Before BIGGS, Chief Judge, McLAUGHLIN, Circuit Judge, and SHERIDAN, District Judge.
This is an appeal by three aliens from an order of the court below denying their motion for a preliminary injunction against deportation to Hong Kong.
Chi, Hong and Yu, the plaintiff-appellants, were born on the Chinese mainland when the Chinese Nationalist Government (now situated on Formosa) controlled all China. They were admitted to the United States as crewmen for a period not to exceed twenty-nine days and remained illegally by overstaying their shore leaves. Deportation proceedings under the Immigration and Nationality Act of 1952, § 242, 66 Stat. 208 (1952), 8 U.S.C.A. § 1252 et seq. (1953), were instituted against each of them resulting in orders directing deportation, in warrants of deportation, and finally in notifications that the deportations had been "directed" to be made to Hong Kong.*fn1 On January 22, 1962, the plaintiffs filed a complaint against the District Director of the Immigration and Naturalization Service in the court below alleging that the proposed deportations to Hong Kong were illegal because the defendant had failed to meet the requirements of § 243 of the Immigration Act of 1952, 8 U.S.C.A. § 1253 (1953), i.e., by not inquiring of the "country [Communist China] to which the plaintiffs [allegedly] are subject nationals or citizens" as to whether it would accept them as deportees, before sending them elsewhere. The complaint prayed that the District Director be required to make such inquiry prior to deporting plaintiffs, and that the deportations be restrained pending the outcome of the litigation. The plaintiffs' motion for a preliminary injunction was denied because "the plaintiffs [showed] no likelihood of success * * * by virtue of the operation of the doctrine of res judicata and on the basis of the court's agreement with the reasoning in Leong Leun Do v. Esperdy, 197 F.Supp. 604 (S.D.N.Y.1961)". The appeal at bar is from the order denying the preliminary injunction. After the appeal was taken, the plaintiffs moved the court below for a stay of deportation pending the disposition of the appeal. It was denied. This court, however, granted a stay.
In limine we are confronted with the question whether the court below had jurisdiction to entertain the action. In Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955) it was held that under Section 10 of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1009 (1950 Supp.), a review could be had in a United States District Court of an order directing the deportation of an alien under the Immigration Act of 1952 by a suit for a declaratory judgment and injunction. This apparently was the theory on which the plaintiffs' action was brought.*fn2
Is this theory supportable in view of the Act of September 26, 1961, the "addition" to the Immigration and Nationality Act of 1952, § 106(a), 8 U.S.C.A. § 1105a (a) (1962 Supp.)?*fn3 Incorporated by reference in the 1961 Act is Section 2 of the Act of December 29, 1950, as amended, 5 U.S.C.A. § 1032 (1961 Supp. Pamph.). Read together they give to the Courts of Appeals exclusive jurisdiction to review "all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 242(b) * * *" of the 1952 Immigration Act, 8 U.S.C.A. 1252 (b). § 106(a), 8 U.S.C.A. § 1105a(a) (1962 Supp.). At the time the suit at bar was filed, the 1961 Act was in effect. See Pub.L. 87-301, § 5(b), 75 Stat. 653 (1961). It follows that if the determinations or directions to deport the plaintiffs to Hong Kong constituted "final orders of deportation * * * made * * * pursuant to administrative proceedings under section 242(b)", then this court and not the court below had jurisdiction to review the determinations or directions. This is the question which we must decide.
At the time when the plaintiffs' deportation proceedings were pending, it was customary for the Immigration Service to make two successive determinations prior to deporting an alien. The first was to decide whether the alien should or should not be deported. This determination was made by a Special Inquiry Officer as provided in § 242(b) of the 1952 Act, 8 U.S.C.A. § 1252(b). If deportation was decided upon, there followed an order that "the alien be deported". See 8 C.F.R. § 242.19, prior to the December 19, 1961 amendment promulgated because of the 1961 Act. Then, in accordance with § 243(a) of the 1952 Act, 8 U.S.C.A. § 1253(a), the Immigration Service determined the place to which the alien was to be deported. See 8 C.F.R. § 243.1(b) as it was prior to the December 19, 1961 amendment. The chronologies set forth in Lezos v. Landon, 235 F.2d 581 (9 Cir., 1955); Ying v. Kennedy, 110 U.S.App.D.C. 247, 292 F.2d 740, 742 (1961), cert. den. 368 U.S. 914, 82 S. Ct. 193, 7 L. Ed. 2d 130 (1961); and Chao-Ling Wang v. Pilliod, 285 F.2d 517 (7 Cir., 1960), reflect this two-step practice. See also Pedreiro v. Shaughnessy, 213 F.2d 768 (2d Cir., 1954), aff'd 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955).
The proceedings in Yu's case were typical.*fn4 On December 2, 1959, a hearing was held by a Special Inquiry Officer under 8 U.S.C.A. § 1252(b) "to determine [Yu's] deportability". After the hearing the Special Inquiry Officer entered an order that "[Yu] be deported from the United States in the manner provided by law * * *". As we have stated, the order did not designate the place to which Yu was to be deported. On December 31, 1959, the defendant issued a warrant of deportation commanding any officer or employee of the Immigration Service to "take into custody and deport [Yu] pursuant to law". The warrant did not name the place to which Yu was to be deported.*fn5 On February 26, 1960, the defendant sent Yu a notice saying "[pursuant] to the order of deportation in your case and Section 243 of the Immigration and Nationality Act [8 U.S.C.A. § 1253], your deportation to Hong Kong has been directed".
