1. Under § 10 of the Administrative Procedure Act, an alien
whose deportation has been ordered administratively under the
Immigration and Nationality Act of 1952 may obtain a judicial
review of such order by an action in a federal district court for a
declaratory judgment and injunctive relief. Pp. 349 U. S.
(a) Heikkila v. Barber, 345 U.
, distinguished. P. 349 U. S.
(b) The provision of § 242(b) of the Immigration and Nationality
Act of 1952 which makes deportation orders of the Attorney General
"final" does not "expressly" supersede or modify the provisions of
the Administrative Procedure Act within the meaning of § 12
thereof, and does not make § 10 of the latter Act inapplicable to
deportation proceedings. Pp. 349 U. S.
(c) A habeas corpus proceeding is not the sole means of
obtaining judicial review of a deportation order issued under the
1952 Act. An action in a federal district court to declare the
order void and enjoin its execution is an appropriate remedy. P.
349 U. S.
2. In an action in a federal district court against a District
Director of Immigration and Naturalization to review a deportation
order, declare it void, and enjoin its execution, the Commissioner
of Immigration and Naturalization is not an indispensable party.
Pp. 349 U. S.
213 F.2d 768 affirmed.
Page 349 U. S. 49
MR. JUSTICE BLACK delivered the opinion of the Court.
After administrative hearings, the respondent Pedreiro, an
alien, was ordered deported under the Immigration and Nationality
Act of 1952. [Footnote 1
petitioned the District Court for the Southern District of New York
to review the deportation order, declare it void, and issue a
temporary injunction restraining its execution pending final
district court action. In part, he contended that there was no
legal evidence to support the order and that, in violation of due
process, he had been compelled to incriminate himself in the
hearings. Relief was sought only against the District Director of
Immigration and Naturalization for the District of New York. The
District Court dismissed the petitioner on the ground that either
the Attorney General or the Commissioner of Immigration and
Naturalization was an indispensable party, and should have been
joined. This holding made it unnecessary for the District Court to
pass on another ground urged for dismissal -- that the Immigration
and Nationality Act of 1952 precluded judicial review of
deportation orders by any method except habeas corpus. The Court of
Appeals reversed, rejecting both contentions of the Government. 213
F.2d 768. In doing so it followed the Court of Appeals for the
District of Columbia Circuit, which had held that deportation
orders entered under the 1952 Immigration Act can be judicially
reviewed in actions for declaratory relief under § 10 of the
Administrative Procedure Act. [Footnote 2
] Rubinstein v. Brownell,
U.S.App.D.C. 328, 206 F.2d 449, aff'd by an equally divided
346 U.S. 929. But the Court of Appeals for the First
Circuit has held that habeas corpus is the only way such
deportation orders can be attacked. Batista v.
Page 349 U. S. 50
213 F.2d 20. Because of this conflict among
the circuits and the contention that allowing judicial review of
deportation orders other than by habeas corpus conflicts with
Heikkila v. Barber, 345 U. S. 229
granted certiorari, 348 U.S. 882.
case, unlike this one, dealt with a
deportation order under the Immigration Act of 1917. That Act
provided that deportation orders of the Attorney General should be
"final," [Footnote 3
] and had
long been interpreted as precluding any type of judicial review
except by habeas corpus. Heikkila contended that this narrow right
of review of deportation orders under the 1917 Act had been
broadened by § 10 of the 1946 Administrative Procedure Act, which
authorizes review of agency action by any appropriate method
"except so far as (1) statutes preclude judicial review. . . ."
Because this Court had construed the word "final" in the 1917 Act
as precluding any review except by habeas corpus, it held that the
Administrative Procedure Act gave no additional remedy, since § 10
excepted statutes that precluded judicial review. The Court
carefully pointed out, however, that it did not consider whether
the same result should be reached under the 1952 Immigration and
Nationality Act, "which took effect after Heikkila's complaint was
filed." [Footnote 4
does not control this case, and we
must consider the effect of the 1952 Immigration and Nationality
Act on the right to judicial review under the Administrative
Section 10 of the Administrative Procedure Act provides that
"Any person suffering legal wrong because of any agency action,
or adversely affected or aggrieved by such action within the
meaning of any relevant statute, shall be entitled to judicial
And § 12
Page 349 U. S. 51
of the Act provides that
"No subsequent legislation shall be held to supersede or modify
the provisions of this act except to the extent that such
legislation shall do so expressly."
