Before MEDINA, WATERMAN and MOORE, Circuit Judges.
This is an appeal from an order of the United States District Court for the Southern District of New York granting a motion by the District Director of the Immigration and Naturalization Service, defendant below, for summary judgment, 206 F.Supp. 558. The action was commenced to review an administrative order denying appellant's application under Section 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h), for a stay of his deportation to Yugoslavia. The primary question presented is whether the Attorney General, through his delegate, the Regional Commissioner of the I.N.S., correctly interpreted the statutory standard in ruling that appellant would not be subject to "physical persecution" were he deported to Yugoslavia.
Stefano Sovich was born in 1925 in the City of Cres, on the Istrian Peninsula. The territory was then in Italy and now is part of Yugoslavia. In 1956, Sovich, after several unsuccessful attempts, escaped from Yugoslavia and fled to Italy, where he was received as a refugee and where he remained for one year. In 1957 he found employment on a Panamanian vessel and, on October 12, 1958, entered the United States as a non-immigrant crewman for a 29-day period of shore leave.
On January 16, 1959, Sovich having remained in the United States for a longer period than authorized, was served with an order to show cause why he should not be deported. At his deportation hearing, appellant conceded deportability, but was granted, upon request, the privilege of voluntary departure to Italy. 8 U.S.C. § 1254(e). When it subsequently appeared that Sovich would not be admitted to Italy, however, his deportation to Yugoslavia was ordered. 8 U.S.C. § 1253(a).
On September 22, 1959, Sovich applied to the Attorney General for a stay of deportation pursuant to Section 243(h), which provides:
"The Attorney General is authorized 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."
Appellant was thereafter interrogated, on October 9, 1959, by a Special Inquiry Officer of the Immigration and Naturalization Service in accordance with the regulations of the Attorney General then in effect. 8 C.F.R. 243.3(b) (2) (1958).
In his testimony before the Special Inquiry Officer Sovich told of his life in Yugoslavia, of his opposition to Communism on religious and political grounds, of statements against the regime which he had made to friends, of being questioned by the Yugoslav officials and warned against further opposition to the regime, and, finally, of his escape from Yugoslavia and flight to Italy. Appellant further testified that he feared he would be imprisoned for his anticommunistic beliefs and statements, or for his illegal departure from the country, in the event of his return to Yugoslavia.
On October 21, 1959, the Special Inquiry Officer recommended a denial of appellant's application on the ground that Sovich had failed to establish that he would be subject to physical persecution if deported to Yugoslavia. The officer stated:
"Since the applicant was not in any way mistreated after these alleged utterances were reported to the authorities, it seems reasonable to believe that he would not now be persecuted therefor upon his return. While it may be true that he may be punished for his illegal departure from Yugoslavia such punishment is not the physical persecution contemplated by the statute. The statute contemplates persecution visited upon the alleged offender in the form of corporal punishment, torture or death because of race, religion or political opinion. Here the punishment which the applicant fears he might suffer would apparently be after conviction for a crime cognizable under the recognized juridical system. That is not persecution."
The Regional Commissioner for the Northeast Region of the I.N.S. (to whom the Attorney General had delegated his authority under the administrative system then in effect, 8 C.F.R. § 243.3(b) (2) (1958)), concurred in the opinion of the Special Inquiry Officer, and ordered that Sovich's application under Section 243(h) be denied.
Appellant thereupon commenced this action in the District Court and seeks a declaration that the denial of his application was based upon an erroneous interpretation of Section 243(h).
We are confronted, at the outset, with the problem of determining the scope of our powers to review actions of the Attorney General, or his delegates, under Section 243(h) of the Immigration and Nationality Act of 1952.
