that the matter was not res judicata because those determinations were based on the premise that respondent’s ship was still in port; now, however, the ship had departed, and respondent had still not been deported. The court concluded that § 252(b) only authorized respondent’s "summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel’s departure, aboard another vessel pursuant to arrangements made before [his] vessel departed," and held that respondent was entitled to a de novo hearing under § 242(b).

Held:

1. The applicable procedure governing a request for asylum made by a crewman against whom § 252(b) proceedings have been instituted was the one set forth in 8 CFR § 253.1(e), which was promulgated under the Attorney General’s statutory power to act upon an alien’s request for asylum. Pp. 69-72.

2. An alien crewman whose temporary landing permit is properly revoked pursuant to § 252(b) is not entitled to a § 242(b) hearing merely because his deportation is not finally arranged or effected when his vessel leaves, and, under such circumstances, the Attorney General may provide (as he did in 8 CFR § 253.1(e)) that the crewman’s asylum request be heard by a district director. Pp. 72-79.

3. Since the Attorney General is authorized by an amendment to § 23(h) made after respondent’s January, 1965, hearing before the District Director to withhold deportation of an alien found to be subject to "persecution on account of race, religion, or political opinion," and not just "physical persecution," the case is remanded for a new hearing before the District Director. P. 79.

393 F.2d 539, reversed and remanded.