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Keywords

attorneyappealregulationdeportationeconomic sanctions
attorneywillregulationdeportation

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Dunat v. Hurney

Facts

Dunat, a Yugoslav seaman who jumped ship, applied for a stay of deportation, asserting that he would be physically persecuted if returned to Yugoslavia due to his Roman Catholic faith. The special inquiry officer recommended denial of the stay, which was adopted by the Regional Commissioner. Dunat contended that this decision was arbitrary and capricious, leading to his appeal after the district court upheld the denial.

Dunat, a Yugoslav seaman who jumped ship in Norfolk, Virginia, in 1956, applied to the Attorney General under the provisions of subsection 243 of the Immigration and Nationality Act, 8 U.S.C.A. 1253(h) for stay of an admittedly valid deportation order.

Issue

Did the Attorney General correctly interpret the statutory standard in denying Dunat's application for a stay of deportation under the Immigration and Nationality Act?

Did the Attorney General correctly interpret the applicable statutory standard in denying an application for stay of a deportation order and, upon our determination that he failed to do so, the power of this court in the matter.

Rule

An applicant for a stay of deportation must have their application considered in accordance with the pertinent regulations, and such consideration cannot be arbitrary or capricious.

An applicant has a right to have the application considered, and that such consideration must be given in conformity with the pertinent regulations promulgated by the Attorney General himself. The application may not be denied arbitrarily or capriciously, or be based on grounds that show a disregard of the law.

Analysis

The court determined that the Attorney General's designee misinterpreted the term 'physical persecution' by stating that denial of employment due to church membership did not constitute such persecution. The court emphasized that economic sanctions leading to the inability to earn a livelihood could indeed amount to physical persecution, thus finding the Attorney General's interpretation erroneous.

We think that this was an erroneous interpretation of that phrase. Statutory construction is a question of law, Norton v. Warner Co., 1944, 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 430, and such questions, Justice Frankfurter said in O'Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483, are 'peculiarly appropriate for independent judicial ascertainment.'

Conclusion

The court reversed the district court's judgment and remanded the case, concluding that an indefinite stay of deportation should be granted due to the potential for physical persecution based on Dunat's religious beliefs.

The Judgment and order of the district court will be reversed and the cause remanded to that court for entry of an order not inconsistent with this opinion.

Who won?

Dunat prevailed in the case because the court found that the denial of his application for a stay of deportation was based on an incorrect interpretation of the law regarding physical persecution.

The majority holds that the Attorney General through his Special Inquiry Officer erroneously interpreted the phrase 'physical persecution' when the report of the latter was adopted.

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