text:
    No. A-45 (82-78).
    California v. Shirley.
   Application for stay of enforcement of the judgment of the Supreme Court of California, addressed to The Chief Justice and referred to the Court, denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. A-102 (82-157).
    Smith v. Olson,
   Registrar of Voters, Orange County, California, et al. Application for injunction, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-103 (82-274).
    Pennsylvania et al. v. Delaware Valley Citizens’ Council for Clean Air et al.
   C. A. 3d Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. D-266.
    In re Disbarment of Feldman.
   Disbarment entered. [For earlier order herein, see 456 U. S. 956.]


text:
    No. D-271.
    In re Disbarment of Wajert.
   Disbarment entered. [For earlier order herein, see 456 U. S. 957.]


text:
    No. D-272.
    In re Disbarment of Langkam.
   Disbarment entered. [For earlier order herein, see 456 U. S. 957.]


text:
    No. D-277.
    In re Disbarment of Boehm.
   Disbarment entered. [For earlier order herein, see 457 U. S. 1103.]


text:
    No. D-278.
    In re Disbarment of Paglianite.
   It is ordered that Frank A. Paglianite, of Pittston, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-279.
    In re Disbarment of Resnick.
   It is ordered that David Resnick, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-261.
    In re Disbarment of Hammersmith.
   Disbarment entered. [For earlier order herein, see 456 U. S. 902.]


text:
    No. D-280.
    In re Disbarment of Stern.
   It is ordered that Julius Stern, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-281.
    In re Disbarment of Sands.
   It is ordered that Ira Jay Sands, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-282.
    In re Disbarment of Levine.
   It is ordered that Michael Levine, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-283.
    In re Disbarment of Nadel.
   It is ordered that Arthur G. Nadel, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-284.
    In re Disbarment of Fishman.
   It is ordered that Gregg Lewis Fishman, of Forest Hills, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-285.
    In re Disbarment of Gloeckner.
   It is ordered that George N. Gloeckner, of Columbus, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-286.
    In re Disbarment of Nadler.
   It is ordered that Floyd Norman Nadler, of Chicago, 111., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-287.
    In re Disbarment of Bonds.
   It is ordered that Rodney S. Bonds, of Baltimore, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-288.
    In re Disbarment of Lieberman.
   It is ordered that Sidney Z. Lieberman, of McLean, Va., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-289.
    In re Disbarment of Brisbois.
   It is ordered that James A. Brisbois, of Saginaw, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 81-430.
    Illinois v. Gates et ux.
   Sup. Ct. Ill. [Certiorari granted, 454 U. S. 1140.] Motion of respondents for divided argument denied.


text:
    No. D-290.
    In re Disbarment of Spiro.
   It is ordered that Demetri M. Spiro, of Chicago, 111., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-291.
    In re Disbarment of Sundock.
   It is ordered that Michael A. Sundock, of Opelika, Ala., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-292.
    In re Disbarment of Fendler.
   It is ordered that Robert Harold Fendler, of Beverly Hills, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 80-1640.
    No. 80-1656.
    United States Nuclear Regulatory Commission et al. v. Sholly et al.; and Metropolitan Edison Co. et al. v. People Against Nuclear Energy et al.
   C. A. D. C. Cir. [Certiorari granted, 451 U. S. 1016.] Motion of respondents for further deferral of oral argument granted.


text:
    No. 81-185.
    Simopoulos v. Virginia.
   Sup. Ct. Va. [Probable jurisdiction noted, 456 U. S. 988.] Motions of National Organization for Women et al., Committee for Abortion Rights and Against Sterilization Abuse et al., and Certain Law Professors for leave to file briefs as amici curiae granted.


text:
    No. 81-334.
    Associated General Contractors of California, Inc. v. California State Council of Carpenters et al.
   C. A. 9th Cir. [Certiorari granted, 454 U. S. 1141.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a supplemental brief as amicus curiae granted.


text:
    No. 81-523.
    Container Corporation of America v. Franchise Tax Board.
   Ct. App. Cal., 1st App. Dist. [Probable jurisdiction noted, 456 U. S. 960.] Motions of Union of Industries of the European Community and Committee on Unitary Tax for leave to file briefs as amici curiae granted. Motion of Committee on State Taxation of the Council of State Chambers of Commerce for leave to participate in oral argument as amicus curiae and for additional time for argument denied.

