Jagdish Rai CHADHA, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent

No. 77-1702

United States Court of Appeals, Ninth Circuit
Argued and Submitted before a panel consisting of
Ely, Carter and Kennedy, Circuit Judges, April 10, 1978
Submission ordered withheld, April 14, 1978
Reassigned to a panel consisting of Ely, Kennedy and
Hug, Circuit Judges, Aug. 13, 1980

Resubmitted and Decided Dec. 22, 1980

Alien whose suspension of deportation had been vetoed by one house of Congress sought review of order of deportation issued by the Immigration and Naturalization Service. The Court of Appeals, Kennedy, Circuit Judge, held that statutory provision for one-house disapproval of suspension of order of deportation violates the doctrine of separation of powers and is invalid.

Order accordingly.

1. Aliens 54.3(1)

The term "final orders" in statute providing for Court of Appeals review of final orders of deportation includes all matters on which the validity of the final order is contingent, rather than only those determined actually made at the hearing; Court of Appeals thus had jurisdiction in a case in which the alien was not challenging any decision of the INS, but rather was challenging the constitutionality of the statutory provision which authorized one house of Congress to veto his suspension from deportation. Immigration and Nationality Act, §§ 106 (a), 244 (c) (2), 8 U.S.C.A. §§ 1105 (a), 1254 (c) (2). [See publication Words and Phrases for other judicial constructions and definitions.]

Fact that the Immigration and Naturalization Service lacked the power to pass on the constitutionality of statutory provision allowing either house of Congress to veto a suspension of deportation did not preclude the Court of Appeals from considering that issue on an appeal by an alien who had been granted a suspension by the Attorney General but had had that suspension vetoed by one house of Congress. Immigration and Nationality Act, §§ 106 (a), 244 (c) (2), 8 U.S.C.A. §§ 1105a (a), 1254 (c) (2).

If Congress includes a severability clause, it is presumed to have intended each section of the Act to stand or fall on its own.

4. Statutes 64(2)

Provision of Immigration and Naturalization Act allowing either house of Congress to veto a suspension of deportation was severable from other provisions of the Act dealing with suspension of deportation. Immigration and Nationality Act, § 244 (c) (2), 8 U.S.C.A. § 1254 (c) (2).

5. Constitutional Law 42.1(1)

Alien who had been granted a suspension of deportation by the Attorney General but had had that suspension vetoed by one house of Congress had suffered sufficient injury in fact to have standing to challenge constitutionality of the statutory authorization for the onehouse veto even though it was contended that, if his challenge were successful, the entire statutory provision for suspension of deportation would have to be eliminated and he would still face deportation. Immigration and Nationality Act, § 244 (c) (2), 8 U.S.C.A. § 1254 (c) (2). 6. Federal Courts 13

Fact that alien who was challenging constitutionality of statutory provision for veto by either house of Congress of a suspension of deportation had married an American citizen, making him eligible for an immediate relative petition, did not moot his challenge where the Attorney General had declared an intention to deport the alien, which was not altered by the marriage, and where the alien would be eligible for citizenship status at an earlier date if his challenge was successful. Immigration and Nationality Act, §§ 201 (b), 204, 244 (c)(2), 8 U.S.C.A. §§ 1151 (b), 1154, 1254 (c) (2).

A case is not rendered moot simply because there is the bare possibility, or even probability, that the outcome of a separate administrative proceeding may grant the litigant identical or similar relief. 8. Constitutional Law 42.1(1)

Fact that claim asserted by alien who was challenging constitutionality of provision for veto by either house of Congress for a suspension of deportation was common to all citizens interested in separation of powers did not preclude him from having standing to maintain his challenge as he had the added motive, crucial to a sharp presentation of the issues, of being injured by the operation of the statute which he was challenging. Immigration and Nationality Act, § 244 (c) (2), 8 U.S.C.A. § 1254 (c) (2).

