Cheng Fan Kwok v. Immigration and Naturalization Service/Dissent White

by Byron White

United States Supreme Court

392 U.S. 206

Cheng Fan Kwok  v.  Immigration and Naturalization Service

 Argued: May 2, 1968. --- Decided: June 10, 1968

Mr. Justice WHITE, dissenting.

If the special inquiry officer had possessed jurisdiction to issue a stay order pending petitioner's efforts to obtain discretionary relief from the District Director, I take it that his denial of the stay, like a refusal to re-open, would have been appealable to the Court of Appeals. But, as I understand it, no stay could have been granted by the hearing officer and it was sought from the District Director as an immediate consequence of there being outstanding a final order of deportation, which, if executed, might moot the underlying request for relief from the District Director. Section 106 does not limit judicial review in the Court of Appeals to orders entered 'in the course of' § 242(b) proceedings, but extends it to all orders against aliens entered 'pursuant' to such proceedings, that is, at least as Webster would have it, 'acting or done in consequence' of the § 242(b) proceedings. Except for the order of deportation, there would have been no occasion of need to seek a stay. It hardly strains congressional intention to give the word 'pursuant' its ordinary meaning in the English language. If there are reasons based on policy for the Court's contrary conclusion, they are not stated. I would reverse the judgment.

Notes