Justice Stevens took no part in the consideration or decision of these motions.


text:
    No. 81-680.
    No. 81-1076.
    Herman & MacLean v. Huddleston et al.; and Huddleston et al. v. Herman & MacLean et al.
   C. A. 5th Cir. [Certiorari granted, 456 U. S. 914.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 81-773.
    North Dakota v. United States.
   C. A. 8th Cir. [Probable jurisdiction noted, 455 U. S. 987.] Motion of National Wildlife Federation et al. for leave to file a brief as amici curiae granted.


text:
    No. 81-897.
    Director, Office of Workers’ Compensation Programs, United States Department of Labor v. Perini North River Associates et al.
   C. A. 2d Cir. [Certiorari granted, 455 U. S. 937.] Motion of the Solicitor General for divided argument denied. Motion of the Solicitor General to permit Richard G. Wilkins, Esquire, to present oral argument pro hac vice granted.


text:
    No. 81-1003.
    White, Mayor of Boston, et al. v. Massachusetts Council of Construction Employers, Inc., et al.
   Sup. Jud. Ct. Mass. [Certiorari granted, 455 U. S. 919.] Motion of American Federation of Labor and Congress of Industrial Organizations et al. for leave to file a brief as amici curiae granted.


text:
    No. 81-1251.
    Connick, District Attorney in and for the Parish of Orleans, Louisiana v. Myers.
   C. A. 5th Cir. [Certiorari granted, 455 U. S. 999.] Motions of National Education Association et al. and American Civil Liberties Union et al. for leave to file briefs as amici curiae granted.


text:
    No. 81-1489.
    Xerox Corp. v. County of Harris, Texas, et al.
   Ct. App. Tex., 1st Sup. Jud. Dist. [Probable jurisdiction noted, 456 U. S. 913.] Motion of International Association of Assessing Officers for leave to file a brief as amicus curiae granted.


text:
    No. 81-1493.
    Gillette Co. v. Miner.
   Sup. Ct. Ill. [Certiorari granted, 456 U. S. 914.] Motions of Public Citizen and Consumer Coalition for leave to file briefs as amici curiae granted.


text:
    No. 81-1506.
    Federal Election Commission et al. v. National Right to Work Committee et al.
   C. A. D. C. Cir. [Certiorari granted, 456 U. S. 914.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 81-1578.
    Kramarsky, Commissioner, New York State Division of Human Rights, et al. v. Delta Air Lines, Inc., et al.; Kramarsky, Commissioner, New York State Division of Human Rights v. Burroughs Corp.; and Kramarsky, Commissioner, New York State Division of Human Rights, et al. v. Metropolitan Life Insurance Co.
   C. A. 2d Cir. [Probable jurisdiction noted, 456 U. S. 924.] Motion of American Federation of Labor and Congress of Industrial Organizations et al. for leave to file a brief as amici curiae granted. Motion of appellants Kramarsky et al. for divided argument and for leave to file separate brief and joint appendix denied.


text:
    No. 81-1613.
    Memphis Bank & Trust Co. v. Garner, Shelby County Trustee, et al.
   Sup. Ct. Tenn. [Probable jurisdiction noted, 456 U. S. 943.] Motions of Capital Preservation Fund, Inc., et al. and Farm Credit Banks for leave to file briefs as amici curiae granted.


text:
    No. 81-1627.
    Shepard v. National Labor Relations Board et al.
   C. A. D. C. Cir. [Certiorari granted, 456 U. S. 970.] Motion of the Solicitor General for divided argument and for additional time for oral argument denied.


text:
    No. 88, Orig.
    No. 89, Orig.
    No. 80-108.
    No. 80-1538.
    No. 80-1934.
    No. 80-1749.
    No. 80-2138.
    No. 80-6609.
    No. 81-451.
    No. 81-912.
    California v. Texas et al., California ex rel. State Lands Commission v. United States, First Pennsylvania Bank N.A. v. Zeffiro et al., Plyler, Superintendent, Tyler Independent School District, et al. v. Doe, Guardian, et al., Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al., Federal Energy Regulatory Commission et al. v. Mississippi et al., Carter v. Dayton Board of Education et al., Wilkerson v. Blackburn, Warden, Hathorn et al. v. Lovorn et al., Click et al. v. Idaho ex rel. Evans, Governor of Idaho, et al.,
   457 U. S. 164;

457 U. S. 273;

456 U. S. 1005;

457 U. S. 202;

457 U. S. 202;

456 U. S. 742;

456 U. S. 989;

ante, p. 1105;