Fact that alien who was challenging, under separation of powers rubric, the statutory provision for either house of Congress to veto a suspension of deportation was asserting the rights of the executive and judicial branches of government did not preclude him, on the theory that he was merely asserting rights of a third party, from having standing to challenge the statutory provision. Immigration and Nationality Act, § 244 (c) (2), 8 U.S.C.A. § 1254 (c) (2).

10. Constitutional Law 68(1)

Where alien who was challenging statutory provision allowing either house of Congress to veto a suspension of deportation was not claiming that Congress had violated either the naturalization or the necessary and proper clause but merely that the statutory provision violated separation of powers doctrine, review of the challenge was not precluded on the theory that the claim presented a nonjudiciable political question. U.S.C.A.Const. Art. 1, § 8, cls. 4, 18; Immigration and Nationality Act, § 244 (c) (2), 8 U.S.C.A. § 1254 (c) (2).

It is the judiciary's prerogative, after a showing that the source of a claimant's appeal is not textually committed to another branch by the Constitution, to adjudicate a claimed excess by a coordinate branch of its constitutional powers.

Fact that the Immigration and Naturalization Service had agreed that stautory provision for either house of Congress to veto a suspension of deportation was unconstitutional did not mean that the alien's claim to that effect did not have the necessary adverseness for judicial consideration as, if the court agreed with the position asserted by the alien, he would not be deported but, if the court upheld the constitutionality of the statutory provision, the INS would execute its order and deport him. Immigration and Nationality Act, § 244 (c)(2), 8 U.S.C.A. § 1254 (c) (2).

13. Constitutional Law 50

Executive or legislative actions which contravene the principles of separation of powers are unconstitutional.

14. Aliens 40

Constitutional Law 57, 58

Statutory provision allowing either house of Congress to veto a suspension of deportation violates the constitutional doctrine of separation of powers as it intrudes upon both the executive authority to faithfully execute the laws and the judicial power to determine cases or controversies. U.S.C.A.Const. Art. 2, § 3; Art. 3, § 2; Immigration and Nationality Act, § 244 (c) (2), 8 U.S.C.A. § 1254 (c) (2).

15. Constitutional Law 50

One purpose of the doctrine of separation of powers is to prevent an unnecessary and therefore dangerous concentration of power in one branch.

One purpose of doctrine of separation of powers is to facilitate administration of a large nation by the assignment of numerous labors to designated authorities.

Violation of the doctrine of separation of powers occurs when there is an assumption by one branch of powers that are central or essential to the operation of a coordinate branch, provided that the assumption disrupts the coordinate branch in the performance of its

duties and is unnecessary to implement a legitimate policy of the government.

18. Aliens 54.1(2)

Unlike the burden on the isue of deportability, the onus is on the alien to demonstrate his satisfaction of the statutory criteria for suspension of deportation; burden is also on the alien to demonstrate the existence of such substantial equities, above and beyond the statutory prerequisites, as to persuade the inquiry officer and Attorney General to make the discretionary determination to suspend deportation. Immigration and Nationality Act, § 244(a), 8 U.S.C.A. § 1254 (a).

Aliens are entitled to a fair and uniform application of the statutory criteria of which the courts are the ultimate guarantor. 20. Constitutional Law 57

By reason of the device of congressional disapproval of suspension of order of deportation, nearly all judicial interpretations of the criteria for deportation were rendered, in effect, impermissible advisory opinions and constituted an interference with a central function of the judiciary that was both disruptive and unnecessary. Immigration and Nationality Act, § 244, 8 U.S.C.A. § 1254.

21. Constitutional Law 58

Summary reversal by the Congress of executive branch decision to suspend deportation in a single case, without indication of need to change standards or general rules to be applied, detracted from authority of the executive and, inasmuch as the legislative interference was not an attempt to alter future conduct of the executive or to change its instructions, and because no principled basis was articulated for the decision from which executive could determine with specificity the manner in which it erred, such legislative action was both disruptive of and unnecessary to sound administration of the law. Immigration and Nationality Act, § 244, 8 U.S.CA. § 1254. 22. Constitutional Law 62(1)

Authority of Congress to make laws does not permit positive law which alters the substantive legal rights of individuals to be enacted by a mere executive recommendation, which is not a final exercise of specifically delegated power to alter those legal rights, followed by legislative inaction. U.S.C.A.Const. Art. 1, § 8.

