Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.
Foti is a resident alien who entered this country on a seaman's visa and stayed illegally for ten years, leaving his wife and three children in Italy. When deportation proceedings were instituted, he conceded his deportability, but applied to the Attorney General for relief under § 244(a) (5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1254(a) (5), which provides that "the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who * * * is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien * * *." The Attorney General, through his Special Inquiry Officer, ruled that Foti did not qualify as a case of "exceptional and extremely unusual hardship," and therefore that no ground to exercise the granted discretion arose, but permitted voluntary departure. The decision was upheld by the Board of Immigration Appeals, and Foti now seeks to have us review it under § 106 of the Act, 8 U.S.C.A. § 1105a, enacted Sept. 26, 1961, 75 Stat. 651, providing for review of final orders of deportation by courts of appeals by petition for review brought within six months.
Although the Immigration and Naturalization Service joins the petitioner in urging us to assume jurisdiction, in contrast to the position it has taken elsewhere, the matter is one that we must determine on our own account. The panel which heard the case upheld jurisdiction by a 2-1 vote, Judges Clark and Hincks forming the majority and the writer dissenting. Because of the important consequences of a decision that the recent Congressional grant to the courts of appeals of exclusive jurisdiction to review "final orders of deportation" was not in fact limited to such orders, as the language of the statute would indicate, but extended also to the variety of discretionary orders withholding or suspending deportation which the Attorney General is authorized to make, this case and the companion case of Ng Yen, 308 F.2d 796, were deemed appropriate for in banc consideration. This has resulted in a determination, four judges dissenting, that we have no jurisdiction, the majority believing that although decision either way has its difficulties, there is no sufficient reason for expanding the words used by Congress beyond their well-understood meaning.
The text we must construe is § 106, added to the Immigration and Nationality Act of 1952 in 1961, 75 Stat. 651, 8 U.S.C.A. § 1105a. This directs, § 106(a), that "The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.)," providing for review in the courts of appeals of certain orders of the Federal Communications Commission, the Secretary of Agriculture, the Federal Maritime Board (and its predecessors), and the Atomic Energy Commission, "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act or comparable provisions of any prior Act * * *"
Section 242 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1252, sets up a comprehensive procedure to determine the deportability of an alien. Section 242(b), into which the new statute is expressly keyed, directs that "A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien," states in great detail how this shall be done, and lays down that "The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section." This specification of procedural safeguards is immediately followed by § 242(c), providing that "When a final order of deporation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States * * *"; during that period the alien may be detained. Section 242(d) adds that "Any alien, against whom a final order of deportation as defined in subsection (c) of this section, heretofore or hereafter issued has been outstanding for more than six months, shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General", and § 242(e) imposes a criminal penalty upon "Any alien against whom a final order of deportation is outstanding by reason of being a member of any of the classes" described in certain paragraphs of § 241(a) who wilfully fails or refuses to depart "within a period of six months from the date of the final order of deportation under administrative processes, or, if judicial review is had, then from the date of the final order of the court * * *" When Congress, in 1961, gave the courts of appeals jurisdiction to review "final orders of deportation * * * made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act or comparable provisions of any prior Act," it was thus using a term of art which had been used repeatedly in § 242 and possessed a well-understood meaning. We have already decided at least two such cases, Dentico v. I.N.S., 303 F.2d 137 (2 Cir. 1962), and Schoeler v. I.N.S., 306 F.2d 460 (2 Cir. 1962), where a "final order of deportation" was challenged, see also fn. 3 to Judge Clark's dissenting opinion.
