The opinion of the court was delivered by: KAUFMAN
Relators, Gyula Paktorovics, his wife, Szeren Paktorovics, and their two minor daughters are purported fugitives from the terrorism and persecution imposed upon the Hungarian people by Russia's brutal suppression of the insurrection that swept Hungary in the fall of 1956. Fleeing to Austria the relators were there interviewed by American Immigration Officers for possible admission into the United States. Upon request of American officials Gyula Paktorovics executed a written application in the English and Hungarian language for parole into the United States for himself and his family 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 the Paktorovics family was paroled into the United States. They arrived here December 24, 1956 and settled in Baltimore where the husband obtained employment as a milkman.
Beginning in February 1957, the husband was interrogated on several occasions by the officers of the Immigration and Naturalization Service. At one of these meetings he admitted membership in the Communist Party from 1954 until the day he left Hungary for Austria. When confronted with his application for parole, Executed in Austria, in which he acknowledged membership in the Party only up to 1949, the male relator conceded the inconsistency and stated conceded the inconsistency and stated he withheld information of his subsequent Communist affiliation in fear that such a revelation would result in a denial of his application. As a result of the information gleaned from this interview the Acting Regional Commissioner for the South Eastern Region of the Immigration and Naturalization Service of Richmond, Virginia, entered an order on August 14, 1957, revoking his temporary parole upon the ground that he had misrepresented material facts to the American authorities in Austria bearing upon his application for admission to the United States and ordered that the necessary steps be taken to insure his return to Austria. In the interest of maintaining the family unit, the Commissioner further decreed the revocation of the parole of the wife and two children so that they could accompany the husband and father back to Austria.
Relators were subsequently taken into custody in Baltimore and transferred to the immigration detention station in New York to await return to Austria.
On August 26, 1957, the husband petitioned for a writ of habeas corpus on the ground that his expulsion from the United States without a hearing was a violation of due process of law. Thereupon and prior to the return of the writ the Immigration Service invoked Section 235(c) of the Act (8 U.S.C.A. § 1225(c)), providing for expulsion of an alien without a hearing where inadmissibility is based on confidential information which would be inimical to public welfare and the Acting Regional Commissioner found the relators excludable under Section 212(a)(28) of the Act. 8 U.S.C.A. § 1182(a)(28) (for past membership in the Communist Party). Subsequently upon reexamination the Acting Commissioner determined that there was sufficient basis for the exclusion of relators apart from the confidential information and withdrew the exclusion order without a hearing agreeing to grant such a hearing pursuant to Section 236 (8 U.S.C.A. § 1226).
Thereafter, by stipulation the writ of habeas corpus seeking a hearing was dismissed.
At the 236 hearing at which the relators were represented by counsel, the inquiry was confined, over the strong protestations of counsel, to the question of whether the immigrants were in possession of valid unexpired entry documents. This question being determined in the negative, relators were found inadmissible under Section 212(a)(20) (8 U.S.C.A. § 1182(a)(20)). An appeal from this order was dismissed by the Board of Immigration Appeals and the relators have been taken into custody for the execution of the exclusion order.
By the instant petition for habeas corpus relators challenge the constitutionality of the above proceedings on grounds that: (1) Revocation of parole without a hearing is a denial of due process of law; (2) An exclusion hearing limited only to the question of possession of entry documents is denial of due process of law, and (3) Revocation of temporary parole and attempted exclusion of the wife and daughters because of their relationship to the husband without asserting any case against them is arbitrary and capricious and denial of due process of law.
I shall consider these contentions seriatim.
The relators were paroled into the United States under Section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(d)(5). That section provides as follows:
'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.'
The unrest and chaos in Austria which came about as a result of the insurrection of the Hungarian people in the fall of 1956, constituted a sufficient emergent reason for the parole of deserving bona fide Hungarian refugees, pending such appropriate legislation as Congress might enact to clarify their status. The initial screening process in Austria, designed to select only those deserving of refuge in the United States, was conducted under a setting which called for urgency in relocating the great sea of refugees that had inundated Austria. Consequently, this initial screening process was by necessity incomplete at best and it was expected that further screening would be continued in this country. It is relators' contention that revocation of the parole provisionally granted in Austria, cannot consistent with due process be accomplished without a fullfledged hearing.
In considering the scope of the due process clause in this context, it is necessary to carefully distinguish a resident alien physically present in the United States who is within the full protection of the constitution and the alien regarded in contemplation of law as outside the country who stands outside the full reach of the Fifth Amendment. Compare Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S. Ct. 625, 97 L. Ed. 956; United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S. Ct. 309, 94 L. Ed. 317 with Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 73 S. Ct. 472, 97 L. Ed. 576. The alien outside the country seeking admission does not do so under any claim of right. Admission to the United States is a privilege granted by the sovereign United States Government only upon such terms as Congress shall prescribe. Consequently, where an alien is treated as being physically outside the country, any due process required in exclusion proceedings is co-extensive with the procedure authorized by Congress. Brownell v. Tom We Shung, 1956, 352 U.S. 180, 182, note 1, 77 S. Ct. 252, 1 L. Ed. 2d 225; United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at pages 543-544, 70 S. Ct. 309, 94 L. Ed. 317; Nishimura Ekiu v. United States, 1892, 142 U.S. 651, 12 S. Ct. 336, 35 L. Ed. 1146; Ludecke v. Watkins, 1948, 335 U.S. 160, 68 S. Ct. 1429, 92 L. Ed. 881.
An arriving alien's temporary harborage ashore pending determination of his admissibility is an act of grace and bestows no additional rights. Where Congress has prescribed that an alien's shelter ashore 'shall not be considered a landing' the courts have 'long considered such temporary arrangements as not affecting an alien's status; he is treated as if stopped at the border.' Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 215, 73 S. Ct. 625, 631, 97 L. Ed. 956. Since § 212(d)(5) explicitly directs that parole is not to be regarded as an admission into the United States, it must be treated as simply an enlargement of the bounds of such shelter ashore. The paroled alien remains 'still in theory of law at the boundary line' and has 'gained no foothold in the United States' until lawfully admitted.
It follows that any rights a parolee may have are not derived from the Constitution but are limited solely to those rights and privileges which Congress in its wisdom sought to confer.
I must therefore examine the statutory design of § 212(d)(5) to ascertain whether Congress contemplated a hearing in these situations. If the statutory procedure is followed the relators will have been accorded all the due process required. It is significant in this respect that in the Immigration and Nationality Act, Congress elsewhere provided for a hearing procedure in determining alien admissibility or excludability (Sections 235(a)(b), 236, 242(b) of the Immigration and Nationality Act, 8 U.S.C.A. §§ 1225(a)(b), 1226, 1252(b)) without making reference to the temporary parole provisions. The fact that both the parole provisions and the applicable regulations thereunder are conspicuously silent on this point is certainly evidence of both a Congressional and Executive intent to withhold a hearing as of right. See Jay v. Boyd, 1956, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242. Absent this Congressional intent, the relators cannot insist upon a hearing.
To argue as do relators that a right ...