Petitioner, a native of China, came to the United States in
1951, claiming citizenship. Pending determination of her claim, she
was at first held in custody, but later was released on parole.
When it was determined that she was not a citizen, she was ordered
excluded. She surrendered, but applied for a stay of deportation
under § 243(h) of the Immigration and Nationality Act on the ground
that her deportation to China would subject her to physical
persecution and probable death at the hands of the existing
government. The stay was denied, and she sought a writ of habeas
corpus.
Held: her release on parole did not alter her status as
an excluded alien; she was not "within the United States," within
the meaning of § 243(h), and thus she was not eligible for the
benefits of that section. Pp.
357 U. S.
185-190.
241 F.2d 85 affirmed.
MR. JUSTICE CLARK delivered the opinion of the Court.
This is a habeas corpus case involving § 243(h) of the
Immigration and Nationality Act, which authorizes the Attorney
General
to withhold deportation of any alien within the United States to
any country in which in his opinion the alien would be subject to
physical persecution. . . . [
Footnote 1]
Page 357 U. S. 186
Claiming to be an alien "within the United States" by reason of
her parole in this country while her admissibility was being
determined, petitioner contends that she is eligible to receive the
benefactions of § 243(h). The Attorney General contends that the
section is applicable only to aliens who, in contemplation of law,
have entered the United States. He argues that petitioner has never
enjoyed that status, because she eventually was found ineligible
for entry, and ordered excluded. The District Court denied a writ
of habeas corpus, and the Court of Appeals affirmed. 241 F.2d 85.
We granted certiorari. 353 U.S. 981 (1957). We conclude that
petitioner's parole did not alter her status as an excluded alien
or otherwise bring her "within the United States" in the meaning of
§ 243(h).
Petitioner is a native of China who arrived in this country in
May, 1951, claiming United States citizenship on the ground that
her father was a United States citizen. Pending determination of
her claim, she at first was held in custody, but later, in August,
1952, was released on parole. Some three months thereafter, having
failed to establish her claim of citizenship, she was ordered
excluded, and the Board of Immigration Appeals affirmed. She
surrendered for deportation in January, 1954, and thereafter
applied for a stay of deportation under § 243(h) in which she
alleged that her pending deportation to China would subject her to
physical persecution and probable death at the hands of the
existing government. Her petition for writ of habeas corpus
followed administrative notification of her ineligibility for
relief under that section. Petitioner does not challenge the
Page 357 U. S. 187
validity of her exclusion order or the proceedings culminating
therein. She merely contends that, by virtue of her physical
presence as a parolee, she is "within the United States," and hence
covered by § 243(h). The question, therefore, is wholly one of
statutory construction.
It is important to note at the outset that our immigration laws
have long made a distinction between those aliens who have come to
our shores seeking admission, such as petitioner, and those who are
within the United States after an entry, irrespective of its
legality. In the latter instance, the Court has recognized
additional rights and privileges not extended to those in the
former category who are merely "on the threshold of initial entry."
Shaughnessy v. United States ex rel. Mezei, 345 U.
S. 206,
345 U. S. 212
(1953).
See Kwong Hai Chew v. Colding, 344 U.
S. 590,
344 U. S. 596
(1953). The distinction was carefully preserved in Title II of the
Immigration and Nationality Act. Chapter 4 [
Footnote 2] subjects those seeking admission to
"exclusion proceedings" to determine whether they "shall be allowed
to enter or shall be excluded and deported." 66 Stat. 200, 8 U.S.C.
§ 1226(a). On the other hand, Chapter 5 [
Footnote 3] concerns itself with aliens who have
already entered the United States and are subject to "expulsion,"
as distinguished from "exclusion," if they fall within certain
"general classes of deportable aliens." 66 Stat. 204, 8 U.S.C. §
1251. Proceedings for expulsion under Chapter 5 are commonly
referred to as "deportation proceedings." Parenthetically, the word
"deportation" appears also in Chapter 4 to refer to the return of
excluded aliens from the country, but its use there reflects none
of the technical gloss accompanying its use as a word of art in
Chapter 5.
Page 357 U. S. 188
For over a half century, this Court has held that the detention
of an alien in custody pending determination of his admissibility
does not legally constitute an entry though the alien is physically
within the United States.
Shaughnessy v. United States ex rel.