In the subsequent 1952 Immigration and Nationality Act, there is
no language which "expressly" supersedes or modifies the expanded
right of review granted by § 10 of the Administrative Procedure
Act. But the 1952 Immigration Act does provide, as did the 1917
Act, that deportation orders of the Attorney General shall be
"final." The Government contends that we should read this as
expressing a congressional purpose to give the word "final" in the
1952 Act precisely the same meaning Heikkila gave "final" in the
1917 Act, and thereby continue to deprive deportees of all right of
judicial review except by habeas corpus. We cannot accept this
Such a restrictive construction of the finality provision of the
present Immigration Act would run counter to § 10 and § 12 of the
Administrative Procedure Act. Their purpose was to remove obstacles
to judicial review of agency action under subsequently enacted
statutes like the 1952 Immigration Act. And, as the Court said in
case, the Procedure Act is to be given a
"hospitable" interpretation. In that case, the Court also referred
to ambiguity in the provision making deportation orders of the
Attorney General "final." It is more in harmony with the generous
review provisions of the Administrative Procedure Act to construe
the ambiguous word "final" in the 1952 Immigration Act as referring
to finality in administrative procedure, rather than as cutting off
the right of judicial review in whole or in part. And it would
certainly not be in keeping with either of these Acts to require a
person ordered deported to go to jail in order to obtain review by
The legislative history of both the Administrative Procedure Act
and the 1952 Immigration Act supports respondent's
Page 349 U. S. 52
rights to full judicial review of this deportation order. The
sponsors of the Administrative Procedure Act were Representative
Walter in the House and Senator McCarran in the Senate. They were
also the sponsors of the 1952 Immigration Act. While the latter Act
was under consideration in the House, an amendment was proposed
which provided for liberal judicial review of deportation orders.
Representative Walter assured the House that the proposed amendment
was not needed. He said:
"Now we come to this question of the finality of the decision of
the Attorney General. That language means that it is a final
decision as far as the administrative branch of the Government is
concerned, but it is not final in that it is not the last remedy
that the alien has. Section 10 of the Administrative Procedures Act
is applicable. [Footnote
With reference to the same problem, Senator McCarran assured the
Senate that "the Administrative Procedure Act is made applicable to
the bill." [Footnote 6
] It is
argued that these assurances by the chairmen of the committees in
charge of the bills were but isolated statements, and that other
legislative history is sufficient to refute them. We cannot agree.
Our holding is that there is a right of judicial review of
deportation orders other than by habeas corpus, and that the remedy
sought here is an appropriate one.
We also reject the Government's contention that the Commissioner
of Immigration and Naturalization is an indispensable party to an
action for declaratory relief of this kind. [Footnote 7
] District Directors are authorized by
regulation to issue warrants of deportation, to designate the
country to which an alien shall be deported, and to determine when
his mental or physical condition requires the
Page 349 U. S. 53
employment of a person to accompany him. The regulations purport
to make these decisions of the District Director final. [Footnote 8
] It seems highly
appropriate, therefore, that the District Director charged with
enforcement of a deportation order should represent the
Government's interest. Otherwise, in order to try his case, an
alien might be compelled to go to the District of Columbia to
obtain jurisdiction over the Commissioner. To impose this burden on
an alien about to be deported would be completely inconsistent with
the basic policy of the Administrative Procedure Act to facilitate
court review of such administrative action. We know of no necessity
for such a harsh rule. Undoubtedly the Government's defense can be
adequately presented by the District Director, who is under the
supervision of the Commissioner.
It is argued, however, that the Commissioner should be an
indispensable party because a judgment against a District Director
alone would not be final and binding in other immigration
districts. But we need not decide the effect of such a judgment. We
cannot assume that a decision on the merits in a court of appeals
on a question of this kind, subject to review by this Court, would
be lightly disregarded by the immigration authorities. Nor is it to
be assumed that a second effort to have the same issue decided in a
habeas corpus proceeding would do any serious harm to the
Government. In habeas corpus proceedings, district courts would
have the duty to consider previous court decisions on the same
matter. And even though, in extraordinary circumstances, new
matters not previously adjudicated may arise in habeas corpus
proceedings, this is no adequate reason for subjecting an alien to
the great burden of having to go with his witnesses to the District
of Columbia, which may be far distant from his home, in order to
contest his deportation.
Page 349 U. S. 54
Our former cases have established a policy under which
indispensability of parties is determined on practical
considerations. See, e.g., Williams v. Fanning,
332 U. S. 490
That policy followed here causes us to conclude that the
Commissioner of Immigration and Naturalization is not an
66 Stat. 163, 8 U.S.C. § 1101 et seq.
60 Stat. 243, 5 U.S.C. § 1009.
39 Stat. 889, as amended, 54 Stat. 1238.
Heikkila v. Barber, 345 U. S. 229
345 U. S.
98 Cong.Rec. 4416.
98 Cong.Rec. 5778.
Compare Paolo v. Garfinkel,
200 F.2d 280; Rodriguez
212 F.2d 508.
CFR §§ 234.1, 243.2.
