Immigration and Naturalization Service v. Stanisic

PETITIONER:Immigration and Naturalization Service
RESPONDENT:Stanisic
LOCATION:Stanley’s Home

DOCKET NO.: 297
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 395 US 62 (1969)
ARGUED: Feb 25, 1969
DECIDED: May 19, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 25, 1969 in Immigration and Naturalization Service v. Stanisic

Earl Warren:

Immigration and Naturalization Service, Petitioner versus Veljko Stanisic.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice, I move the admission of Joseph J. Connolly, member of my staff and member of the Bar of the Supreme Court of Pennsylvania to present the argument for the Immigration and Naturalization Service in this case.

Earl Warren:

You move that it’d be a better for that purpose.

Erwin N. Griswold:

I do sir.

Earl Warren:

Very well, motion is granted.

Joseph J. Connolly:

Thank you Mr. Chief Justice.

Thank you Mr. Solicitor General.

If it please the Court, this case arises under the Immigration and Nationality Act of 1952.

The case is here in writ of certiorari to the Court of Appeals for the Ninth Circuit to review that Court’s interpretation of the Act’s provisions governing the temporary landing of alien crewman for shore leave while their vessels call at United States ports.

Before setting forth the facts of this case, I would like briefly to outline the statutory provisions which this case involves.

In Parts IV and V of the Immigration and Nationality Act, Congress set out the basic provisions that establishing the procedures and the standards for the admission and expulsion of aliens into and from the United States.

In Part IV dealing with admissions, Congress provided that if an alien presenting himself at the Court of entry of the United States is denied admission by an immigration officer.

The alien has a right to a hearing before a special inquiry officer or his admissibility and if he is stand to be inadmissible.

He may appeal to the Board of Immigration Appeals and from a finding in the Board that he is inadmissible, he may obtain judicial review by habeas corpus.

Section 241 of the Act, sets out the grounds in which an alien may be expelled from the United States or deported and under 242 (b) of the Act, when it is alleged that an alien is deportable from the United States.

He has the right to a hearing before a special inquiry officer in which he may be represented by counsel.

They present evidence and has the right to cross-examine witnesses against him.

Sections 242 and 243 and the following Sections also provide for certain forms of discretionary relief from expulsion or deportation.

What are these forms of discretionary relief is under Section 243 (h) of the Act which authorizes the Attorney General in his discretion to withhold the deportation of any alien to any country in which his opinion, the alien may be subjected to persecution of an grounds of race, religion, or political opinion.

Under the regulations issued by the Attorney General that determination under Section 243 (h) is initially made by the special inquiry officer who conducts the deportation of proceeding under Section 242.

In Part VI of the Immigration and Nationality Act, Congress establish special procedures for the admission and in some cases for the expulsion of alien crewman.

Under Section 242 (a) of the Act which is the exclusive procedure for the temporary admission of alien crewman, Congress provided that an immigration officer may in his discretion issue a temporary permit for the alien crewman to land.

If he finds that the alien is a bona fide crewman and if he finds under subsection (a) (1) of 252 that the alien intends to depart on the vessel in which he arrives, and the permit issued under subsection (a) (1) is good for the period during which the alien crewman’s vessel is in port.

The Section further provides that the alien crewman must agree to accept such a permit which is conditioned upon his being deported from the United States as provided in subsection (b) of the statute.

That Section, subsection (b) provides that if an immigration officer determines that the alien no longer intends to depart on the vessel on which he arrived.

The alien — the immigration officer may take out and revoke the permit, take the crewman into custody and if practicable remove him to the vessel in which he arrived from removal from the United States on board that vessel.

The Act provides it the alien whom and shall be deported from the United States, the expense of the transportation line which brought him.

The last section of Section 252 (b) is particularly important in this case.

It provides that nothing in this Section shall be construed to require the procedure prescribed in Section 242 of the Act, the hearing before a special inquiry officer to cases falling within the provisions of this subsection Section 252 (a) in the set out on page 41 and 42 of the Government’s brief.

Joseph J. Connolly:

Regulations issued by the Attorney General dealing with alien crewman also provide for a — the parole of an alien crewman who alleges that he may be persecuted if he is returned to his homeland.

Thus, reflecting the discretionary relief available under Section 243 (h) of the Act.

Now in this case, respondent, a native and citizen of Yugoslavia arrived in this country shortly before Christmas in 1964 as a member of a crew, the radio officer of a Yugoslavian vessel.

He was issued to conditional landing permit under Section 252 (a) of the Act.

Good for the time that his vessel would remain in the port in Oregon and on condition that respondent leave the United States with his ship.

He went ashore in January 4, 1965 and he went directly to the home of a cousin in the company of another crewman on board that ship.

And a day later they both returned to the immigration office in Portland, Oregon I believe and claimed that they’ve claim this — sought asylum in the United States on the grant that they would be persecuted if they were return to Yugoslavia.

When representations which respondent made to the immigration officer at that time that he would not under any circumstances return to his ship.

His conditional landing permit was revoked and he was detained at the office.

On the following day the District Director gave respondent an opportunity to present a statement and evidence in support of his claim that he would be persecuted if he were return to Yugoslavia.

This was under the regulation which is set out its Regulation 253.1 (f) now and it is set out on page 46 of the Government’s brief.

Upon advice of counsel, respondent refuse to give any evidence or make any statement in support of his claim.

He contended that he had a right to a hearing before a special inquiry officer under 242 (b) on his claim of anticipated persecution under 243 (h) and he said that he wouldn’t give any evidence to the District Director at that time.

Consequently, the District Director without any evidence in support of the claim denied the application for parole and ordered that the respondent be removed to a ship.

Respondent then brought suit in the District Court and bargained to enjoin the District Director from removing him to his ship.

Potter Stewart:

What was the ground of the District Director’s action?

Joseph J. Connolly:

The ground that the District Director’s action in denying parole?

Potter Stewart:

Yes, under a —

Joseph J. Connolly:

Under the regulation?

Potter Stewart:

— regulation.

Yes.

Joseph J. Connolly:

There was no evidence at all Mr. Justice, respondent refused to give any evidence claiming that he had a right to a different procedure.

Potter Stewart:

I see and well, then that was the ground for the District Director’s action.

There was just no showing?

Joseph J. Connolly:

There was no showing.

Potter Stewart:

Does that appear that that was his ground?

Joseph J. Connolly:

Yes.

His memorandum of January 7 is set out in the appendix on page 5.

William J. Brennan, Jr.:

Mr. Connolly, what was the basis of respondent’s claim to the right — to a different proceeding than that under the regulation?

Joseph J. Connolly:

Well, Mr. Justice it doesn’t really appear from the record exactly what the basis —

William J. Brennan, Jr.:

Was the ship still in port at that time?

Joseph J. Connolly:

The ship was still in port at that time.

The ship was still in port at the time at that he claimed asylum in the United States.

He was still in port at the time that his landing privilege was revoked.

He was still in port in the following day when he refused to get any evidence in support of his claim.

I will touch upon that issue in just second because it — in order to refine the issue before the Court which is not to give — assure the nature of the claim to the hearing under 242 (b).

Earl Warren:

Mr. Connolly, what kind of hearing did he demand?

Joseph J. Connolly:

He demanded a hearing before a special inquiry officer pursuant to Section 242 (b) which is set out in the Government’s brief on pages 39 and 40.