457 U. S. 255; and

457 U. S. 1116. Petitions for rehearing denied.


text:
    No. 81-1478.
    No. 81-1525.
    No. 81-1534.
    No. 81-1577.
    No. 81-1589.
    No. 81-1665.
    No. 81-1822.
    No. 81-2009.
    No. 81-2016.
    No. 81-2018.
    No. 81-2045.
    No. 81-5578.
    No. 81-5731.
    No. 81-6528.
    No. 81-6546.
    No. 81-6559.
    No. 81-6573.
    No. 81-6630.
    No. 81-6645.
    No. 81-6652.
    No. 81-6654.
    Harvey et al. v. Federal Energy Regulatory Commission et al., Thompson v. Woltenberg, Nieves v. United States, Board of Education of Rogers, Arkansas, et al. v. McCluskey, by his Next Friend, McCluskey, Hunt v. Collins, Dykema et al. v. United States et al., Fiala v. Village of Carpentersville, Yeo v. Michigan, Ruppel v. United States, Berger v. United States et al., Niemi v. National Broadcasting Co., Inc., et al., Brewer v. Indiana, Hyman v. South Carolina, Maselli v. State Board of Equalization of California, Paschal v. Florida Public Employees Relations Commission et al., Black v. East Ohio Gas Co. et al., Harrington v. Tennessee, Hoover v. Mississippi, Ritter v. Ritter, Neustein v. United States, United States ex rel. Miller v. McCarthy, Superintendent, California Men’s Colony, et al.,
   457 U. S. 1105.

456 U. S. 1006;

457 U. S. 1117;

ante, p. 966;

457 U. S. 1127;

456 U. S. 983;

456 U. S. 990;

457 U. S. 1134;

ante, p. 1107;

457 U. S. 1120;

ante, p. 1108;

ante, p. 1122;

ante, p. 1122;

457 U. S. 1108;

457 U. S. 1109;

457 U. S. 1109;

457 U. S. 1110;

457 U. S. 1137;

457 U. S. 1138;

457 U. S. 1124; and

ante, p. 1109. Petitions for rehearing denied.


text:
    No. 81-6673.
    No. 81-6685.
    No. 81-6691.
    No. 81-6715.
    No. 81-6771.
    Occhino v. Northwestern Bell Telephone Co. et al., Williams v. Pepsi-Cola Bottling Company of St. Louis, Missouri, et al., Sutain et al. v. Commissioner of Internal Revenue, In re Campbell, In re Kulwiec,
   457 U. S. 1139;

457 U. S. 1139;

ante, p. 1110;

457 U. S. 1116; and

ante, p. 1104. Petitions for rehearing denied.


text:
    No. 80-1290.
    Clements, Governor of Texas, et al. v. Fashing et al.,
   457 U. S. 957. Petition for rehearing and/or clarification denied.


text:
    No. 80-6045.
    Kremer v. Chemical Construction Corp.,
   456 U. S. 461. Motion for leave to file petition for rehearing denied.


text:
    September 20, 1982
    No. 81-2284.
    Butcher v. United States.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Powell, Circuit Justice.

text:
    WHITE v. FLORIDA
    No. A-130.
    Decided August 13, 1982
   Justice Powell, Circuit Justice.

William White has requested me as Circuit Justice to stay the judgment and mandate of the Supreme Court of Florida pending filing and disposition of his petition for a writ of certiorari. A state trial court convicted White of first-degree murder and sentenced him to death. The Florida Supreme Court upheld both the conviction and sentence. 415 So. 2d 719 (1982). It denied rehearing on July 8, 1982, and stayed the mandate until August 9, 1982, requiring White to seek any further stay from this Court.

In his application for a stay, filed by counsel, White states that he intends to file a petition for a writ of certiorari because the judgment affirming his conviction and sentence is “in violation of [the] rights secured by the Constitution of the United States.” His application does not suggest any more specific basis for seeking the writ. The only reason advanced by White for staying the mandate is that, absent a stay, administrative proceedings culminating in the execution of his sentence will be instituted on August 9. The State has responded, however, that the threat of execution is not imminent. No execution date has been set, and the State does not contemplate that one will be set in the near future.

The standards for granting a stay of mandate pending disposition of a petition for certiorari are well established:

“[Tjhere must be a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers).

