United States ex rel Paktorovics v. Murff

MEDINA, Circuit Judge. This is an appeal from the dismissal of a writ of habeas corpus obtained by appellant, a refugee who fled from Hungary at the time of the Soviet suppression of the revolution which swept his country in the fall of 1956. The writ was sustained as to appellant’s wife and two children, but the Government’s cross-appeal from that determination was voluntarily dismissed. On November 26, 1956, appellant and his family left Budapest for Austria. In Salzburg, Austria, at the request of American Immigration Officers who had interviewed the escapees, appellant executed a written application for himself and his family for parole into the United States pursuant to Section 212(d) (5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(d) (5). This application was approved and appellant, his wife and two daughters were paroled into the United States. They arrived at Camp Kilmer, New Jersey, on December 24, 1956 and thereafter settled in Baltimore, where appellant obtained employment as a milkman. On February 21, 1957, and on three separate occasions thereafter appellant was interrogated concerning his activities in Hungary, and the circumstances attendant upon his making application for parole into the United States. Three of these interviews were conducted by an investigator for the Immigration and Naturalization Service, and the last one was conducted by an Immigrant Inspector. Each of these interviews was of the question and answer type, with appellant speaking through an interpreter, and at none of them was appellant represented by counsel. As a result of the interrogation in February, 1957 and of those held on March 5, 1957, and July 11, 1957, the immigration officials learned that appellant had been a member of the Communist Party after his release from a concentration camp in 1953. In fact, appellant readily acknowledged this, although the only Party membership noted on his application for parole was during the period from 1947 through 1949. At several times during these interrogations appellant explained that this discrepancy arose because the official in the Consul’s office to whom he told the whole story felt it was sufficient if only the first period of his Party membership were listed. This official then filled in the part of appellant’s application for parole, entitled “Political Organizations.” While it is clear to us from an examination of this application that the information regarding Communist Party membership was written by someone other than appellant, the truthfulness of appellant’s explanation remains an open question, especially in view of the statement made by appellant at one point in the questioning on July 11, 1957, that he did not mention his Party membership subsequent to his release from the concentration camp on his parole application “because I knew that if I did not put that in the application I would not have any trouble.” On August 14, 1957, the Acting Regional Commissioner for the Southeast Region revoked appellant’s parole on the basis of the alleged concealment and misrepresentation regarding Communist Party membership brought to light by the immigration official’s interrogation, and also ordered that “the necessary steps be taken looking to (appellant’s and his family’s) return to Austria * * Thereafter appellant was taken into custody by immigration officials, but on August 26, 1957, a writ of habeas corpus seeking a hearing for appellant was allowed by the District Court. On August 27, 1957, appellant appeared before an Immigrant Inspector, who questioned him along the same lines as had the immigration investigator on the three previous occasions. Appellant again stated that he had told officials in Austria of his two periods of membership in the Communist Party and said he had not on July 11, 1957 told the investigator that he had wilfully concealed [612] this information when he was questioned in Austria. He claimed that the interpreter must have mistaken what he did say and thus the translation was incorrect. However, on September 6, 1957, an order that appellant “be excluded and deported,” without a hearing, was issued on the basis of “information * * * of a confidential nature, the disclosure of which would be prejudicial to the public interest, safety or security.” Subsequently, on September 13, 1957, this exclusion and deportation was withdrawn since the Acting Regional Commissioner learned that there were “sufficient bases for the exclusion of (appellant), apart from the confidential information warranting exclusion and deportation without hearing * * Appellant’s case was referred to a Special Inquiry Officer for determination of appellant’s “admissibility or excludability.” The writ of habeas corpus allowed on August 26, 1957, was then dismissed upon a stipulation approved by the District Court. An exclusion hearing, at which appellant was represented by counsel, was held on September 20, 1957. The proceedings were limited, however, to the question of whether or not appellant had a valid immigration visa. Upon appellant’s admission that he had never been in possession of such a visa the Special Inquiry Officer found him to be inadmissible to the United States under Section 212(a) (20) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a) (20). An appeal from this determination taken to the Board of Immigration Appeals was dismissed on October 22, 1957. A new writ of habeas corpus, allowed on October 26, 1957, was, after argument, dismissed as to appellant by the District Court on November 26, 1957. The appeal now before us was taken from this dismissal of the writ. Thus the facts may be summarized as follows: in order to find some sort of temporary or permanent asylum in the United States, and