Under the "prior [Acts]," 39 Stat. 889-890 (1917) and 43 Stat. 162 (1924), deportation, once determined, was generally mandatory. However, Congress has supplemented the deportation provisions contained in such acts and in § 242 of the 1952 Act, by other provisions giving the Attorney General a wide gamut of discretionary withholding and dispensing powers. Section 243(h), 8 U.S.C.A. § 1253(h), authorizes him "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." Section 244(a), 8 U.S.C.A. § 1254(a), provides that he "may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence" in five different categories of cases.*fn1 Sections 244(b) and (c), 8 U.S.C.A. § 1254(b) and (c), direct that when the Attorney General has so suspended deportation, he is to report to Congress. In certain instances the Attorney General is to cancel deportation proceedings unless a house of Congress votes to the contrary; in others he is to deport unless Congress passes a concurrent resolution favoring suspension or if either house passes a resolution not favoring suspension. Finally § 244(e), 8 U.S.C.A. § 1254(e), authorizes the Attorney General "in his discretion" to "permit any alien under deportation proceedings," with certain exceptions, "to depart voluntarily from the United States * * * if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure * * *." A further dispensing power, subject to Congressional concurrence, is conferred by § 6 of the Refugee Relief Act of 1953, as amended, 50 U.S.C.A.Appendix, § 1971d.
The contrast between these sections giving the Attorney General discretion to withhold or suspend the deportation of an alien found to be deportable, and § 242, relating to the determination of deportability, is marked. "The procedure outlined for a determination by the Attorney General or his delegate whether the alien, though subject to deportation shall have the order of deportation withheld, is a different matter," Milutin v. Bouchard, 299 F.2d 50, 51 (3 Cir. 1962), cert. granted and judgment vacated on consent of Solicitor General, 370 U.S. 292, 82 S. Ct. 1562, 8 L. Ed. 2d 501(1962). In fact, the withholding and suspending sections outline no procedure, let alone requiring use of the procedure prescribed by § 242(b), to which the 1961 judicial review amendment is keyed. Whereas a determination of deportability must rest on findings of fact sufficient to bring the alien under a specific provision of law, suspension "is in all cases a matter of grace," resting in the "unfettered discretion of the Attorney General", Jay v. Boyd, 351 U.S. 345, 354, 357-358, 76 S. Ct. 919, 924, 926, 927, 100 L. Ed. 1242 (1956). Nowhere do the withholding or suspension sections use the phrase of the 1961 Act, "final order of deportation" to characterize orders made thereunder, although § 244 does use it in explicit reference to deportation orders made under § 242(b); these sections speak instead of withholding, suspending, or cancelling deportation when the Attorney General exercises his discretion in favor of the alien, and of ultimately deporting the alien when he does not. When the Attorney General refuses to withhold or suspend deportation under these sections, he no more "affirms" the order of deportation than a parole board "affirms" a conviction or sentence when it denies parole, Jay v. Boyd, supra; neither can the former action be fitly described as "ancillary" any more than the latter could be.
So far as the statute itself is concerned, it would thus seem rather plain that the Attorney General's refusal to intervene with respect to a "final order of deportation" made under § 242(b) is not within the provision of the Act of 1961 for direct review of "final orders of deportation" by courts of appeals. To be sure, such orders may be nearer the end of the procedures an alien may invoke prior to deportation, but, were that the test, the warrant itself would be the "final order" - a position maintained by no one. When Congress, in 1961, defined its purpose by using a term having a meaning well understood in practice and repeatedly employed in the Immigration and Nationality Act itself, Congress must be taken to have adopted that meaning - at least in the absence of the clearest proof to the contrary. Yet, especially since the general command of the Administrative Procedure Act as to judicial review, 5 U.S.C.A. § 1009, excepts action which "is by law committed to agency discretion," it would seem in the last degree unlikely that Congress meant to require that a decision resting in executive grace, as to which the scope of any review is so narrow, must be initially reviewed by a court of three judges - a form of review of administrative action normally applied solely to "quasi-judicial" agency determinations made on a record available for the court's inspection, and only to some of those.
Still the Service maintains here, and four of our brothers agree, that a discretionary decision by the Attorney General to do nothing to interfere with a "final order of deportation," a decision to which he is free to come without using the procedures of § 242(b), is itself a "final order of deportation" made pursuant to that section within the meaning of § 106(a). The argument hinges on administrative regulations and on legislative history.