MR. JUSTICE MINTON, with whom MR. JUSTICE REED and MR. JUSTICE
BURTON join, dissenting.
In Heikkila v. Barber, 345 U.
, this Court held that § 19(a) of the Immigration
Act of 1917, making decisions of the Attorney General "final," was
a statute which precluded judicial review within the meaning of the
first exception to § 10 of the Administrative Procedure Act. Now,
slightly more than two years later, the Court holds that judicial
review of deportation orders is available under § 10 even though §
242(b) of the 1952 Act is a reenactment, almost verbatim, of the
"final" clause of the 1917 Act. The decision is based on three
considerations. First, § 12 of the Administrative Procedure Act
"No subsequent legislation shall be held to supersede or modify
the provisions of this act except to the extent that such
legislation shall do so expressly,"
and, in the opinion of the majority, there is no language in the
1952 Act which "expressly" establishes a more limited review.
Second, it is believed more consistent with the liberal review
provisions of the Administrative Procedure Act to construe "final"
as referring to finality in the administrative process. And third,
isolated statements in the congressional debates indicate that
Congress actually intended to permit review under the
Administrative Procedure Act.
Section 12 of the Administrative Procedure Act, however, as I
read it, applies only where subsequently enacted legislation, in
the words of the Court, "supersedes or
Page 349 U. S. 55
modifies the expanded right of review granted by § 10 of the
Administrative Procedure Act," and this Court held in the
case that the rights of aliens subject to
deportation were not enlarged by the Administrative Procedure Act.
Moreover, notwithstanding significant substantive changes in the
immigration laws in the 1952 Act, I hesitate to consider the
reenactment of a provision, with minor changes in language,
"subsequently enacted legislation." The issue then is much like the
one the Court faced in Heikkila:
whether, in the context
of the liberal review provisions of the Administrative Procedure
Act, Congress intended, by § 242(b), to preclude application of §
10 of the Administrative Procedure Act. As this Court pointed out
the word "final," though ambiguous in other
contexts, as used in immigration legislation since the Immigration
Act of 1891, has precluded judicial review except by habeas corpus.
In view of this long history and the reenactment of § 242 with only
minor textual changes, I hesitate to impute to Congress an
intention to change the method of review absent a clear showing.
The Court found in examining the legislative history that
Representative Walter, one of the sponsors of the 1952 Act as well
as of the Administrative Procedure Act, believed that § 10 of the
Administrative Procedure Act applied to deportation orders. The
statement by Senator McCarran, however, that "the Administrative
Procedure Act is made applicable to the bill," in context, may
merely refer to the administrative procedures aspect of an
amendment proposed by Senator Moody. 98 Cong.Rec. 5778, 5779. In
any event, the statements of Congressman Walter and Senator
McCarran, in the course of debate on the floor, are less persuasive
than the more carefully prepared and authoritative committee report
and the report of the Senate Committee in charge of the bill would
seem to indicate that no change in the law was intended.
Page 349 U. S. 56
The Immigration and Nationality Act of 1952 was preceded by
extensive studies of the structure and operation of the immigration
law. These studies culminated in a report by the Senate Committee
on the Judiciary entitled The Immigration and Naturalization
Systems of the United States, S.Rep. No. 1515, 81st Cong., 2d Sess.
28. It contains the following statement at 629:
"Once the order and warrant of deportation are issued, the
administrative process is complete. Under the Fifth Amendment to
the Constitution, the 'due process' provision, the alien may,
however, petition for a writ of habeas corpus. In a habeas corpus
proceeding based on a deportation case, the court determines
whether or not there has been a fair hearing, whether or not the
law has been interpreted correctly, and whether or not there is
substantial evidence to support the order of deportation. Habeas
corpus is the proper remedy to determine the legality of the
detention of an alien in the custody of the Immigration and
Naturalization Service. The dismissal of an application for a writ
of habeas corpus is not a bar to the filing of another application
before another judge."
Although this report was dated April, 1950, it serves to clarify
any ambiguity in the statement in the Senate report accompanying
the bill in final form that judicial review in immigration cases
was not expanded "beyond that under existing law." S.Rep. No. 1137,
82d Cong., 2d Sess. The Committee, in using the phrase "existing
law," particularly in light of the long history of exclusive habeas
corpus review, was necessarily referring to the law as understood
and expressed in its prior report. Moreover, the report also
states, at page 30, that
Page 349 U. S. 57
declares that the prescribed deportation proceedings shall be
the sole and exclusive procedure for determining the deportability
of any alien, notwithstanding the provisions of any other law."
The legislative history, therefore, would seem to make it
unmistakably clear that Congress, aware that the word "final" as
used in immigration legislation was not ambiguous, intended to
preserve habeas corpus as the only escape from a deportation order.
It was error to give relief under the Administrative Procedure