See Karcher v. Daggett, 455 U. S. 1303 (1982) (Brennan, J., in chambers); Whalen v. Roe, 423 U. S. 1313, 1316 — 1317 (1975) (Marshall, J., in chambers). Although White’s application establishes that he may suffer irreparable harm at some point in the future, there is no indication that the harm is imminent. Additionally, White’s application does not specify either the issues for which certiorari will be sought or the reasons why review is appropriate. In the absence of such information, I am unable to determine whether there is a reasonable probability that four Members of the Court would find that this case merits review. Because there is no threat of imminent harm and no basis for determining whether certiorari would be granted, the request for a stay is denied.


author: Justice Rehnquist, Circuit Justice.

text:
    BELTRAN v. SMITH et al.
    No. A-208.
    Decided August 26, 1982
   Justice Rehnquist, Circuit Justice.

Applicant Arturo Beltran, a former member of the Nuestra Familia criminal organization, is currently incarcerated in the Metropolitan Correction Center in San Diego on the basis of several criminal convictions in state courts. Because Beltran is cooperating with state and federal authorities by testifying in pending prosecutions, and because federal officials have determined that his cooperation has created a risk to him, he is in federal custody in the witness protection program. See 18 U. S. C. § 5003; Organized Crime Control Act of 1970, Title V, §§501-503 of the Act of Oct. 15, 1970, Pub. L. 91-452, 84 Stat. 933, note preceding 18 U. S. C. §3481.

In July 1982, federal officials decided to transfer Beltran to another federal facility where he would remain in the witness protection program. On July 20, Beltran filed a complaint for declaratory relief and an application for a temporary restraining order in the Southern District of California. The District Court entered a temporary restraining order and set a hearing for the next morning. Between July 22 and July 30, the court held three hearings and received extensive briefs.

Beltran contended in the District Court that he would be in more, danger at any other facility than at San Diego, in part because he would have to return to California to testify and the trips back and forth would be dangerous. He also claimed that he was entitled to remain in San Diego under the terms of his plea bargain with state officials. On July 30, the District Court denied a preliminary injunction. It ruled from the bench that Beltran had not demonstrated the requisite irreparable injury. Although there would be an added danger from the additional movement that the transfer would require, the court held that there was no indication that the federal officials charged with his movement would not take all necessary precautions, and that the added risk does not rise to immediate irreparable harm.

Beltran appealed to the Court of Appeals and sought a stay pending appeal. On July 30, the Court of Appeals granted a temporary stay and ordered the Government to file á response. On August 24, the Court of Appeals vacated its temporary stay, denied a motion for an injunction pending appeal, and denied a motion for a temporary stay pending application to this Court. Beltran’s appeal from the denial of the preliminary injunction remains pending in the Court of Appeals.

Beltran has applied to me in my capacity as Circuit Justice for an emergency stay while his appeal to the Court of Appeals is pending. Beltran fears that he will be killed if he is transferred. He states that there is no guarantee that a new facility will offer him as much safety and security as his current location. Finally, Beltran claims that part of his security in his current location is based on his familiarity with prison personnel and inmates and that once he is moved he will be unable to return to the Metropolitan Correction Center in San Diego and enjoy the same degree of safety because the prison’s population and personnel will change in the interim.

There is always a risk that Beltran will be attacked; this is why he is in the witness protection program. Although Beltran may be correct that that risk will be increased if he is moved, there is no indication that the officials responsible for the program will not continue to provide him with protection under the terms of the program. Beltran has not submitted to me any evidence sufficiently compelling to overcome the conclusion of the courts below that any increased risk he may bear does not rise to the level of irreparable injury. Indeed, Beltran’s contentions are, in essence, that he is more comfortable and feels safer where he is than he would elsewhere. The Attorney General has authority to transfer Beltran from one facility to another in his discretion. 18 U. S. C. § 4082(b). In the light of the conclusions of the District Court and the Court of Appeals, Beltran’s claims are insufficient to justify me in interfering with the Attorney General’s discretion to run the prison system. See generally Bell v. Wolfish, 441 U. S. 520, 562 (1979).

For these reasons, the application is denied.


author: Justice Brennan, Circuit Justice.

text:
    CORSETTI v. MASSACHUSETTS
    No. A-226.
    Decided September 1, 1982
   Justice Brennan, Circuit Justice.

Applicant has applied to me for a stay, pending this Court’s review on certiorari, of the judgment of the Massachusetts Supreme Judicial Court affirming applicant’s conviction of criminal contempt in the Massachusetts Superior Court and of the 90-day sentence imposed for such contempt. 387 Mass. 1, 438 N. E. 2d 805 (1982).

