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Dunat v. Hurney

May 29, 1961


Author: Staley

Before KALODNER, STALEY and FORMAN, Circuit Judges.

STALEY, Circuit Judge.

This appeal requires us to determine whether the Attorney General correctly interpreted the applicable statutory standard in denying an application for stay of a deportation order and, upon our determination that he failed to do so, the power of this court in the matter.

Dunat, a Yugoslav seaman who jumped ship in Norfolk, Virginia, in 1956, applied to the Attorney General under the provisions of subsection 243 (h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h)*fn1 for stay of an admittedly valid deportation order. Evidence was introduced in support of the application at a hearing before a special inquiry officer, where Dunat urged that he would be "physically persecuted" if deported to Yugoslavia since its Communist dominated government would deny him an opportunity to earn a livelihood because of his adherence to and practice of his Roman Catholic faith. The special inquiry officer's recommendation that a stay be denied was followed by the Regional Commissioner.

Dunat commenced an action in the district court for an indefinite stay of deportation, contending there, as he does here, that the Attorney General's action on his application was arbitrary and capricious and therefore constituted an abuse of discretion. In entering summary judgment in favor of the Attorney General and denying the stay, the district court concluded that "the applicant has been afforded all the rights he is entitled to, i.e., the rights of procedural due process. [Citing case.] We cannot say that the alien's evidence was so strong that failure to withhold deportation amounts to a failure to consider the evidence." D.C.E.D.Pa.1960, 183 F.Supp. 349, 351. This appeal followed.

Recently, on February 2, 1961, this court had occasion in Blazina v. Bouchard, 286 F.2d 507, to examine the role of the federal courts in reviewing a refusal by the Attorney General to grant a stay under subsection 243(h), 8 U.S.C.A. § 1253(h). We there said that an applicant has a right to have the application considered, and that such consideration must be given in conformity with the pertinent regulations promulgated by the Attorney General himself. The application may not be denied arbitrarily or capriciously, or be based on grounds that show a disregard of the law.

In denying Dunat's application, the Attorney General, acting through his designees, said the following in construing the phrase "physical persecution": "The fact that the applicant might be denied employment for church membership or for failure to join the Communist Party is likewise not within the import of the term 'physical persecution.'" We think that this was an erroneous interpretation of that phrase. Statutory construction is a question of law, Norton v. Warner Co., 1944, 321 U.S. 565, 64 S. Ct. 747, 88 L. Ed. 430, and such questions, Justice Frankfurter said in O'Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 508, 71 S. Ct. 470, 472, 95 L. Ed. 483, are "peculiarly appropriate for independent judicial ascertainment." On not infrequent occasions, statutory standards involved in deportation proceedings have been independently construed by the courts. E.g., McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S. Ct. 224, 231, 95 L. Ed. 173 ("residing in the United States"); Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 68 S. Ct. 374, 92 L. Ed. 433 ("sentenced more than once"). There is no basis for thinking that Congress gave the Attorney General the exclusive right to interpret the statute. Furthermore, construction here does not require nor is it facilitated by any administrative expertise, a reason frequently given for judicial deference to an agency's interpretation of statutory language. The phrase "physical persecution" which is involved here is one that has a readily ascertainable meaning.

In Blazina, we defined "physical persecution" as meaning death, torture, or confinement inflicted on account of race, religion, or political viewpoint. Here, the Attorney General defined this phrase incorrectly by emphasizing, at the expense of all else, the means used to bring about a result, rather than the result itself. To belittle economic sanctions regardless of their impact was, we think, to bypass the realities of everyday life. The statute does not concern itself with the manner in which physical persecution is inflicted, so long as that is the net effect of the forces or the circumstances that the Yugoslavian government will impose. Economic sanctions that may tend to lead to social ostracism, or deny one an opportunity to obtain and enjoy some of the social niceties and physical comforts certainly is not within the ambit of that phrase. However, there is no basis for thinking that "physical persecution" requires or even connotes the use of intense physical force applied to the body with all the dramatics of the rack and wheel. The denial of an opportunity to earn a livelihood in a country such as the one involved here is the equivalent of a sentence to death by means of slow starvation and none the less final because it is gradual. The result of both is the same, and it is one that Congress, motivated by the humanitarian instincts that have always characterized our conduct and that of our civilization, certainly hoped to avoid when subsection 243 (h) was enacted.

The testimony adduced before the special inquiry officer established that if returned to Yugoslavia, Dunat will be "physically persecuted" because of his religious beliefs.*fn2

We have examined many decisions which reviewed the action of the Attorney General in refusing a stay under subsection 243(h) and other analogous provisions. We find them clearly inapposite, for there the courts were called on to determine whether the applicant had been afforded procedural due process, or that the Attorney General had abused his discretion in failing to give proper weight to evidence in the record.*fn3

It is necessary to determine what disposition we shall make of Dunat's petition in light of our holding on the merits. On several occasions courts after reviewing executive action under provisions similar to the one involved here have ordered that relief be granted to the alien identical to or the equivalent of that requested from the executive officer or agency. Such disposition took place not only where there was a failure to exercise discretion, Dickhoff v. Shaughnessy, D.C.S.D.N.Y.1956, 142 F.Supp. 535 (enforcement of deportation order enjoined and action remanded); Acosta v. Landon, D.C.S.D.Cal.1954, 125 F.Supp. 434 (release from detention ordered); but also where it was improperly exercised, Cheng Fu Sheng v. Barber, 9 Cir., 1959, 269 F.2d 497 (release from detention ordered); Sang Ryup Park v. Barber, D.C.N.D.Cal.1952, 107 F.Supp. 603 (enforcement of deportation order enjoined), and Sang Ryup Park v. Barber, D.C.N.D.Cal.1952, 107 F.Supp. 605 (release from detention ordered). The rationale of those decisions is that though a court may not suspend or stay a deportation order as that power is vested exclusively in an executive officer or agency, still as a condition precedent to the enforcement of such order, such officer or agency must entertain and exercise its discretion in the manner prescribed by Congress. See United States ex rel. Kasparian v. Hughes, D.C.E.D.Pa.1922, 278 F. 262; United States ex rel. Cavanaugh v. Howe, D.C.S.D.N.Y.1916, 235 F. 990.

Here, there are no issues of fact to be resolved, nor does it appear that the Attorney General in exercising his discretion as he did relied on evidence or factors that are not in the record before us. In this regard, we are fully aware, of course, that the Regional Commissioner, in making his determination, commented as follows:

"I have also considered all the reliable additional information made available to me through official government channels, pertinent to the proper disposition of this application."

This does not indicate to us that such additional information was relied on by the Regional Commissioner nor that it was the basis for his action. In Jay v. Boyd, 1956, 351 U.S. 345, 360, 76 S. Ct. 919, 928, 100 L. Ed. 1242, the Supreme ...

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