371 F. 2d 738 - Attorney General v. Bufalino

Appellee is an Italian citizen who was ordered deported in 1958; that order is not at issue here. See Bufalino v. Holland, 3 Cir., 277 F.2d 270, cert. denied, 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85 (1960). When his applications for discretionary administrative relief under Sections 243(h)1 and 2492 of the Immigration and Nationality Act proved unavailing, Bufalino charged in the District Court and then in this court that the Immigration officials had prejudged his case. This court granted appellee's request for an evidentiary hearing in the District Court on the prejudgment claim, relying on United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). See Bufalino v. Kennedy, 116 U.S.App.D.C. 266, 322 F.2d 1016 (1963).

Before that hearing could materialize, the parties agreed to a stipulation which provided that administrative proceedings would be reopened before a special inquiry officer under currently applicable regulations, with Bufalino being permitted to renew his requests for relief, to assert new bases for relief,3 and to raise the prejudgment issue in the administrative proceedings. We approved the stipulation in an order dated October 14, 1963; the District Court remanded the case to the Immigration Service pursuant to the stipulation and dismissed the action on consent of the parties. Bufalino v. Kennedy, D.D.C., Civil Action No. 486-61 (October 31, 1963).

At the outset of the new proceedings appellee challenged the special inquiry officer as having prejudged the case and requested an evidentiary hearing. The officer denied both the charge and the request. On March 17, 1965, the officer denied appellee's requests for discretionary relief; the Board of Immigration Appeals affirmed. Appellee then moved in the District Court for an order to enforce its prior mandate, contending that the court's direction for an administrative evidentiary hearing on the prejudgment question had been disregarded; the motion was granted. On appeal to this court the Government contends that the District Court acted without jurisdiction. We confine ourselves solely to the jurisdictional question.

Section 106(a) of the Immigration and Nationality Act4 places exclusive jurisdiction to review final orders of deportation in the appropriate Court of Appeals.5 Interpreting 106(a), the Supreme Court has held that denials of discretionary relief of the kind we have in this case constitute such final orders. Foti v. Immigration & Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). See also Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964). Moreover, the Court has said that 'all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals,' are within the ambit of 106(a). Foti v. Immigration & Naturalization Service, supra, 375 U.S. at 229, 84 S.Ct. at 314. Consequently, and appellee has not actually urged otherwise, it seems clear that questions relating to a claim of prejudgment made against a special inquiry officer are governed by 106(a).

Appellee contends, however, that 106(a) does not apply here because the present litigation is but a continuation of the proceedings that led to our decision in Bufalino v. Kennedy, 116 U.S.App.D.C. 266, 322 F.2d 1016 (1963), and that the District Court thus retained jurisdiction to enforce its mandate issued pursuant to that decision. We do not agree. The fact is that the District Court, on agreement of the parties, dismissed the earlier case, after remanding it to the Immigration Service for a new and different administrative proceeding. For the District Court and this court now to assert jurisdiction over this segment of appellee's attack on the new proceedings would defeat the fundamental purpose behind 106(a), which was to consolidate review of deportation orders in a single forum and thus 'to abbreviate the process of judicial review * * * in order to frustrate certain practices * * * whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts.' Foti v. Immigration & Naturalization Service, supra, 375 U.S. at 224, 84 S.Ct. at 311.

We hold, therefore, that the District Court here was without jurisidiction. Its order will be reversed and the proceedings will be dismissed.

So ordered.