In United States ex rel. Leong Choy Moon v. Shaughnessy, 218 F.2d 316, 318 (2 Cir. 1954), we stated that "In the field of immigration and nationality Congress has vested the executive branch of the Government with wide discretionary powers, and the scope of judicial review is closely circumscribed." The language of Section 243(h) itself makes clear that the decision whether an alien would be physically persecuted on return to his native country rests solely with the Attorney General or his delegate. Ibid.; Blazina v. Bouchard, 286 F.2d 507, 511 (3 Cir. 1961), cert. denied, 366 U.S. 950, 81 S. Ct. 1904, 6 L. Ed. 2d 1242. "The very nature of the decision * * * concerning what the foreign country is likely to do is a political issue into which the courts should not intrude." United States ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 395 (2 Cir. 1953); see Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S. Ct. 431, 92 L. Ed. 568 (1948). In formulating that decision, the Attorney General has access to, and may under appropriate circumstances rely upon, State Department material and intelligence information which is unavailable to a reviewing court. Diminich v. Esperdy, 299 F.2d 244, 246 (2 Cir. 1961), cert. denied, 369 U.S. 844, 82 S. Ct. 875, 7 L. Ed. 2d 848 (1962); United States ex rel. Dolenz v. Shaughnessy, supra; see Jay v. Boyd, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956). Moreover, as with the Attorney General's power to suspend deportation under Section 244(a) of the Act, the favorable exercise of his discretion to withhold deportation under Section 243(h) "is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace." Jay v. Boyd, 351 U.S. at 354, 76 S. Ct. at 924; Chao-Ling Wang v. Pilliod, 285 F.2d 517, 520 (7 Cir. 1960); Zupicich v. Esperdy, 207 F.Supp. 574, 581 (S.D.N.Y.1962).
Nevertheless, the applicant under Section 243(h) is not without rights which may be judicially enforced when, as here, the refusal of the Attorney General to stay deportation is challenged in a suit for declaratory judgment. The applicant is entitled to procedural due process. United States ex rel. Leong Choy Moon v. Shaughnessy, supra. He has a right to have his application considered, Blazina v. Bouchard, supra, and this consideration must be given in conformity with the pertinent regulations promulgated by the Attorney General himself. Milutin v. Bouchard, 370 U.S. 292, 82 S. Ct. 156, 8 L. Ed. 2d 501 (1962). The denial of his application must not have been "actuated by considerations that Congress could not have intended to make relevant." Cf. United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2 Cir. 1950); Blazina v. Bouchard, 286 F.2d at 511.
Whether the courts, in reviewing action under Section 243(h), may properly consider the standard employed by the Attorney General's delegates, as distinguished from procedural fairness, is a question not yet expressly ruled upon in this circuit. Cf. Diminich v. Esperdy, 299 F.2d 244, 248 (2 Cir. 1961). In Dunat v. Hurney, 297 F.2d 744 (1961), [297 F.2d 753 (1962) on rehearing in banc], the Third Circuit ruled that the proper interpretation of the phrase "physical persecution" in Section 243(h) is a question of law "peculiarly appropriate for independent judicial ascertainment." 297 F.2d at 746. The court there held that the Attorney General's delegate had erroneously interpreted the provision in stating that "the fact that the applicant might be denied employment for church membership or for failure to join the Communist Party is * * * not within the import of the term 'physical persecution.'" Ibid.
In other cases the courts have expressly approved the Attorney General's construction of Section 243(h), thereby indicating their willingness to entertain an attack upon the standards employed in its administration. E.g., Diminich v. Esperdy, 299 F.2d 244, 246 (2 Cir. 1961) ("* * * Diminich's claims were simply of 'difficulties'; repugnant as we find such interference with religious observance and freedom of association to be, 'difficulties' are not the 'physical persecution' which Congress chose to make the sole factor warranting a stay of deportation * * *"); Blazina v. Bouchard, 286 F.2d 507, 511 (3 Cir. 1961) ("At worst, it appears that [appellant] will be 'looked down upon' and will encounter some 'complications'. * * * The repugnance of such a governmental policy to our own concepts of religious freedom cannot, however, justify our labelling such actions as 'physical persecution'. Nor can the three-month prison sentence to which Blazina may be subjected as punishment for deserting his ship or his country illegally be termed physical persecution. The phrase 'physical persecution' should be taken to mean confinement, torture or death inflicted on account of race, religion, or political viewpoint." Chao-Ling Wang v. Pilliod, 285 F.2d 517, 520 (7 Cir. 1960) ("A prosecution before a military tribunal convened pursuant to laws of a foreign state to try offenses committed by a member of the military forces of that country, cannot be construed to be physical persecution under [Section 243 (j)].").