Alan B. Morrison, Washington, D.C., for petitioner.

John M. Harmon, Dept. of Justice, Eugene Gressman, Cornelius B. Kennedy, Washington, D.C., argued, for respondent; Henry C. Petersen, Washington, D.C., on brief.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before ELY, KENNEDY and HUG, Circuit Judges.
KENNEDY, Circuit Judge:

Petitioner, Jagdish Rai Chadha, seeks review of an order of deportation issued by the Immigration and Naturalization Service (INS). The Executive branch of the Government, acting by an inquiry officer

81-497 O - 81 - 22

who conducted an administrative hearing on the record, determined that Chadha, though otherwise deportable, should remain in the United States to avoid extreme hardship. Subsequently the Congress, acting only by the House of Representatives, sought to reverse that determination. If given effect, the congressional action would require Chadha's deportation. We hold that the statutory mechanism by which the Congress acted to reverse the administrative determination is unconstitutional, and therefore that the deportation order is invalid.

Chadha, a native of Kenya and a holder of a British passport, lawfully entered the United States as a nonimmigrant student in 1966. After he received his bachelor's and his master's degrees, his student visa expired in 1972. In 1974, the INS issued an order to show cause why Chadha should not be deported. A special inquiry officer then held a deportation hearing pursuant to Immigration and Nationality Act (INA) section 242 (b), 8 U.S.C. § 1252 (b) (1976). At the hearing, Chadha conceded his deportable status, but requested a suspension of deportation pursuant to INA section 244 (a) (1), 8 U.S.C. § 1254 (a) (1) (1976). The special inquiry officer granted Chadha's request, in part because he found that "it would be extremely difficult, if not impossible, for [Chadha] to return to Kenya or go to Great Britain by reason of his [East Indian] racial derivation.”

At the close of the hearing, the officer found that Chadha met the requirements of section 244 (a) (1): he had been in the United States for over seven years, was of good moral character and would suffer "extreme hardship" if deported. The officer then suspended deportation pending congressional action. The officer further ordered, however, that the proceedings would be reconvened should Congress take adverse action.

On December 16, 1975, the House of Representatives passed House Resolution 926 disapproving the suspension of Chadha's deportation. 121 Cong. Rec. 40,800 (1975). This disapproval had the effect of overriding the special inquiry officer's decision. INA § 244 (c) (2), 8 U.S.C. § 1254 (c) (2) (1976). Accordingly, Chadha's deportation proceedings were reconvened, and the INS special inquiry officer entered a final order of deportation. Chadha then unsuccessfully appealed to the Board of Immigration Appeals and now petitions this court pursuant to INA section 106 (a), 8 U.S.C. § 1105a (a) (1976).

Chadha contends that the procedure for congressional disapproval provided by section 244 (c) (2), 8 U.S.C. § 1254 (c) (2) (1976), is unconstitutional. Although he raised this contention before both the special inquiry officer and the Board of Immigration Appeals, neither decided this question as both concluded they had no power to decide the constitutionality of statutes. On this petition for review, respondent Immigration and Naturalization Service agrees that section 244 (c) (2) is unconstitutional. We therefore requested both the House of Representatives and the Senate to file briefs as amici curiae. See, e.g., Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9, 88 S.Ct. 1970, 1973 n.9, 20 L.Ed.2d 1037 (1968); Atkins v. United States, 556 F.2d 1028, 1058 (Ct.Cl. 1977) (per curiam) (en banc), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 1978. They have done so, and before we reach the merits, we must first answer various challenges to our jurisdiction and the justiciability of Chadha's case.