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0 357 US 185

LENG MAY MA VS BARBER, (1958)
United States Supreme Court
LENG MAY MA v. BARBER, (1958)
No. 105
Argued: May 20, 1958 Decided: June 16, 1958

Petitioner, a native of China, came to the United States in 1951, claiming citizenship. Pending determination of her claim, she was at first held in custody but later was released on parole. When it was determined that she was not a citizen, she was ordered excluded. She surrendered, but applied for a stay of deportation under 243 (h) of the Immigration and Nationality Act, on the ground that her deportation to China would subject her to physical persecution and probable death at the hands of the existing government. The stay was denied, and she sought a writ of habeas corpus. Held: Her release on parole did not alter her status as an excluded alien; she was not "within the United States," within the meaning of 243 (h); and thus she was not eligible for the benefits of that section. Pp. 185-190.

241 F.2d 85, affirmed.

Joseph S. Hertogs argued the cause and filed a brief for petitioner.

Leonard B. Sand argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson, Beatrice Rosenberg and Julia P. Cooper.

MR. JUSTICE CLARK delivered the opinion of the Court.

This is a habeas corpus case involving 243 (h) of the Immigration and Nationality Act, which authorizes the Attorney General "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. . . ."1[357 U.S. 185, 186] Claiming to be an alien "within the United States" by reason of her parole in this country while her admissibility was being determined, petitioner contends that she is eligible to receive the benefactions of 243 (h). The Attorney General contends that the section is applicable only to aliens who, in contemplation of law, have entered the United States. He argues that petitioner has never enjoyed that status because she eventually was found ineligible for entry and ordered excluded. The District Court denied a writ of habeas corpus, and the Court of Appeals affirmed. 241 F.2d 85. We granted certiorari. 353 U.S. 981 (1957). We conclude that petitioners parole did not alter her status as an excluded alien or otherwise bring her "within the United States" in the meaning of 243 (h).

Petitioner is a native of China who arrived in this country in May 1951 claiming United States citizenship on the ground that her father was a United States citizen. Pending determination of her claim, she at first was held in custody, but later, in August 1952, was released on parole. Some three months thereafter, having failed to establish her claim of citizenship, she was ordered excluded, and the Board of Immigration Appeals affirmed. She surrendered for deportation in January 1954, and thereafter applied for a stay of deportation under 243 (h) in which she alleged that her pending deportation to China would subject her to physical persecution and probable death at the hands of the existing government. Her petition for writ of habeas corpus followed administrative notification of her ineligibility for relief under that section. Petitioner does not challenge the [357 U.S. 185, 187] validity of her exclusion order or the proceedings culminating therein. She merely contends that by virtue of her physical presence as a parolee she is "within the United States," and hence covered by 243 (h). The question, therefore, is wholly one of statutory construction.

It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely "on the threshold of initial entry." Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953). The distinction was carefully preserved in Title II of the Immigration and Nationality Act. Chapter 4 2 subjects those seeking admission to "exclusion proceedings" to determine whether they "shall be allowed to enter or shall be excluded and deported." 66 Stat. 200, 8 U.S.C. 1226 (a). On the other hand, Chapter 5 3 concerns itself with aliens who have already entered the United States and are subject to "expulsion," as distinguished from "exclusion," if they fall within certain "general classes of deportable aliens." 66 Stat. 204, 8 U.S.C. 1251. Proceedings for expulsion under Chapter 5 are commonly referred to as "deportation proceedings." Parenthetically, the word "deportation" appears also in Chapter 4 to refer to the return of excluded aliens from the country, but its use there reflects none of the technical gloss accompanying its use as a word of art in Chapter 5. [357 U.S. 185, 188]

For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953); United States v. Ju Toy, 198 U.S. 253, 263 (1905); Ekiu v. United States, 142 U.S. 651, 661 (1892). It seems quite clear that an alien so confined would not be "within the United States" for purposes of 243 (h). This, in fact, was conceded by respondents in the companion case, Rogers v. Quan, post, p. 193. Our question is whether the granting of temporary parole somehow effects a change in the aliens legal status. In 212 (d) (5) of the Act, generally a codification of the administrative practice pursuant to which petitioner was paroled,4 the Congress specifically provided that parole "shall not be regarded as an admission of the alien," and that after the return to custody the aliens case "shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."5 (Emphasis added.) Petitioners concept of the effect of parole certainly finds no support in this statutory language. [357 U.S. 185, 189]

This Court previously has had occasion to define the legal status of excluded aliens on parole. In Kaplan v. Tod, 267 U.S. 228 (1925), an excluded alien was paroled to a private Immigrant Aid Society pending deportation. The questions posed were whether the alien was "dwelling in the United States" within the meaning of a naturalization statute, and whether she had "entered or [was] found in the United States" for purpose of limitations. Mr. Justice Holmes disposed of the problem by explicitly equating parole with detention:

We

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