When the 1961 Act was adopted, 8 C.F.R. § 244.1 provided that "Pursuant to Part 242 of this chapter and section 244 of the Act, a special inquiry officer in his discretion may authorize the suspension of an alien's deportation, or authorize an alien to depart voluntarily from the United States * * *" Section 242.8(a) authorized special inquiry officers "to determine deportability and to make decisions including orders of deportation as provided by section 242(b) of the act," and also to exercise a variety of other powers. One of these was "to suspend deportation and authorize voluntary departure as provided by section 244 of the act." Determinations of special inquiry officers under Part 242 were final, § 242. 20, save for certain review by the Board of Immigration Appeals.*fn2 Thus, says the Service here, when Congress enacted § 106 in 1961, it knew that the Attorney General had vested his dispensing powers under § 244 in the same special inquiry officer who, under § 242(b), was to "conduct proceedings * * * to determine the deportability of any alien," and therefore must have intended to include any "determination" made by the special inquiry officer against the alien among the orders made subject to review in the courts of appeals.
To us the "therefore" does not follow. When the 1961 amendment of the Immigration and Nationality Act spoke of "administrative proceedings under section 242(b) of this Act," it meant administrative proceedings which the Act required to be conducted under that section, not other proceedings for which the Attorney General happened to be prescribing the same format that day by regulation, although he could prescribe an altogether different one the next, as, indeed, he was then doing under § 243(h). Moreover, it is only "final orders of deportation" which the Act makes reviewable in the courts of appeals - not any order resulting from use of the § 242(b) form of procedure. Cf. United States ex rel. Daniman v. Shaughnessy, 210 F.2d 564 (2 Cir. 1954).*fn3
The Service argues that its construction would be convenient, would serve the Congressional purpose of dealing with "the growing frequency of judicial actions being instituted by undesirable aliens whose cases have no legal basis or merit, but which are brought solely for the purpose of preventing or delaying indefinitely their deportation from this country," H.R.Rep. No. 1086, 87th Cong., 1st Sess., in 2 U.S. Code Cong. & Adm.News (1961), p. 2967, and would comport with a Congressional intention "to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens * * *" id., p. 2966. When the special inquiry officer, in a single order, has made a final order of deportation under § 242(b), and has declined to suspend it or to authorize voluntary departure under § 244 and determinations under both sections are challenged, bifurcation of the road to review may indeed be inconvenient, and if that were the only case that could arise and nothing else stood in the way, it might be tempting to take whatever liberties with the language of § 106(a) were needed to avoid this. However, neither condition is made out.
This very case illustrates the common situation where, although determinations under both sections have been made by the special inquiry officer in a single disposition, deportability was conceded and the only challenge is to the determination under § 244.*fn4 The likelihood of reversal in such a case, after the decision, in Jay v. Boyd, supra, that "there is nothing in the language of § 244 of the Act upon which to base a belief that the Attorney General is required to give a hearing with all the evidence spread upon an open record with respect to the considerations which may bear upon his grant or denial of an application for suspension to an alien eligible for that relief," 351 U.S. p. 353, 76 S. Ct. p. 924, that "suspension of deportation is not given to deportable aliens as a right, but, by congressional direction, it is dispensed according to the unfettered discretion of the Attorney General," pp. 357-358, 76 S. Ct. pp. 926, 927, and that the statute permits "decisions based upon matters outside the administrative record, at least when such action would be reasonable," p. 358, 76 S. Ct. p. 927, matters which a reviewing court cannot know but of whose existence it must take account, is minimal. Yet, on the Service's construction, an admittedly deportable alien like petitioner may, by filing a petition for review, be entitled to the privilege, hitherto narrowly confined, of having his attack initially considered by three judges, and may obtain an automatic stay unless the court of appeals "otherwise directs," and this despite the provision in § 106(a) (7) that "nothing in this section shall be construed to require the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review of the order granted by this section * * *." Such a view scarcely comports with the Congressional purpose of expedition. Where the challenge is simply to the Attorney General's refusal to exercise a dispensing power, ...