That’s what he claimed he said that under 243 (h) which authorize the discretionary relief he had the right to a hearing under 242 (b).

Earl Warren:

And is that the kind of a hearing that would be time consuming?

Would the — what was the hearing that could be given immediately or one that would take time to —

Joseph J. Connolly:

The record doesn’t disclose Mr. Justice whether there were any special inquiry officers, Mr. Chief Justice, whether there were any special inquiry officers in Oregon at the time.

It doesn’t disclose exactly what the nature the evidence that he intended to present.

We can assume that it would be somewhat of a time consuming procedure.

How long I just can’t estimate.

Earl Warren:

But on that — would it be enough time so that it would not be possible to get him back in his own ship?

Joseph J. Connolly:

Conceivably it would be.

The supplement — the Government provide that the record shows that he ship sailed from Oregon sometime after the 7th and sailed from somewhere in California for Italy around the 16th.

So, we just really don’t know whether it would have been possible to hold such a hearing.

William J. Brennan, Jr.:

May I ask Mr. Connolly, if he had not had a permit for the jumped ship and his ship was still in the harbor when they picked him up.

In that circumstance, if he had made this persecution claim.

Would he been entitled to a hearing before a hearing examiner rather than before the District Director?

Joseph J. Connolly:

My understanding, Mr. Justice would be that under the Act, he would not be subject to Section 252 (b) but that he must be preceded against under Section 2 — on the grounds stated in 241 and under the proceeding in Section 242 (b).

William J. Brennan, Jr.:

So that getting the permit, he gets only the summary hearing on persecution plan but if he hadn’t got the permit and jumped ship, he didn’t have the hearing before the hearing December, is that it?

Joseph J. Connolly:

That is right Mr. Justice and I intend to deal with that question later on as to whether the discrimination between a crewman who gets a permit and a crewman who jumped ship makes any sense at all.

Thurgood Marshall:

Well, isn’t it also true if he says, he’s going back on another ship, he gets a full hearing?

Joseph J. Connolly:

That is right Mr. Justice and I also intend to deal with that form of discrimination.

To continue on with the facts, after the District Director denied his claim for parole, he sued to enjoin the District Director from removing him to his ship.

The District Court and claim to that time also that he had to write to a hearing before a special inquiry officer.

The District Court denied his claim that he had a right to a hearing before a special inquiry officer but remanded the case back to the District Director for the taking of evidence, an opportunity which respondent accepted at this time and presented his evidence.

Joseph J. Connolly:

When the evidence presented, the District Director found that there was insufficient, the showing of a sufficient likelihood of the persecution to justify granting the parole of the discretionary relief.

And ordered — and denied the application again.

On review, the District Court found that the District Director’s determination was not an abuse of discretion and agreed with the District Director that there had been a showing made of any sufficient likelihood of persecution.

Respondent did not appeal that determination by the District Court instead he sought relief by private bill in Congress when that bill was adversely acted upon in the following year in 1966, he again petition for parole for withholding a deportation administratively.

Again, claiming a hearing under Section 242, that relief was denied by the District Director on the ground that the prior proceeding was a fully adequate hearing and that the determination had been made adversely to respond.

He sued again in the District Court to enjoin the District Director from deporting him.

The District Court found that the prior proceedings were fully adequate, denied the relief.

On appeal of the Court of Appeals for the Ninth Circuit, the Court held that in view of the fact that respondent’s ship had sailed during the pendency of the administrative proceedings on his claim of anticipated persecution that the revocation of the condition of landing permit under Section 252 (b) was no longer proper basis for the deportation of respondent.

The Court held that unless in effect that unless the res — that the alien crewman is in fact removed on his ship.

The revocation or the expulsion proceedings under Section 252 plus the board and the alien crewman is entitled in all matters with respect to the revocation and in all matters of discretionary relief to a hearing under Section 242 (b).

We disagree with the holding of the District — the holding of the Court of Appeals.

We believe that so long as the alien crewman’s conditional landing permit is revoke during the time that is in effect, that is during the time with the alien ship is still in port, that it presents a fully adequate basis for removal of the crewman from the United States at determination of any administrative or judicial proceedings that he might invoke on the question of his deportability or the question of any discretionary relief.

And Mr. Justice Brennan asked the question earlier, what was the basis of his prior claim that he had a right to a hearing under Section 242 (b)?

We really don’t know.

We assume that by the respondent’s position in this Court in defending the judgment of Court of Appeals is that he has the right to a hearing before a special inquiry officer under 242 (b) because that’s the way such claims are handled in regular 242 (b) proceedings which the Court of Appeals held he now has a right too.

I have been unable to find any basis upon which it could be inferred merely from Section 243 (h) itself that it is a right to a hearing before a special inquiry officer.

It would seem that the Court of Appeals took the only statutory approach that can be made in this case and that is to find the right to a hearing before a special inquiry officer, in the right to a hearing before a special inquiry officer on all claims and all grounds of deportation in this case.

We begin our consideration of the statutory issue in this case.

He responded also raise his constitutional claim, the statutory issue with the hypothetical.

Suppose an alien crewman is issued a conditional landing permit under Section 252 (a), good for the time that his ship is to remain in port.

Immediately leaves his ship and goes several hundred miles inland where he obtains employment and a training program of a manufacturing plant and enters into a long term lease, a year’s lease on an apartment.

During the time that his ship is still in port, he is found by an immigration officer and on the evidence of his conduct his landing permit is revoked.

He is brought back to the port city and without objection placed to aboard his ship which sails the next day for foreign port.

Now, as our search reveals that all courts which have considered the question of interpreting Section 252 (a) and (d) including the Court below in the instant case would agree that the immigration officer in that case acted properly.

But the difficulty is of course, that in the hypothetical which we presented, the alien’s voluntary departure from this country.

Well, voluntary in the sense that uncontested departure moots any challenge to the conduct of the immigration officer.

Now, we don’t believe that Congress enact its Section 252 merely to provide a basis for or direction for conduct by an immigration officer in a situation that it couldn’t be challenge in Court.

We believe that Congress envision that alien crewman would exercise their rights for admini — for judicial review certainly of the conduct of immigration officers under the statute and Congress presumably recognized that in those case, it is unlikely to be alien’s ship would wait for him until the expiration — until the judicial proceedings were terminated.

The respondent adopts the reasoning of the Court of Appeals that approaches the problem from the other side.

They say — the respondent says, well, the Section 252 (b) procedure did not apply to the case where an alien crewman is jumps — where an alien jumps his ship and enters the United States without a permit.

Joseph J. Connolly:

Under the case where he gets a permit to ship out in another ship, where a case in which his permit is not revoked while his ship is still in port but he stays on longer than that and they say it, well, since the statute is thus narrowly designed.

It ought to be construed more strictly to apply only in the case where the alien is in fact deported on his ship.

Now, we disagree with that proposition.

We admit that from the face of the statute, Congress apparently contemplated that the alien crewman ship would be one of, if not the primary.

It means, for removing him from the United States but if Congress had wanted that to be the sole basis, the sole means for removing him from the United States.

If Congress wanted to limit the statute only the situations, and where the alien is in fact removed on a ship, it could have done so.

We believe that it begs the question in this case, to say as the Court of Appeals did.

That the necessity — the justification for proper removal.

The justification for quick resolution departs with the vessel.

