Respondents, natives of China, came to the United States between
1949 and 1954, seeking admission. All were paroled in the United
States but have been ordered excluded. They applied for stays of
deportation under § 243(h) of the Immigration and Nationality Act,
on the ground that their deportation to China would subject them.to
physical persecution at the hands of the existing government. The
stays were denied, and they sued for judgments declaring their
nondeportability to China, directing consideration of their claims
under §243(h), and restraining the Attorney General from deporting
them.
Held:
1. Their release on parole did not alter their status as
excluded aliens; they were not "within the United States," within
the meaning of § 243(h); and thus they were not eligible for the
benefits of that section.
Len May Ma v. Barber, ante, p.
357 U. S. 185. P.
357 U. S.
194.
2. Deportation authority under the two exclusion sections, § 237
of the Immigration and Nationality Act and § 18 of the Immigration
Act of 1917, is not confined to situations where deportation is
immediate. Pp.
357 U. S.
194-196.
3. Regardless of which of the two exclusion sections, § 237(a)
of the 1952 Act or § 18 of the 1917 Act, provides the basis for
respondents' deportation, their applications for stays were all
filed subsequent to the 1952 Act, and must be determined by that
Act. P.
357 U. S.
196.
101 U.S.App.D.C. 229, 248 F.2d 89, reversed.
Page 357 U. S. 194
MR. JUSTICE CLARK delivered the opinion of the Court.
This is a companion case to
Leng May Ma v. Barber,
ante, p.
357 U. S. 185. The
five respondents are natives of China who came to the United States
seeking admission between 1949 and 1954, four of them arriving
before the effective date of the Immigration and Nationality Act.
Like petitioner in
Leng May Ma, all were paroled into the
United States, and all have been ordered excluded. They applied for
stays of deportation under § 243(h) of the Immigration and
Nationality Act, [
Footnote 1]
and, upon refusal, filed complaints in the District Court seeking
judgments declaring their nondeportability to China, directing
consideration of their claims under § 243(h), and restraining the
Attorney General from deporting them. The complaints were dismissed
by the District Court, but the Court of Appeals held that excluded
aliens on parole are "within the United States" for purposes of §
243(h), 101 U.S.App.D.C. 229, 248 F.2d 89. Because of the conflict
with the Ninth Circuit's decision in
Leng May Ma, we
granted certiorari. 355 U.S. 861 (1957). We have concluded that
respondents, like petitioner in
Leng May Ma, are
ineligible for stays of deportation under § 243(h). However,
because of the importance of this problem in the administration of
the immigration laws, we deem it appropriate to deal specifically
with a contention not directly asserted by petitioner in
Leng
May Ma.
The deportation of excluded aliens under the Immigration and
Nationality Act is authorized in § 237(a) of Chapter 4, wherein it
is provided that an alien excluded
Page 357 U. S. 195
under the Act "shall be immediately deported to the country
whence he came. . . ." 66 Stat. 201, 8 U.S.C. § 1227(a). A similar
provision existed in the immediate predecessor to § 237(a), which
was § 18 of the Immigration Act of 1917. [
Footnote 2] Deportation in expulsion proceedings is
separately provided for under the present Act in § 243 of Chapter
5, subsection (h) of which, of course, contains the authority which
respondents seek to invoke in this case. 66 Stat. 212, 8 U.S.C. §
1253. Like authority existed in the immediate predecessor of § 243,
which was § 20 of the Immigration Act of 1917, 39 Stat. 890, as
amended by § 23 of the Internal Security Act of 1950, 64 Stat.
1010.
Respondents assert, however, that neither § 237(a) nor its
predecessor, § 18 of the 1917 Act, is the basis for their
deportation, since they were not "immediately" deported, as
required in the sections. Hence, they argue that deportation must
rest upon § 243 of the present Act, as to the respondent who
arrived after the Immigration and Nationality Act, and its
predecessor, § 20 of the 1917 Act, as to the four who arrived prior
to the present Act.
We will assume, for purpose of analysis, that four of the five
respondents are, as they claim, deportable only under prior Acts by
virtue of their early arrival. However, under neither of the
exclusion sections,
i.e., § 237(a) of the present Act or §
18 of the 1917 Act, is the deportation authority confined, as
respondents contend, to those situations where deportation is
immediate. Neither section, when read in its entirety and in
context, fairly suggests any such limitation. Nor are there reasons
of policy to compel such a result. As the desire to remain
increases, those knocking on our doors quite naturally become more
litigious, and contested departures
Page 357 U. S. 196
often involve long delays. We doubt that the Congress intended
the mere fact of delay to improve an alien's status from that of
one seeking admission to that of one legally considered within the
United States. We conclude that there is ample basis under § 237(a)
and § 18 of the 1917 Act to deport respondents; we need not draw
upon the provisions in § 243 of the present Act or § 20 of the 1917
Act.
Regardless of which of the two exclusion cections, § 237(a) of
the 1952 Act or § 18 of the 1917 Act, provides the basis for
respondents' deportation, the applications for stays were all filed
subsequent to the 1952 Act, and hence must be determined by that
Act. For reasons explained in
Leng May Ma, § 243(h) is
unavailable to excluded aliens, and the fact of parole creates no
variance from this principle.
Reversed.
THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and
MR. JUSTICE BRENNAN dissent for the reasons stated in the
dissenting opinion in
Leng May Ma v. Barber, ante, p.
357 U. S.
190.
[
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]
Section 18: "[A]ll aliens brought to this country in violation
of law shall be immediately sent back. . . ." 39 Stat. 887.