Mezei, 345 U. S. 206,
345 U. S. 215
(1953);
United States v. Ju Toy, 198 U.
S. 253,
198 U. S. 263
(1905);
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 661
(1892). It seems quite clear that an alien so confined would not be
"within the United States" for purposes of § 243(h). This, in fact,
was conceded by respondents in the companion case,
Rogers v.
Quan, post, p.
357 U. S. 193. Our
question is whether the granting of temporary parole somehow
effects a change in the alien's legal status. In § 212(d)(5) of the
Act, generally a codification of the administrative practice
pursuant to which petitioner was paroled, [
Footnote 4] the Congress specifically provided that
parole "shall not be regarded as an admission of the alien," and
that, after the return to custody, the alien's case "shall
continue to be dealt with in the same manner as that of
any other applicant for admission to the United States." [
Footnote 5] (Emphasis added.)
Petitioner's concept of the effect of parole certainly finds no
support in this statutory language.
Page 357 U. S. 189
This Court previously has had occasion to define the legal
status of excluded aliens on parole. In
Kaplan v. Tod,
267 U. S. 228
(1925), an excluded alien was paroled to a private Immigrant Aid
Society pending deportation. The questions posed were whether the
alien was "dwelling in the United States" within the meaning of a
naturalization statute, and whether she had "entered or [was] found
in the United States" for purpose of limitations. Mr. Justice
Holmes disposed of the problem by explicitly equating parole with
detention:
"The appellant could not lawfully have landed in the United
States . . . , and, until she legally landed, 'could not have dwelt
within the United States.'
Zartarian v. Billings,
204 U. S.
170,
204 U. S. 175. Moreover,
while she was at Ellis Island, she was to be regarded as stopped at
the boundary line and kept there unless and until her right to
enter should be declared.
United States v. Ju Toy,
198 U. S.
253,
198 U. S. 263. When her
prison bounds were enlarged by committing her to the custody of the
Hebrew Society, the nature of her stay within the territory was not
changed. She was still, in theory of law, at the boundary line, and
had gained no foothold in the United State."
267 U.S. at
267 U. S. 230.
We find no evidence that the Congress, in enacting § 243(h) in
1952, intended to depart from this interpretation.
The context in which § 243(h) appears in the Act persuasively
indicates the scope of its provisions. As we have observed, Title
II of the Act preserves the distinction between exclusion
proceedings and deportation (expulsion) proceedings, Chapter 4
dealing with the former and Chapter 5 with the latter. Within the
two chapters are enumerated separate administrative procedures
for
Page 357 U. S. 190
exclusion and expulsion, separate provisions for removal and
transportation, and -- most significantly -- separate provisions
for stays of deportation. Section 243(h), under which petitioner
claims relief, was inserted by the Congress not among Chapter 4's
"Provisions Relating to Entry and Exclusion," but squarely within
Chapter 5 -- a strikingly inappropriate place if, as petitioner
claims, it was intended to apply to excluded aliens.
The parole of aliens seeking admission is simply a device
through which needless confinement is avoided while administrative
proceedings are conducted. It was never intended to affect an
alien's status, and to hold that petitioner's parole placed her
legally "within the United States" is inconsistent with the
congressional mandate, the administrative concept of parole, and
the decisions of this Court. Physical detention of aliens is now
the exception, not the rule, and is generally employed only as to
security risks or those likely to abscond.
See Annual
Reports, Immigration and Naturalization Service, 1955, pp. 5-6;
1956, pp. 5-6. Certainly this policy reflects the humane qualities
of an enlightened civilization. The acceptance of petitioner's
position in this case, however, with its inherent suggestion of an
altered parole status, would be quite likely to prompt some
curtailment of current parole policy-an intention we are reluctant
to impute to the Congress.
Affirmed.
[
Footnote 1]
Section 243(h):
"The Attorney General is authorized to withhold deportation of
any alien within the United States to any country in which in his
opinion the alien would be subject to physical persecution and for
such period of time as he deems to be necessary for such
reason."
66 Stat. 214, 8 U.S.C. § 1253(h).
[
Footnote 2]
66 Stat. 195-204, 8 U.S.C. §§ 1221-1230.
[
Footnote 3]
66 Stat. 204-219, 8 U.S.C. §§ 1251-1260.
[
Footnote 4]
See Analysis of S. 716, 82d Cong., General Counsel,
Immigration and Naturalization Service, pp. 39-42.