That assumes the Congress contemplated only that alien crewman would be deported on their ships.

We don’t believe that that was a contemplation at all.

They determined when the basis — the Congress determined on the basis of evidence that there was a severe problem of alien crewman deserting their ships.

That it — there would be a special class of alien crewman who would be granted conditional landing permits only on their agreement to depart with their ship and then if they fail to that agreement during the time their ships were still in port, they were immediately deportable whether on their ships, whether on another ship with the same line or whether after the determination of any administrative or judicial proceedings.

Now a question has been raised, well — could Congress rationally have made this determination?

When it exempted from such procedures the crewman who jumped their ships or crewmen who were admitted to ship out in another vessel, although, the legislative history doesn’t provide any guidance on this question.

We believe that Congress rationally would have made such a determination.

The alien crewman who jumps his ship and enters without a permit at all, where the alien crewman who overstays his conditional landing permit without it being revoked may be found 10 days, 3 months, or 10 years later, and the 10 years later issue is one that I think that provides a basis for distinction between the two cases because unlike an alien who may have been in this country for 10 years, albeit illegally.

And it established family relationships and other relationships which presents some equities in this case.

The alien crewman whose conditional landing permit is revoked under Section 252 (b) has been here at the most for less than 29 days, at the most for the time that the ship has been in ports.

Thurgood Marshall:

Suppose he stayed two months?

Joseph J. Connolly:

Suppose he stayed two months?

Thurgood Marshall:

Uh-huh.

Joseph J. Connolly:

Well, I think that the argument that I’m making does not require that you draw the lines between two months and three months, three months and four months without this — the — without in effect the statutory limitations period of Section 252 (b).

Thurgood Marshall:

There’s two — these two months you got the same summary treatment?

Joseph J. Connolly:

No, because —

Thurgood Marshall:

Is that your position?

Joseph J. Connolly:

No, sir.

If he’s here for two months or 10 years, he gets a proceeding under Section 242 (b).

If he’s here —

Thurgood Marshall:

Suppose he is here one hour after the ship leaves?

Joseph J. Connolly:

It’s the same thing Mr. Justice because —

Thurgood Marshall:

What do you think?

Joseph J. Connolly:

— because we can’t impose any other statutory limitations —

Thurgood Marshall:

So, his rights are determined by how long the ship being around?

Joseph J. Connolly:

That is right.

And —

Thurgood Marshall:

Do you think that what’s Congress think?

Joseph J. Connolly:

Yes, sir.

I do.

Now, I’d like to turn in very little time that I have left to respondent’s challenge that the statute is interpreted by the United States, violates his right to due process under the Fifth Amendment and also the Government’s obligations under the protocol relating to the statute as the status of refugees.

I think that both of these — both claims can be comprise to do a single federal due process claim.

The protocol incorporates by a reference, certain provisions of an international convention on the same subject and respondent in amicus cite certain provisions of that convention which relate to the expulsion of refugees on the assumption that respondent is a refugee.

But the accepted international construction of the convention as the state department advised the Senate when it was considering the protocol.

Is that each of the contracting states reserves the right to interpret the convention to make the determination whether an individual is a refugee and in this case after a hearing in which he was entitled to present which he did present evidence and was represented by counsel, the District Director found that the respondent was not a refugee.

Now, on respondent’s federal due process claim, we note first that respondent is not here and has not as far as we know at any time during these proceedings challenge the revocation of this conditional landing permit has been anything other than a fully adequate constitutional basis for his removal from the United States.

Nor does he challenge — nor does he contend that the revocation of his conditional landing permit was arbitrary.

It hardly can be contended in light of his representations to the immigration officer that it was arbitrary in this case.

We ca — respondent’s request for asylum therefore was a request of an alien who is deportability had been properly determined in a proceeding in unchallenged proceeding.

Furthermore, it was a request for discretionary relief in case somewhat analogies to the situation before the Court in Jay versus Boyd in 351 U.S. and a case in which respondent had the burden of showing that in his case, he will be subject to persecution.

As I said before, he was given a hearing before a — the Deputy District Director of the Immigration Service in which he was represented by counsel.

He was permitted to present — it testified himself and presented two other witnesses.

And the District Director found that there was not showing — sufficient showing of person — a likelihood of persecution and that finding was upheld by the District Court.

So the only difference between the procedure which respondent received in this case and the procedure which he would have receive under Section 242 (b) under a 243 (h) claim is that the determination was made by the District Director rather than the special inquiry officer.

So the question is in the case of an admittedly deportable alien seeking discretionary relief from the ground of anticipated persecution whether it is consistent with due process, to have that discretion exercise by the District Director rather than the special inquiry officer.

And we do not believe that in the circumstances of this case fundamental fairness required that in the case in which all other contentions where to be adjudicated by the District Director that it was necessary constitutionally to some and special inquiry officer to determine this claim.

I’d like to reserve what time is remaining for rebuttal.

Earl Warren:

Mr. Fedde.

G. Bernhard Fedde:

Mr. Chief Justice, may it please the Court.

My name is Bernhard Fedde from Portland, Oregon and this story — this case is a story of a seaman who is trying to comply with the law.

He is not a deserting seaman trying to evade the law.

G. Bernhard Fedde:

I think that makes a major difference in this case.

The question which I believe is before this Court is whether an alien merchant seaman who enters this country on a D-1 landing permit is entitled to an impartial hearing before an independent and impartial administrative judge on his bona fide claim of right to stay here to escape prosecution.

Now, as I originally phrase this question, I insert the words after his ship sails.

I’m not sure now after reading the brief of Mr. Ennis’ amicus in the — of the American Civil Liberties of Union whether I need to insert that any longer.

In light of the treaty which provides — which protects refugees and deserting seaman, all the deserting seaman chapter applies only in that treaty or protocol applies only to seaman, foreign seaman flying in our case under the American flag.

I believe therefore the question really boils down to this and our theory is that a seaman with a bona fide claim of right is entitle to a plenary hearing with full right of appeal under Section 242 in light of the new treaty and to the Constitution and laws and cases.

That’s our position.

I’d like to state briefly and enlarge upon a statement of facts.

Earl Warren:

That wasn’t — that wasn’t the basis on which we granted the permit — the writ of certiorari, was it?

G. Bernhard Fedde:

No.

It was on the ground that he had, I believe it was the question of statutory interpretation after the ship had sailed.

I believe that was the narrower question which was presented.

I believe that as I have stated it’s a broader question Mr. Chief Justice and that the — this would — I have stated now, it may not be necessary for my case but I believe that is necessary for the Court each case which is the one which Mr. Ennis in the amicus brief is supporting.

But I believe that as stated now it would be adequate to cover both and I have grown to this conclusion as I have been pondering the statute and the cases.

Now first of all, the Government has pointed as argued that we had not protested the revocation of the landing permit.

The facts are that Stanisic with a valid landing permit on January 6, 1965 sought out the immigration service and presented to the immigration service a claim of asylum before his expi — before his landing permit had been revoked.

There was — he was making at and he had 10 days to go really as far as it turned out, as far as the ship was concerned.

The ship was around for another 10 or more days.

He sought asylum.

Did he have reason?

Yes, 30 out 45 members of his family which was a Chetnik Yugoslav family have been executed or killed in the course of World War II and the war immediately following.

His own father, who was an orthodox priest’s assistant, had been deprived of his church function and had been deprived of his pension rights, and was living a borderline starvation life in Yugoslavia.