in response to what must have appeared to them to be a generous and humanitarian invitation from a freedom-loving people, this family of Hungarian refugees came here as parolees. They had no visas when they left Austria, and the United States officials handling the matter knew at all times that they had no visas and were not expected to have any visas. Having raised the issue of whether Gyula Paktorovics had communistic or subversive tendencies, all of which he vigorously denied, the issue of his communist connections was abandoned, and he was ruled to be deportable on the sole ground of his failure to produce the visa which everyone knew all along he did not possess. The wife and the two daughters are to be permitted to remain here; but the husband and father must go. The effect of this ruling, if upheld, may be disastrous to the balance of the 30,000 odd Hungarian parolees, who will then be permitted to remain in the United States only so long as the Government officials, who decided that Pak-torovics must go, refrain from making a similar decision as to the others. Moreover, if the Government position is sustained, any one or all of this large number of Hungarians who fled from the might of Soviet Russia must leave our shores on the mere say-so of a Government official, however unreasonable or capricious this say-so may be, and even if there is no basis whatever for such a ruling. None of them have any visas; and the only hearing to which any of these parolees will be entitled under the law, as thus interpreted, will be a hearing to determine the already obvious fact that they have no visas. We cannot agree that such is the law. Under the special circumstances of the case of these Hungarian refugees, we think their parole may not be revoked without a hearing at which the basis for the discretionary ruling of revocation may be contested on the merits. Appellant argues that Section 212(d) (5), 8 U.S.C.A. § 1182(d) (5), in the light of certain sections of the Immigration and Nationality Act, 8 U.S.C.A. § 1101 et seq., which do not by their terms provide for a hearing, requires that a hearing be had on the subject [613] of revocation of parole, at least in the case of the Hungarian refugees. He also notes the President’s directive of December 1, 1956 referred to in his Message to the Congress on January-31, 1957 which reviews the sad plight of the “(t)housands of men, women, and children (who) have fled their homes to escape Communist suppression,” mentions the fact that most of the refugees have been admitted “only temporarily on an emergency basis,” that some “may ultimately decide that they should settle abroad," but “many will wish to remain in the United States permanently.” In the meantime, the President adds, “(P)rompt action by the Congress is needed looking toward the revision and improvement” of the Immigration and Nationality Act. 103 Cong.Rec. 1355. Appellant also contends that he is entitled to procedural due process in any event, and thus to a hearing on the subject of revocation of parole, even if we should not adopt his interpretation of Section 212(d) (5), 8 U.S.C.A. § 1182 (d) (5), pursuant to the terms of which the Hungarian refugees were paroled into this country.1 The position of the Government, on the other hand, is that this is an exclusion case pure and simple, that the expulsion cases have no bearing on the problem before us, and that it has been held again and again that the parole of a person seeking entry into the United States is nothing more nor less than an “enlargement” of the place of detention or temporary refuge ashore, for which purpose Ellis Island had long been used, pending determination of an alien’s application for admission into the United States. Thus, argues the Government, an alien physically present in the United States on parole is, nevertheless, “in contemplation of law” still outside this country and subject to the same treatment, after the Attorney General has exercised his discretion to revoke that alien’s parole, as is accorded an alien en route from foreign soil. On the basis of this reasoning it is claimed that appellant has no constitutional rights, and is not within the protection of the Due Process Clause of the Fifth Amendment, citing Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585, and two lower court cases the holdings of which have been sustained by the recent Supreme Court decision in Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246. Largely on the basis of the decisions just referred to, and the absence of any clause in Section 212(d) (5), 8 U.S.C.A. § 1182(d) (5) stating in so many words that a hearing must be had, the Government insists that no hearing other than the barren formality here resorted to need be had in instances where aliens paroled into the United States pursuant to Section 212(d) (5), 8 U.S.C.A. § 1182(d) (5), are to be deported after the revocation of the parole by the Attorney General. But we think this case is different. By reason of the circumstances under which the Hungarian refugees were paroled into the United States this case in sui generis. We are mindful of the opening paragraph of the President’s Message to the Congress, above referred to: “The eyes of the free world have been fixed on Hungary over the past 2% months. Thousands of men, women, and children have fled their homes to escape Communist oppression. They seek asylum in countries that are free. Their opposition to Communist tyranny is evidence of a growing resistance throughout the world. Our position of world leadership demands that, in partnership with the other nations of the free [614] world, we be in a position to grant that asylum.” It is well established law that aliens, even those who have entered the United States illegally, are entitled to the full protection of the constitutional requirements of due process in deportation proceedings. Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576; The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956. The principles underlying those decisions are applicable here, despite the fact that the proceeding is in form one of exclusion rather than expulsion. If this means an extension of the doctrine that aliens as well as citizens are entitled to the protection of procedural due process in deportation proceedings so as to include within the protected class of persons parolees who have come to the United States as have the Hungarian refugees of whom appellant is merely one of thousands, we do not hesitate to take that forward step, in view of all the circumstances of this case to which reference has been made. What makes this case different from other exclusion cases, such as United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956; Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246, and Rogers v. Quan, 357 U.S. 193, 78 S.Ct. 1076, 2 L.Ed.2d 1252, is that Paktorovics was invited here pursuant to the announced foreign policy of the United States as formulated by the President in his directive of December 1, 1956, referred to in his Message to the Congress, of January 31, 1957, from which we have already quoted. Furthermore, the Congress has recently enacted legislation endorsing the extraordinary action of the President with respect to these Hungarian refugees. See Public Law 85-559, 72 Stat. 419 (approved July 25, 1958). True it is that the President has no power to change the law by inviting Paktorovics and the other Hungarian refugees to come here, but this is not to say that the tender of such an invitation and its acceptance by him did not effect a change in the status of Pak-torovics sufficient to entitle him to the protection of our Constitution. We also hold that, in order to bring Section 212(d) (5), 8 U.S.C.A. § 1182 (d) (5), “into harmony with the Constitution,”2 a hearing is required prior to the revocation of parole when this section is applied to persons situated in the United States as is appellant in the case at bar. Section 212(d) (5) provides: “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.” We are not persuaded by appellant’s argument that the requirement of such a hearing is to be implied from the language of the section merely because hearings have been authorized by regulations promulgated pursuant to the Immigration and Nationality Act as a preliminary to the exercise of discretion by the Attorney General in withholding deportation, suspending deportation, au [615] thorizing voluntary departure in lieu of deportation, and adjusting an alien’s immigrant status. We find no relation between the hearings authorized by appropriate regulations to aid the Attorney General in exercising his discretion to withhold the deportation of an alien who otherwise is likely to be subjected to physical persecution, Section 243(h), 8 U.S.C.A. § 1253(h), or to adjust the status of an alien so as to give that person a more favorable position with reference to the administration of the immigration laws, Sections 244 and 245, 8 U.S.C.A. §§ 1254, 1255, and the hearings sought by appellant as a condition precedent to the Attorney General’s exercising his discretion to revoke parole in order to place appellant in a position more amenable to deportation. The Attorney General is given authority to “establish such regulations * * * as he deems necessary for carrying out his authority” under the Act, Section 103, 8 U.S.C.A. § 1103, and the promulgation of regulations providing for a hearing prior to the exercise of discretion under certain sections of the Act does not dispose of the question of whether or not a hearing is required with regard to the matters involved in other sections of the Act with respect to which no such regulations have been formulated. However, the grave constitutional implications of a decision that appellant is not entitled to the hearing he seeks are clear. Were the views advanced by the Government adopted it is difficult to see how the statute, interpreted to authorize deportation of appellant without a hearing on the merits, could satisfy the requirements of due process. Accordingly, since a construction of Section 212(d) (5), 8 U.S.C.A. § 1182(d) (5), which requires a hearing on the subject of revocation of parole will remove serious doubt regarding the validity of the statute, we so construe the section and hold that appellant is entitled to a hearing prior to the revocation of his parole. United States v. Witkovich, 353 U.S. 194, 201-202, 77 S.Ct. 779, 1 L.Ed.2d 765; also Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576; Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. We do not say that the discretion of the courts should be substituted for the discretion to be exercised by the Attorney General as provided by law. We do say that there must be a hearing which will give assurance that the discretion of the Attorney General shall be exercised against a background of facts fairly contested in the open. Reversed and remanded. Footnotes [1] “On December 1, I directed that above and beyond the available visas under the Refugee Relief Act — approximately 6,-500 in all — emergency admission should be granted to 15,000 additional Hungarians through the exercise by the Attorney General of his discretionary authority under section 212(d) (5) of the Immigration and Nationality Act; and that when these numbers had been exhausted, the situation be reexamined.” Message from the President of the United States to the Congress, January 31, 1957, 103 Cong.Rec. 1355. [2] The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 615, 47 L.Ed. 721,