[
Footnote 5]
Section 212(d)(5):
"The Attorney General may, in his discretion, parole into the
United States temporarily under such conditions as he may prescribe
for emergent reasons or for reasons deemed strictly in the public
interest any alien applying for admission to the United States, but
such parole of such alien shall not be regarded as an admission of
the alien, and when the purposes of such parole shall, in the
opinion of the Attorney General, have been served, the alien shall
forthwith return or be returned to the custody from which he was
paroled, and thereafter his case shall continue to be dealt with in
the same manner as that of any other applicant for admission to the
United States."
66 Stat. 188, 8 U.S.C. § 1182(d)(5).
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE BRENNAN concur, dissenting.
The statutory provision in controversy is contained in § 243(h)
of the Immigration and Nationality Act of 1952, 66 Stat. 212, 214,
8 U.S.C. § 1253(h), which reads:
"The Attorney General is authorized to withhold deportation of
any alien within the United States
Page 357 U. S. 191
to any country in which, in his opinion, the alien would be
subject to physical persecution and for such period of time as he
deems to be necessary for such reason."
The alien who is physically present in this country is about to
be sent to Communist China -- a country which the Immigration and
Naturalization Service itself has told us is inhospitable to
refugees.
*
Page 357 U. S. 192
The question for us is not whether she should or should not be
returned to China. It is whether the Attorney General has
discretion to withhold her deportation if in his opinion she would
be "subject to physical persecution" were she returned to that
country.
This alien is not in custody at our border. She is here on
parole. The authority to parole is contained in § 212(d)(5) of the
Act -- the Attorney General may, "in his discretion," parole an
alien "into the United States." How an alien can be paroled "into
the United States" and yet not be "within the United States"
remains a mystery.
Of course, if we had the problem of
Kaplan v. Tod,
267 U. S. 228,
different considerations would come into play. There, an alien on
parole sought to have her years here used to gain herself
citizenship. Alternatively, she argued that the statute had run on
her deportation, since her parole was an "entry."
No such enlargement of the prerogatives of a parolee is sought
here. This alien seeks not citizenship, not residence, but only the
shelter of a provision of the law designed to protect such refugees
from the fate of "physical persecution." She only requests that she
be eligible to be considered by the Attorney General as a
beneficiary of this humane provision of our law. Only a hostile
reading can deny her that respite.
I would not read the law narrowly to make it the duty of our
officials to send this alien and the others in the companion case
to what may be persecution or death. Technicalities need not enmesh
us. The spirit of the law provides the true guide. It makes plain,
I think, that this case is one of those where the Attorney General
is authorized to save a human being from persecution in a Communist
land.
* The Immigration and Naturalization Service announced on
October 31, 1956, a policy of granting stays of deportation for
those headed back to Red China. In that connection it stated:
"Official notice may be taken that the China mainland is under
the control of a
de facto Communist government. As in
other Communist states, this government operates as totalitarian
dictatorship, suppressing personal liberties and imposing arbitrary
restraints on the people when necessary to maintain its authority
or secure its objectives. Its methods for imposing its will include
persecution of individuals and groups by way of economic sanctions,
corporal punishment, incarceration, and execution."
"While it can be accepted as a general proposition that the
Peiping government at times engages in these forms of persecution
to further its authoritarian ends, no reliable information has yet
been made available to this Service to indicate whether such
persecution is directed indiscriminately against the populace as a
whole or whether it is employed on a selective basis against
particular elements. It is not known to what extent or to what
degree such factors as personal political beliefs or religious
views, in themselves, are noticed or acted upon by the Communist
authorities. Another unknown factor is whether prior presence in
the United States has any bearing on the kind of treatment accorded
by the Communist authorities to a Chinese national upon his return
to the mainland, despite the fact that there is evidence indicating
strong and continued efforts on the part of these same authorities
to persuade their overseas nationals to reestablish themselves and
their residence within Communist China. These and other specific
considerations bearing on the question of physical persecution as
practiced on the China mainland today are matters which await
further inquiry and to which an answer may be provided through the
collation of intelligence material being gathered by other agencies
of the United States government."
In re Lee Sung, No. A-7921505.