The — he himself Stanisic in 1957, had tried to escape from Yugoslavia.

He was caught by some fisherman just outside the (Inaudible).

He was brought back and then was threatened with life imprisonment by a court man.

Now, this doesn’t comport with my idea of fairness and due process when the court in advance of the next defense announces what he’s going to do.

They said, “You’re going to have life imprisonment the next time you appear before this court.”

This is why this — in my opinion is a serious case of a claim of bona fide right of asylum.

I think this makes every difference in the world.

Now, —

Earl Warren:

Were those facts — were those facts raised before the Deputy Commissioner when he gave his original hearing?

G. Bernhard Fedde:

No.

They were not —

Earl Warren:

Why were they not?

G. Bernhard Fedde:

We have 15 minutes notice.

The — in — on the bottom of page 3 of my brief, the respondent’s brief is a — an excerpt from an affidavit of Mr. Robinson who was at that time counsel for Stanisic to outline the exact chronology of events.

Stanisic appeared on January 6 and asked for asylum.

He was taken to Rocky Butte Jail in Portland. On January 7, he was told that — he was asked by the immigration officials without the benefit of any counsel, “Do you intend to return to your ship?”

This of course is the trick question.

He didn’t know what was the — he just answered honestly, “No, I don’t.”

And then they said, “Your landing permit is revoked.”

He had announced that he was coming there for asylum, then is subsequently his landing permit was revoked and then it was that 12 — at 11 o’clock some members on January 7, the day after he had appealed for asylum.

Members of his family, Toskovic actually came to Mr. Robinson’s office and said, “We need help.”

Mr. Robinson was in of the court at that time.

He announced — however he filed a formal appearance about 12 o’clock that day one hour later.

Earl Warren:

That was what day?

G. Bernhard Fedde:

January 7th, still the same day.

We are now 45 minutes later.

This is all working on split-second timing and then —

I thought this was the day afterwards?

G. Bernhard Fedde:

January 7, the day after he was first —

Yes.

G. Bernhard Fedde:

— he first made his claim. Yes, that’s right.

He had still not seen any lawyer until — no, Stanisic had not seen any lawyer but his uncle or cousin Toskovic had on the following day, January 7 about 11 a.m.

At 12 o’clock, Robinson filed his appearance and went to another court where he had to be it 1:30.

At 3 o’clock that day, he got a telephone call from the Immigration Service saying, “You are due to have your hearing on the question of asylum in 15 minutes.”

Robinson couldn’t prepare any case in that short order and the — Mr. Urbano who was then the District Director, simply insisted that the matter proceed at once and it was then that Mr. Robinson said, “we can’t proceed and we’re not going to present any evidence.

In fact we demand a 242 hearing.”

Earl Warren:

Is these all in the record?

G. Bernhard Fedde:

Yes, it is.

G. Bernhard Fedde:

Well, it — yes, it is.

It’s in the record.

You see it’s a — I don’t know if could find it on spur of the moment like this.

It’s in the — well, it’s in this on page 3 an affidavit of Mr. Robinson where to some of this appears.

Earl Warren:

Well, that is not part of the record, is it?

G. Bernhard Fedde:

Yes, I think it is.

It’s — perhaps not, I would — I should perhaps move to have that extended then and have the record extended to include this affidavit of Mr. Robinson.

I believe that the affidavit appears in the proceedings in the entire file which was sent up to the Court.

Potter Stewart:

Where was the affidavit for his file?

G. Bernhard Fedde:

That was filed January 7, 1965 in connection with the petition for restraining order which Mr. Robinson then prepared that same day.

I’m sure it’s in the record because — yes, it is.

It’s in connection with petition for retraining order.

About two hours later, Mr. Robinson had delivered to the clerk of court of the District Court a request for a restraining order and then for a hearing under 242.

The —

Thurgood Marshall:

Did he — did the lawyer ever go to the immigration authorities that day?

G. Bernhard Fedde:

At 3 o’clock —

Thurgood Marshall:

Is that it?

G. Bernhard Fedde:

Yes, he did at 3 o’clock or 3:15, he came there on January 7.

Yes.

Thurgood Marshall:

And what happened then?

He said, he wouldn’t go through at the hearing?

G. Bernhard Fedde:

At that hearing, he would not go through a hearing on such short notice.

One, he had prepared and two, he was entitled to a fair hearing than this hearing.

Thurgood Marshall:

Well, you say that they —

Earl Warren:

Where do we find that in the record?

G. Bernhard Fedde:

Now, that would be in connection with the application for the restraining order.

I believe that is found at page 3 and 4, I believe of the petition for injunctive relief and then the amended — yes, at page 5, 6, 7, 8 of the amended petition for injunctive relief.

Earl Warren:

What page is it in the —

G. Bernhard Fedde:

Of the appendix.

Earl Warren:

— appendix?

G. Bernhard Fedde:

5, 6, 7, 8 of the appendix as a more detailed and amended statement in which he sets forth this, that he had only 15 minutes notice and really had no opportunity to consult with his client.

Thurgood Marshall:

But what worries me is that admittedly I would assume the lawyer was in trouble but the petitioner here, rather respondent didn’t need 15 minutes.

He knew what he was — his complaint was.

I would assume that he’d been thinking about this for quite awhile.

G. Bernhard Fedde:

As far as I know —

Thurgood Marshall:

Well, I would say they think about it is since the time they threatened him with life imprisonment at least.

But what worries me is that nobody gave the office the — any indication of what the facts were that they wanted a hearing to develop, is that true?

G. Bernhard Fedde:

I believe that is true Mr. Justice.

I believe that is true in the initial hearing, partly because we were and I identify myself with Stanisic, I can’t help it.

We were getting on a matter to the hustling process and we — under the circumstances, all we could do is just to ask for a full hearing.

It was apparent to us that Mr. Urbano and Mr. Petillo, his assistant were — had bias and prejudice.

The deposition by the way of Mr. Urbano and Mr. Petillo appears in the files of this case which before this Court and I think the bias and prejudice are quite apparent.

It appeared again, again even in the subsequent hearings held January 25 and 26 at which time Mr. Urbano and Petillo or Mr. Urbano, particularly, took official not judicial but official notice that conditions in Yugoslavia were fine and that there was a relaxation of tensions toward political refugees.

It — on that — in that deposition, it appears that there was no basis and fact whatever for this finding.

In other words, they took judicial notice of nothing and yet came up with the offset of what Stanisic had been able to show at that hearing on January 25 and 26.

It’s — in the course of these — well, if I may move on then to a statement of the case.

The — the District Court referred the case back to the District Director for a summary hearing on physical persecution under Section 243 (h).

The District Director found no physical persecution.

I underscore the word “physical” here which are of course the exact language of 243 (h).

The — and — but he treated it as a matter of seeking or for request parole under 253 (1) (e) and denied parole.

Well, Stanisic then asked the Court to review because of the bias and prejudice of the District Director.

The District Court, Judge East refused to change the order of the District Director and then the matter died at that point.

Mr. Stanisic and his companion Vucinic applied for a private bill in Congress and it failed June 1966.

Then at that point, the District Director ordered Stanisic deported under and also Vucinic deported and gave them 70 hours notice to present themselves to the District Director for deportation to Yugoslavia, and as I understand they were to be sent there in handcuffs.