The plaintiffs concede that they are deportable, and make no attack on the orders of deportation entered by the Special Inquiry Officer, but they challenge the designation of Hong Kong as the place of deportation without the Immigration Service determining in advance whether Communist China would or would not receive them. Each plaintiff asserts that such an inquiry is required by 8 U.S.C.A. § 1253.
Because the Act of 1961 is of comparatively recent origin, adjudications involving the issue of appealability of orders entered in deportation proceedings one decision, Mai Kai Fong v. Immigration and Naturalization Service, 305 F.2d 239 (9 Cir., 1962), the facts of which seem similar to those at bar and which involved directly an adjudication of the jurisdictional issue presently before us. In the cited case the Court of Appeals for the Ninth Circuit held, as an alternative ground of decision, that the designation of the place to which an alien should be deported, made subsequent to an order directing deportation, was not a final order of deportation pursuant to § 242(b) of the Immigration Act of 1952, and therefore was not reviewable originally by that Court of Appeals. But the jurisdictional issue with which we are concerned was not discussed. The decision was based by way of analogy on the decision in Giova v. Rosenberg, 308 F.2d 347 (9 Cir., 1962),*fn6 which had held, without discussion, that a Court of Appeals did not possess original jurisdiction to review an order of the Board of Immigration Appeals denying a motion to reopen an immigration proceeding.
In Louie King Fong v. Immigration and Naturalization Service, 308 F.2d 191 (1962), the Court of Appeals for the Ninth Circuit assumed, again without discussion of the jurisdictional problem, that an order by the Attorney General refusing to suspend a deportation order, entered under § 244(a), was reviewable by it. The Court of Appeals, acting under Pub.L. 87-301, § 5(b), supra, had accepted a transfer of a case from the United States District Court pending in the District Court on the effective date of the 1961 Act. Cf. Gallegos v. Immigration and Naturalization Service, 310 F.2d 688 (9 Cir., 1962), in connection with Gallegos v. Hoy, 262 F.2d 665 (9 Cir., 1958). But see Holz v. Immigration and Naturalization Service, 309 F.2d 452 (9 Cir., 1962).
In Zupicich v. Esperdy, 207 F.Supp. 574 (S.D.N.Y.1962), the United States District Court for the Southern District of New York held that it, rather than the Court of Appeals for the Second Circuit, possessed the original jurisdiction to review an order of the Attorney General, entered under § 243(h), 8 U.S.C.A. § 1253(h), and refused to restrain deportation on the ground that the alien would be subjected to physical persecution if he were to be deported. See also Holz v. Immigration and Naturalization Service, 309 F.2d 452 (1962), in which the Court of Appeals for the Ninth Circuit held that it lacked jurisdiction under the 1961 Act to originally review a similar order entered under § 243(h). But compare this with the decision in Louie King Fong v. Immigration and Naturalization Service, supra, decided four months earlier.
In Blagaic v. Flagg, 304 F.2d 623 (1962), the Court of Appeals for the Seventh Circuit reached the opposite conclusion as to an order under § 243(h) on the theory that the execution or suspension of a deportation order was "ancillary" to the order directing deportation itself and therefore was an integral part of it. Using the ancillary approach, the same Court of Appeals in Roumeliotis v. Immigration and Naturalization Service, 304 F.2d 453 (1962), held that an order denying an alien a first preference immigrant visa under § 203(a) (1) (A), 8 U.S.C.A. § 1153(a) (1) (A), was reviewable originally by the Court of Appeals.
In Foti v. Immigration and Naturalization Service, 308 F.2d 779 (1962), the Court of Appeals for the Second Circuit, sitting en banc,*fn7 held by a five to four vote, that an order entered by the Attorney General under § 244(a) (5) of the Nationality and Immigration Act, 8 U.S.C.A. § 1254(a) (5), refusing to suspend an alien's deportation upon the ground of exceptional hardship, was not a final order of deportation pursuant to § 242(b), within the ambit of the 1961 Act.*fn8,*fn9 The majority and minority opinions in Foti give detailed consideration to the scope of § 106(a) of the Act as amended in 1961, 8 U.S.C.A. § 1105a, providing for review of final orders of deportation by the Courts of Appeals. The majority opinion conceded that decision either way presents difficulties, but pointed out, nonetheless, that the 1961 Act gave to the Courts of Appeals original jurisdiction to review administrative final orders of deportation only when made "pursuant to administrative proceedings under section 242(b)" of the 1952 Act, that § 242(b) prescribes the procedure by which deportability of an alien must be determined, and that subsections (c), (d) and (e) use the phrase "final order of deportation" in referring to the order that determines an alien's deportability in proceedings under Section 242(b). From the foregoing the majority deduced that the words "final order of deportation" were words of art, and that Congress, by lifting this phrase bodily from the 1952 Act and inserting it in the 1961 Act, intended that it should have in the 1961 Act the meaning and effect that it had in the 1952 Act; viz., a bare-bones order directing deportability without more.*fn10 In reaching the opposite conclusion, the minority laid emphasis upon legislative history as clearly indicating an intention on the part of Congress to place in the courts of appeals the sole power to review orders having incidents of finality ...