Persuasive authority for our power topreview administrative interpretations of § 243(h) may be drawn from cases in which the courts have independently construed related provisions in the Immigration and Nationality Act of 1952 or the Immigration Act of 1917. Under § 244(a) of the Act of 1952, 8 U.S.C. § 1254(a), [formerly 19 (c) of the Immigration Act of 1917, 8 U.S.C. § 155(c)] the Attorney General is given the discretionary power to suspend deportation in the case of certain aliens who have continuously resided in the United States for some years prior to their application for relief, who have proved their "good moral character" during that period, and "whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship * * *." 8 U.S.C. § 1254(a). As in the case of withholding deportation under § 243(h), the favorable exercise of the Attorney General's power to suspend deportation under § 244(a) is a matter of grace and rests within the sole discretion of the Attorney General or his delegate. Jay v. Boyd, 351 U.S. 345, 354, 76 S. Ct. 919, 100 L. Ed. 1242 (1956); Cavallaro v. Lehmann, 264 F.2d 237 (6 Cir. 1959). Again, as under Section 243(h), the Attorney General may rely upon confidential information, unavailable to the applicant or a reviewing court, in considering an application to suspend deportation under Section 244. Jay v. Boyd, supra; United States ex rel. Matranga v. Mackey, 210 F.2d 160 (2 Cir. 1954), cert. denied, 347 U.S. 967, 74 S. Ct. 778, 98 L. Ed. 1109.
Nevertheless, the courts have repeatedly granted relief to deportable aliens where it has appeared that the Attorney General has misconstrued the limits or terms of his discretionary power under § 244(a) or its predecessor statute.
In McLeod v. Peterson, 283 F.2d 180 (3 Cir. 1960), petitioner had been denied suspension of deportation under § 244(a) (2) on the ground that he had not been "present in the United States for a continuous period of * * * five years" as required by the statute. Ruling that petitioner's temporary absence from the country was caused by an initial "erroneous deprivation of the appellant's right to discretionary relief," the court held that his departure, under those circumstances, did "not interrupt the continuity of his presence in the United States within the meaning of that specific statutory provision." 283 F.2d at 187. The court thereupon directed that appellant's deportation be stayed pending a new application to the Attorney General for discretionary relief. In United States ex rel. Exarchou v. Murff, 265 F.2d 504 (2 Cir. 1959), this court granted similar relief under § 19(c) of the Immigration Act of 1917, holding that the Attorney General, through his delegate, had erroneously denied appellant's application for suspension of deportation on the ground that appellant had failed to prove his good character. "The statute," we said, "makes good character itself, not a reputation for it, the finding necesary to the Service's decision. * * * Thus we cannot accept the Service's alternative conclusion that, even if Exarchou truthfully described his conduct, 'a married man is not free to carry on such a relationship and still be considered one of good character.'" 265 F.2d at 507.
In Pagano v. Brownell, 227 F.2d 36 (D.C.Cir.1955), appellant had been denied suspension of deportation under § 19 on the ground that a prior criminal conviction involved moral turpitude and thus rendered him ineligible for discretionary relief. Finding in subsequent actions of the Attorney General's delegate some indication that appellant's prior conviction had not involved moral turpitude, the Court of Appeals for the District of Columbia remanded the cause, directing that the district court "should determine whether * * * the Attorney General had discretion to suspend appellant's deportation, and if so, should direct him to exercise it." 227 F.2d at 37. And see United States ex rel. Zacharias v. Shaughnessy, 221 F.2d 578 (2Cir. 1955).
The Supreme Court has itself undertaken to review statutory constructions of the Attorney General in deportation cases where discretionary relief was denied. See McGrath v. Kristensen, 340 U.S. 162, 71 @S. Ct. 224, 95 L. Ed. 173 (1950) (holding that because of erroneous construction of a related statute, the Attorney General unjustly refused to suspend appellant's deportation under § 19(c) of the Immigration Act of 1917); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S. Ct. 618, 1 L. Ed. 2d 652 (1957) ("[it] is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation.") And see Delgadillo v. Carmichael, 332 U.S. 388, 68 S. Ct. 10, 92 L. Ed. 17 (1947); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S. Ct. 374, 92 L. Ed. 433 (1948).
Reason as well as authority supports the position that the standards employed by the Attorney General in exercising his discretion under § 243(h) are subject to judicial review. The Attorney General's assessment of the conditions obtaining in any particular contry, is, of course, a political matter, a "question of fact." It is equally clear, we believe, that the standards by which those conditions are to be judged - what Congress menant by the expression "physical persecution" - is a question of law. For the courts to rule upon that issue is not an intrusion ...