The — in the meantime however, Section 243 (h) of the statute had been changed.

In other words, the goalpost had been moved. No longer was it physical persecution now it was persecution on account of race, religion, or political opinion.

It had been broadened and we claimed that therefore the goalpost had been widened.

And we therefore had a greater right than we had under question of physical persecution.

The District Director in the earlier proceedings used always the word physical persecution and we claim that the persecution that we were facing was persecution by reason of religion, orthodox, and political opinion namely Chetnik sympathies, anti-Yugoslav, and Government views.

And whether physical persecution would result is hard to say, although, we have in our brief pointed out some 10 different grounds upon which this man could face anything and it’s a very vague position that he faces if he goes back.

G. Bernhard Fedde:

If he sent back he could face anything up to the death sentence back there and he has been promised a life imprisonment.

We’d claim therefore the — that the — he has now or had now under the amended statute a broader claim that he had under the earliest statute.

Potter Stewart:

When was the statute amended?

G. Bernhard Fedde:

October 5, 196 — October 3, 1965 I believe it is.

Potter Stewart:

Some months after —

G. Bernhard Fedde:

After the first hearing —

Potter Stewart:

— that he came ashore.

G. Bernhard Fedde:

— and before this first — second matter arose.

Yes.

Potter Stewart:

Really, are all of these — the substantive issues which his claim rises are really not before us at all, are they?

Or isn’t the only question whether or not the procedures of 252 (b) were available and continued to be available even though the shipped had left the shores of the United States or whether after the ship left, the Government was required to bring it 242 proceeding and you were entitled 242 proceeding —

G. Bernhard Fedde:

Well —

Potter Stewart:

— isn’t that the only issue?

G. Bernhard Fedde:

That’s the issue in my case cause that’s —

Potter Stewart:

Well, isn’t that the only issue a — on which we granted certiorari —

G. Bernhard Fedde:

Yes.

Potter Stewart:

— and this is the only issue really presented here —

G. Bernhard Fedde:

Yes, that’s —

Potter Stewart:

— not the substance of your client’s claim appealing —

G. Bernhard Fedde:

That’s right.

Potter Stewart:

— may be?

G. Bernhard Fedde:

That’s right.

Potter Stewart:

So, it —

G. Bernhard Fedde:

That’s right, Your Honor.

The — on the second proceeding, he petitioned for parole under the statute Section 243 (h), this was denied by again, the same District Director, Urbano and he then presented them through me.

Now, I appeared in this case at this point and I then approach the United States District Court asking for restraining order and cited number of grounds, pointing out among other things that the ship had long since left the shores and that he should be entitled a 242 hearing before a special inquiry officer.

It is the court rejected on the ground of res judicata.

The Court of Appeals in the Ninth Circuit reversed on the ground that basically interpret of the statute that when the ship departs the need for haste ends and that he is therefore entitled to a full hearing on the merits of the case.

And then —

Earl Warren:

That’s a real issue that were decided there —

G. Bernhard Fedde:

— that’s the real issue of this case.

Yes.

That is right, Your Honor.

The point that I think is critical in this case which certainly strength is my position, is the protocol related to the status of refugees which was ratified November 1, 1968 about 90 days ago.

And this, I believe applies to Stanisic and to all other refugee seaman as well as refugees in general.

No longer can they be sent back on the ship that brought them.

In fact, they cannot be sent back to the country from which they are seeking refuge or seeking it from which they are seeking asylum.

The — in fact no political refugee under this protocol as I understand it, can be sent back at all to the country of origin or the country that is threatening to persecute him and therefore, under the circumstances of this case it appears to me that Stanisic in no event would be sent back to Yugoslavia, no event of course back on the ship that brought him.

And —

Earl Warren:

Is that ratified by the Senate here?

G. Bernhard Fedde:

Yes.

Yes, it has Mr. Chief Justice.

And so, this is our position that the summary expulsion proceedings should be limited to the absconding seaman who has no claim of right.

Where there is however a claim of right as in this case, he is entitled to a full and fair hearing on the facts with full right of appeal.

This is the minimum of due process in my opinion under the treaty and the Constitution and the cases.

If Stanisic is denied this then he faces a severe punishment probably life imprisonment, all we ask is fairness.

The —

Abe Fortas:

Well, do I understand that.

Do I understand that if you no longer contend that the statute entitles you to this?

G. Bernhard Fedde:

Oh, yes, I do believe the statute also entitles us to this but I simply said that protocol has reinforced our position in that it says that all refugees shall be given due process.

Abe Fortas:

But you have a question as to who is a refugee while that he is a refugee and what procedures have to be followed to establish that he belongs in that category, don’t you?

G. Bernhard Fedde:

That — there’s of course the first factual question as the claim of right to question, that is true Your Honor.

Abe Fortas:

Now, and that — does that depend on the statute?

As I understand it that the United States has reserved to itself the right to determine who is a refugee.

Then presumably in the statute to the United States has prescribed a procedure by which in cases of this sort it will make a judgment as to who is a refugee.

Now, you’re claiming one sort of procedure, your client was given another kind of procedure and I’ll be interested to hear what you have to say about the statute and what like a statute sheds upon whether you’re correct in your contention or the Government’s correct in its contention as to the prescribed procedure, prescribed form of proceeding.

I was interested in your argument, this far you seem to drop out with reference to the statute.

But perhaps, it was just a matter of the order of argument.

G. Bernhard Fedde:

Well, perhaps I’ve been unduly impressed by the protocol that may be part of the point.

The — and the protocol came part of that later in terms of statutory enactment and so on in the chronology of events.

G. Bernhard Fedde:

But the —

William J. Brennan, Jr.:

Well, are you arguing on the basis of the protocol that whatever the statute may originally have required or permitted, this case has to be determined now within the four corners of the protocol?

G. Bernhard Fedde:

Oh, I wouldn’t go — I would say the protocol reinforces our position.

I think —

William J. Brennan, Jr.:

I don’t follow this.

G. Bernhard Fedde:

Now —

William J. Brennan, Jr.:

You told us that the protocol no longer permits deportation to the country of origin in the case political refugee.

G. Bernhard Fedde:

Now, for refugee, political or —

William J. Brennan, Jr.:

Well, refugee whatever it may be.

Then I don’t understand.

If that’s so, then what relevance has statute any longer?

G. Bernhard Fedde:

It may be a — it may be if the statute will have to be declared at least modified or declared unconstitutional to the extent that it conflicts with the protocol.

This may be the position but even if we stay under 242 on the statute and I’m probably willing to stay on to that as well.

The point there is that he is entitled to a full 242 hearing because he —

William J. Brennan, Jr.:

Well, suppose he is.

G. Bernhard Fedde:

Yes.

William J. Brennan, Jr.:

And suppose he gets it and suppose that’s concluded that the he is deportable then what happens to him?

What controls then, the protocol?

G. Bernhard Fedde:

Yes.

I believe the protocol would control.

It was not —

William J. Brennan, Jr.:

So, he could not be deported —

G. Bernhard Fedde:

To Yugoslavia.

William J. Brennan, Jr.:

Yugoslavia.

G. Bernhard Fedde:

That is right Your Honor.

I believe that’s correct.

Now that’s a something that has come into be in the last 90 days or so.

Hugo L. Black:

What does that —

Thurgood Marshall:

You mean–

Hugo L. Black:

What does that require you to argue the constitutionality if the protocol controls that issue?

G. Bernhard Fedde:

Well, I believe that even without the protocol, my whole —

Hugo L. Black:

I’m not talking about without it.

You — assuming you have it.

If you say its controlling, why do you have to go to any constitutional right?

G. Bernhard Fedde:

Perhaps I don’t, I just — out of abundance of caution, I don’t —

Hugo L. Black:

Do you have to go on abundance of caution and raise the constitutional point if you have to decide it by protocol which you say is controlling?

G. Bernhard Fedde:

Yes.

I — I think that the protocol requires that he be given due process.

I think 242 provides due process and this is what we’re asking that a — when the protocol refers to due process, I believe that this in turn requires a due process 242 hearing which is —

Hugo L. Black:

How do we know what they meant by due process there?

G. Bernhard Fedde:

I can just cite the Court back to the — well, to the race case of this Court and the — I think for instance of the Woodby case in which the Court said that, no deportation order, this Woodby versus U.S. I’ve cited in page 13, 14 of my brief, no deportation order may be entered unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true.

And that this standard of proof applies to all deportation cases regardless of the length of time the alien has resided in this country.

Hugo L. Black:

Well, that’s a challenge to the finding, isn’t it?

G. Bernhard Fedde:

Yes.

We also challenge the findings of the District Director, we do that because the depositions of Urbano and Petillo which are in the records indicate that they — in our opinion that they came to this whole question with prejudice.

And there’s no evidence at all contradicting —

Hugo L. Black:

So that’s a different question —

G. Bernhard Fedde:

Yes.

Hugo L. Black:

— challenging the finding?

G. Bernhard Fedde:

Yes, we are.

We challenge the findings also not only the question of the — we believe this would come out better in a 242 hearing on the merits of the case.

Hugo L. Black:

Basically, do you stand on what the Court held and when the ships are gone, they’re entitled to a hearing?

G. Bernhard Fedde:

That is correct Your Honor.

Hugo L. Black:

Two forty what is that?

G. Bernhard Fedde:

242 (b), I believe it is.

Hugo L. Black:

That’s your basic?

G. Bernhard Fedde:

That’s correct, Your Honor.

Yes.

Earl Warren:

Regardless of — regardless of what happened during the 29 days of this ashore in relation to his wanting to stay?

Suppose, let me put it this way, suppose instead of coming in on the 5th of January as he did, he came in on the last day or the next to the last day before the ship was due to leave.

Earl Warren:

Would you still contend that they had to have the hearing and everything before the ship left?

G. Bernhard Fedde:

If possible, have the hearing before the ship left but in any event, I know in a question of bona fide claim of right.

I think he is entitled to a 242 hearing if the SIO, special inquiry officer is on hand at the time.

You could have it right then, although, I don’t see how, when to prepare a case like this which requires witnesses and written records and other things to sustain his position.

I don’t see how you get that up in 24 hours.

Earl Warren:

Well, I don’t either but the — aren’t we — wouldn’t we then be riding out, out of existence a statute which says that he can be you sent back if the ship is still there?

G. Bernhard Fedde:

That’s — regulations 253 —

Earl Warren:

Yes.

G. Bernhard Fedde:

Yes.

Earl Warren:

So, if he comes in the last day or the next to last day and said, “I’m not going back and I refuse to tell you why but I’m not going back.”

G. Bernhard Fedde:

Yes.

Earl Warren:

And then the ship goes out. You say that that entitles him to stay here and have the hearing that you claim he’s entitled to have.

G. Bernhard Fedde:

Well, where he has a claim of right, yes.

Although, I — does the Court has a word that he wouldn’t have stated any claim of right as I understand the further question, is that right?

Earl Warren:

Well, when they say we’ll give you a hearing.

G. Bernhard Fedde:

Yes.

Earl Warren:

And he says, I won’t tell you.

I won’t take a hearing now.

I won’t put on my case.

I won’t tell you anything.

Isn’t that what he did in this instance?

You put on the basis that he only had 15 minutes.

G. Bernhard Fedde:

Yes.

Earl Warren:

Well, I suppose you’ve been thinking about this before I knew why he didn’t want to go back?

Couldn’t he at least have stated to the officer at that time why he didn’t want to go back?

G. Bernhard Fedde:

I believe he did in just that many sentences that he couldn’t go back for reasons of religious and political persecution.

But —

Earl Warren:

Does the record show that?

G. Bernhard Fedde:

I believe it does, Your Honor.

Earl Warren:

I read the early part of it here.

Earl Warren:

I don’t find that, maybe there?

I thought he refuse to —

G. Bernhard Fedde:

He refused to put on the evidence that is true.

Hugo L. Black:

Was the ship known then or not?

Earl Warren:

No.

G. Bernhard Fedde:

No, about the 16th of January when the ship went.

I’d like to say, I see that the light has lit now.

I just want to take a moment to explain this 253 matter.

William J. Brennan, Jr.:

You have five minutes.

G. Bernhard Fedde:

Oh!

Well, we — the 253 —

Earl Warren:

Mr. — yes.

I’m going to give you five minute or Mr. Fedde, I’m going to give you five minutes more because I want to give the Government five minutes more to answer some questions too.

G. Bernhard Fedde:

The 253, the record is a regulation, it’s set forth at the end of the Government’s brief, page 46 of the Government’s brief.

The history of this is set forth rather neatly in the brief of the amicus and particularly, well beginning with page 5 and following on the brief of Mr. Ennis.

The gist of the argument is that 253 is a regulatory or Immigration Service Clause and is not required by the statute, and under 243 (h) as Government counsel have indicated there is no procedures set forth.

We claim that 242 proceedings apply namely a special inquiry officer hearing and for that reason they — the regulatory that is the regulations 253 hearing should be stricken.

They are not necessary at all and it’s a — it’s this which is doing the damage in the case.

One part also I want to bring up and that is the point of that we’re talking about de minimis matter here.

As far as — now, over the last 10 years, there have been only 276 Yugoslav seamen involved.

I pick up Yugoslav seamen because they are the primary ones from refugee countries that is — countries where they might persecution.

There may be seamen from England and other place but they’re not claiming political asylum.

The 276 over 10-year period, 27.6 men per year on an average, that is the only additional burden that would be inflicted upon the staff of the special inquiry officer if the Court throws out 253 as a regulatory provision and then permits these refugee seamen to have a full SIO hearing.

Thurgood Marshall:

Even if the ship is still on port?

G. Bernhard Fedde:

Even if the ship is still on port but in my case, we don’t have that question and the question which is —

Thurgood Marshall:

What did you do?

You filed your case in the District Court while the (Inaudible) while the ship is still in port?

G. Bernhard Fedde:

Yes.

Yes, we did.

Thurgood Marshall:

That’s what you’ve meant that anytime that his ship had gone —

G. Bernhard Fedde:

Yes.

Thurgood Marshall:

— anytime?

G. Bernhard Fedde:

Yes.

Although, there’s a question further added, may it please the Court that after the ship has gone, the hearings should shift from a 253 hearing to a 242 hearing and before a special inquiry officer because now the need for haste is gone.

Thurgood Marshall:

In your application of restraining order, didn’t you have 242 hearing?

G. Bernhard Fedde:

Yes, we did.

Yes.

Thurgood Marshall:

While the ship is still in —

G. Bernhard Fedde:

Yes, we did.

Yes.

Thurgood Marshall:

You changed that just now?

G. Bernhard Fedde:

No, Your Honor.

We still stand on the 242 hearing.

We still — I think that is the only correct procedure.

Thank you, Your Honor.

Earl Warren:

Mr. Connolly.

Joseph J. Connolly:

Mr. Chief Justice, the Chief Justice was very kind in extending the Government’s time in which improvidently was terminated its opening statement because there’s a matters of some importance, some very great importance in this case in which the Government and the respondent strongly disagree.

The first place the respondent has — respondent’s counsel has painted the picture of an individual who in good conscience after coming ashore rather than trying to fade into the population presents himself in the immigration office to claim the asylum under the statute.

I would like to call — to invite the Court’s attention to respondent’s testimony before the Deputy District Director on remand from the District Court to pages 12, 14, 20 to 22, 29, and 30 of his testimony which is in the record in the Court filed in the little manila folder.

It is not printed.

It is the Government’s position that that testimony gives persuasive evidence that respondent entertained the idea and the intention well before he came into Oregon this time to desert his ship and to remain permanently in the United States.

At the time that he came to Oregon, he obtained the conditional landing permit from an immigration officer on his agreement to return with his ship, in his representation to the immigration officer that he was going to return with ship and then he was not going to desert a ship.

I think the best thing that you can say on the basis of this evidence is that the position that respondent finds himself now is to scheme that was initially conceived in this representation.

If he had told — if he had been honest with the immigration officer and told him that he is claiming political asylum because of anticipated persecution.

He clearly would not have been entitled to a temporary landing permit under Section 252.

He would been given a hearing under the regulations as to whether he may be paroled in the United States but in such a case that determination would be made by the District Director as it was actually in the present case then he would have no colorable claim to a hearing before special inquiry officer.

So, in the basis of initial misrepresentation he is permitted his status into a situation where he is just completely made a shambles of the whole statutory scheme.

And the next point that I’d like to bring out —

William J. Brennan, Jr.:

Another way of looking at it is a person off a ship from Yugoslavia coming to a strange country worked up pretty well to get even to the place where he might get justice to think of an American landing in Yugoslavia and trying to work his way through all the nuisances of Yugoslavia law.

I don’t get this argument at all?

Joseph J. Connolly:

The argument —

William J. Brennan, Jr.:

You assumed that every person who walks in has an LLB from Harvard.

He got A’s in all of his courses.

He knows all of the intricacies of all these sections.

Joseph J. Connolly:

Well, I think after Mr. Stanisic got on shore he did miraculously well against what Congress direct from the statute.

The only point that I’m trying to — the essential point that I’m trying to make is that he was asked one question by the immigration officer when the immigration officer came aboard a ship and that is, “Do you intend to depart with your ship?”

And he said, “Yes.”

And that’s how he got a conditional landing permit and the evidence in the record, we believe, discloses that he didn’t intend to depart with the ship.

What’s the matter in what he said, can you say it?

Joseph J. Connolly:

The matter of what he said is that he is — he delayed — he say — delayed getting married and jumping ship until he could get to the United States because he saw that — he have been in the United States six times and he delayed jumping ship until he got to Oregon because he had a cousin in Oregon that could help him.

So, this was in any —

Hugo L. Black:

Suppose, it be true that he did say, “I intend to go back with the ship.”

He state here, you have some proceeding and the ship left.

His lawyer then came to the immigration department and says, now, I have — I’ll be persecuted so I go back.

I want a hearing.

Would he then have been entitled to a hearing on the ground that his ship had gone?

Joseph J. Connolly:

He would have been entitled to a hearing under Section 242 and because of the narrowness of Section 252 that it would have been no exemption from that hearing requirement.

He would have gotten the 242 hearing.

Hugo L. Black:

But I understood the lawyer to say that he did go on and tell him that?

Joseph J. Connolly:

He did — yes.

He did go and tell the —

Hugo L. Black:

And the ship had already gone?

Joseph J. Connolly:

No, sir.

Hugo L. Black:

I understood him to say that.

There’s a record not to show that?

Joseph J. Connolly:

The record we believe is supplemented by the Government shows that at the time that he presented himself to the immigration officer —

Hugo L. Black:

You mean the lawyer who presented the fact to him?

I understood him to say that the lawyer after the ship had gone presented that to him and told him the facts that he —

Joseph J. Connolly:

No, sir.

That is not what happened in this case.

Joseph J. Connolly:

The ship was here when he presented himself to the immigration officer.

Hugo L. Black:

Suppose that had been done?

Joseph J. Connolly:

If — under the stature Mr. Justice, unless the landing permit is revoked while the ship is in port.

Unless you get a hold of the alien and revoke his permit while the ship in port.

He must be proceeded against under the full procedures.

So, we would have had this case at the ship had been in port —

Hugo L. Black:

That would have been in a different act —

Joseph J. Connolly:

That’s right.

Hugo L. Black:

— and it all depends that point depends on whether the lawyer did take —

Joseph J. Connolly:

Well, no —

Hugo L. Black:

I understood you’d say the lawyer did, maybe I’m wrong.

Did you understand that?

Joseph J. Connolly:

No, sir.

I didn’t get it.

Now, the next day and I think more important point that I’d like to make is that respondent relies quite heavily on the statement of the brief of the amicus American Civil Liberties Union to the effect that the hearing which the service offers to alien seaman under 253.1 (f) of the regulation is a rather pro forma the hearing which results in the fair shuffle back to the ship.

They cite three cases for that.

The first case they site is the instant case in which when an opportunity was given to respondent to present evidence.

He completely refused to give without any evidence at all.

The second case they cite —

Abe Fortas:

You really — you really don’t think that’s a totally unfair category sanction that by – it’s true that he was given 15 minutes notice?

Joseph J. Connolly:

Well, Mr. Justice —

Abe Fortas:

When I got — I can —

Joseph J. Connolly:

Mr. —

Abe Fortas:

I — I can readily understand that a lawyer faced with that might quickly find that he’s way over to the United States District Court and file a bill and because lawyers after all under our system are suppose to have some time to get that fair case for their client and you can’t expect the Yugoslav seaman or any layman to go wherein 15 minutes and present the facts in support of his claim of religious or political persecution.

Joseph J. Connolly:

That’s right Mr. Justice and the remedy that’s available to a lawyer in that type of case as in any administrative procedure.

There’s any judicial procedure to ask for continuance and that’s what the lawyer here didn’t do.

The lawyer said that he had a right to a hearing before a special inquiry officer under Section 242 and on the face of the record it wouldn’t made any difference if he had 15 minutes, 15 hours or 15 days to prepare for it.

What he claimed was a different type of a hearing that didn’t make any difference, how much time he got.

But the other two cases and I won’t go into them now because time is running out or were also cases, the Kordic case in the Second Circuit, the (Inaudible) case in Fifth Circuit, cases in which the hearing was impeded by a claim that there was a right to hearing under Section 242, but more than that I was worried about by this point and I check with the immigration service.

And the immigration service advised me and asked me to represent to the Court that in the hearings under the regulations of an alien seaman who claims persecution if he is returned.

Joseph J. Connolly:

He gets the exact same type of hearing as he would have got under the full scale 242 proceeding.

He is entitled to have counsel — he is entitled to have the assistance of counsel.

He is entitled to present any evidence which is readily available to them.

And that’s exact —

Abe Fortas:

Now, what — are you saying that it makes no difference whether there’s a hearing before a — the District Director or before a hearing officer?

Joseph J. Connolly:

No, sir.

That —

Abe Fortas:

I don’t assume your saying that Mr. Connolly.

Joseph J. Connolly:

The constitutional issue comprises that difference.

But it comprises only that difference and it is not a difference in either the availability of counsel, the availability of time, or the availability of witnesses.

Abe Fortas:

What?

Joseph J. Connolly:

In all of those situations the proceeding is exactly the same.

Potter Stewart:

What about —

Thurgood Marshall:

Did they also suggest that you tell us that they gave him more than 15 minutes to get ready?

Joseph J. Connolly:

Mr. Justice, I would assume that any proceeding in which you have a right to counsel and you have a right to present evidence that is readily available.

You also have a right to continuance if you asked for it and no continuance was asked during this case.

Abe Fortas:

Well, as a very important point of — potentially important point at least in my mind as to whether this respondent or his counsel should have presented some statement as to the basis for his claim of right to stand this country —

Joseph J. Connolly:

Well, sir —

Abe Fortas:

— and now — but that meets to what to my mind is a very powerful obstacle when you get this preemptory and unexplained statement to that he comes out and he is to come over and have a hearing in 15 minutes.

Is there any reason for that?

Is there any reason for saying 15 minutes?

Joseph J. Connolly:

Mr. Justice, the record doesn’t disclose —

Abe Fortas:

No, it doesn’t and it was the same afternoon that the lawyer went over to the United States District Court to file his papers, is that right?

Joseph J. Connolly:

That’s right.

And it could — it could —

Abe Fortas:

The same day.

The same day those two things happen.

Joseph J. Connolly:

Yes.

Abe Fortas:

Doesn’t take much imagination to understand what happened here Mr. Connolly?

Joseph J. Connolly:

Well, Mr. Justice, I think in alternative explanation on a cold record.

Joseph J. Connolly:

The record that doesn’t disclose anything is that it was perhaps in the nature of a preliminary examination to find out exactly what nature claim Mr. Stanisic was raising.

We don’t — I —

Abe Fortas:

Well, I spoke sharply to you.

I didn’t mean to speak sharply to you —

Joseph J. Connolly:

I understand sir.

Abe Fortas:

But, by any lawyer that this really is a kind of startling situation.

Joseph J. Connolly:

But before we presume on a — I think its unfair to presume in a cold record that this Immigration Service was giving — was willing to give him only what he could have got within 15 minutes.

And if I may also add to my answer, the Justice use the term a claim of right, perhaps adopting it from what Mr. Fedde had argued.

The Government fails to see how under either the Constitution or the international protocol, what is under American law, a discretionary relief entrusted to the Attorney General.

Somehow becomes a claim of right in this case.

Abe Fortas:

You mean the statute.

The congressional direction here is not with respect to danger as it was then danger of physical persecution as it is now claimed based upon the religious or political persecution.

You mean those are meaningless so far as the Immigration and Naturalization Service is concern?

Joseph J. Connolly:

No, sir.

Far from — all it’s the —

Abe Fortas:

I thought the — I thought the service was subject to congressional direction —

Joseph J. Connolly:

All I’m saying Mr. —

Abe Fortas:

— and required to follow the congressional direction, isn’t it?

Joseph J. Connolly:

Yes, sir.

Abe Fortas:

And isn’t that a claim of right?

Doesn’t a person have a right that the Immigration and Naturalization Service like all other agencies of the Government follow the law as enacted by the Congress?

Joseph J. Connolly:

Certainly Mr. Justice, it does.

But the question is, does he have the right to the relief?

He has a full right to claim the relief.

He has a full right to present evidence in support of his claim but the relief is discretionary.

Potter Stewart:

Is his right is to have clear communication to invoke the discretion of the Attorney General?

Joseph J. Connolly:

Yes, I think.

Thank you, Mr. Chief Justice —

Earl Warren:

Mr. Connolly, what effect did the protocol have on this statute if any?

Joseph J. Connolly:

Mr. Chief Justice, we’ve — I am implicitly assumed for the purpose of this argument that the protocol imposes on the Government a right — an obligation to allow an alien seaman in this country, a fair opportunity to claim that he is a refugee and a fair determination that — of his refugee status.

Joseph J. Connolly:

We’ve also assumed that that was the individual — that was the alien seaman’s right under the statute.

So, in so far as the Government’s approach to handling persecution claims.

The treaty has — the international protocol has not affected that the Government’s attitude at all.

We’ve always assumed that 243 (h) is available to alien.

That the discretionary relief if available to alien seaman under the statute, that we enacted the right — we promulgated a regulation which gives the alien crewman the right to obtain such a relief — claim such relief.

So, it hasn’t have any effect at all then — and that is the — assuming at the best that it has the — that the protocol has the effect of imposing that obligation to the Government that it has no change in our procedure.

Earl Warren:

Well, as I understood Mr. Fedde the — he thought the protocol prevented the Government now from sending a man back under this 252 to be — before the ship left?

Joseph J. Connolly:

Mr. Justice, the only — no.

Mr. Chief Justice, I think the only way you could get to that is it if you assume that the man is a refugee and under the Government’s — the United States agreement to the protocol reserved the Government the right to determine whether the man is a refugee or not.

Earl Warren:

Uh-huh.

I see.

Joseph J. Connolly:

So, if the Government determines that he is not a refugee then by that factor — by that fact the substantive provisions of the convention don’t apply to him.

If the Government determines that he is a refugee, then he is entitled to the discretionary relief and the Government will give him the discretionary relief under the statute.

Earl Warren:

I see.

Mr. Fedde, Mr. Justice Black would like to ask you a question —

G. Bernhard Fedde:

Yes.

Hugo L. Black:

What I want to ask you about was this.

I understood you say that after the boat left.

Do you or some other lawyer for the respondent went to the Immigration Department and told him that you did have this bona fide claim and asked for a hearing, was I wrong?

G. Bernhard Fedde:

Yes and no.

The — we asked initially for a hearing on —

Hugo L. Black:

I’m talking about after the boat left.

G. Bernhard Fedde:

The request was made before the hearing was after the boat had left.

The request was made on January 7 for a 242 hearing.

The District Court referred the case on this petition for injunctive relief referred the case back to the same District Director for a hearing under 253 on physical persecution and it was 253 hearing not a 242 hearing held about 10 days after the ship had left, and this was ordered some 10 days after the ship had left.

So, the timing is or the hearing itself was held after the ship had gone.

Potter Stewart:

But the request was made while the ship was still in port in United States, is that right?

G. Bernhard Fedde:

Yes.

Yes, yes.

I might add — may I just — well, I shall —

Earl Warren:

You — you may have just a moment if you wish to have something to say.

G. Bernhard Fedde:

Just one point in the protocol that has been referred to by the — just points out with reference to who is a refugee.

I refer the Court to page 30 of the brief for respondent in the terms of a protocol.

Earl Warren:

Mr. Fedde, in this case the Court appointed you to represent this indigent defendant and we appreciate the fact that you have done so with diligence and fairness.

And Mr. Connolly, we appreciate the fairness in favor with which you represent the interest of the United States.

Joseph J. Connolly:

Thank you, Mr. Chief Justice.