The principles that control my determination as Circuit Justice of this in-chambers application were stated, in pertinent part, in Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers):

“Relief from a single Justice is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct. ... In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a ‘reasonable probability’ that four Justices will consider the issue sufficiently meritorious to grant certiorari.... Second, the applicant must persuade [the Circuit Justice] that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous. . . . Third, there must be a demonstration that irreparable harm is likely to result from the denial of a stay. . . . And fourth, in a close case it may be appropriate to ‘balance the equities’ — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.”

My task is not to adjudicate this application on my own view of the merits of the federal questions presented, but rather to determine whether there is a “reasonable probability” that four Justices will consider the issues sufficiently meritorious to grant the petition of certiorari, and, if so, whether there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous. Neither event can be predicted with anything approaching certainty, but nonetheless I have concluded that there is not a reasonable probability that certiorari will be granted, and that in any event there is not a fair prospect of reversal. Although applicant has demonstrated that he will suffer irreparable harm, he has not demonstrated that the balance of equities in his favor is sufficient to overcome my strong doubt that certiorari will be granted or, in any event, that the judgment will be reversed. Accordingly, the application is denied.


text:
    CALIFORNIA ex rel. STATE LANDS COMMISSION v. UNITED STATES
    No. 89,
    Orig.
    Decided June 18, 1982
    Decree entered October 18, 1982
   DECREE

For the purpose of giving effect to the decision of this Court herein, announced June 18, 1982, 457 U. S. 273, rehearing having been denied on September 9, 1982, 458 U. S. 1131,

It Is Ordered, Adjudged, and Decreed:

1. As against the State of California and all those claiming under it, the United States holds all right, title and interest in the parcel of land described in the Complaint filed herein and in Exhibit A hereto, the seaward boundary of which shall be the line of mean high water of the Pacific Ocean, as heretofore or hereafter modified by accretion, erosion or reliction, whether attributable to natural or artificial causes;

2. The State of California has no right, title or interest in the said parcel of land, and the State, its agencies, political subdivisions, officers and agents, and all those claiming under them or in privity with them, are enjoined from interfering in any way with the right, title, and interest of the United States in the said parcel;

3. Each party shall bear its own costs.

EXHIBIT A

All that certain real property in the State of California, County of Humboldt situated in Townships 4 and 5 North, Range 1 West, Humboldt Base & Meridian (“HB&M”) and particularly described as follows:

COMMENCING at the east lU comer of Section 31, Township 5 North, Range 1 West HB&M, thence from said point of commencement; N 88°01'20" W, 1981.14 feet along the north line of U. S. Lot 3 of said Section 31, as said lot is shown on the official United States Government Township Plat, to the United States Meander Line of the Pacific Ocean as surveyed by J. S. Murray under contract dated October 18, 1854, and the TRUE POINT OF BEGINNING: thence from said true point of beginning southerly along the shore of the Pacific Ocean with the meander lines of said Section 31 the following (3) courses:

1. S 14°38'54" W, 395.44 feet;
2. S 03°38'54" W, 1863.84 feet; and
3. S 10°21'06" E, 400.10 feet; to the United States Meander Corner on the Township line common to said Townships 4 and 5 North Range 1 West; thence southerly along the shore of the Pacific Ocean with the meander lines of Section 6 of Township 4 North, Range 1 West as surveyed by J. H. Miller under contract dated October 19, 1854, the following (3) courses:
1. S 08°24'17" W, 968.24 feet;
2. S 01°24'17" W, 869.50 feet; and
3. S 11°35'43" E, 646.26 feet more or less to the centerline of the North Jetty at the entrance to Humboldt Bay; thence westerly along said centerline the following (6) courses:
1. N 75°15'58" W, 307.31 feet;
2. N 65°00'58" W, 431.97 feet;
3. N 52°05'24" W, 442.91 feet;
4. N 53°15'24" W, 408.72 feet;
5. N 50°02'05" W, 400.00 feet;
6. N 46°08'24" W, 1427 feet more or less to the line of mean high water of the Pacific Ocean; thence northerly along said line of mean high water to a point which bears N 88°01' 20" W, from the true point of beginning; thence S 88°01'20" E, along the north line of U. S. Lot 3, of Section 31 of Township 5 North, Range 1 West produced, to the true point of beginning.

Bearings and distances are based on the State of California Coordinate System (Lambert Conformal Projection), Zone 1, derived locally from that certain map entitled “Record of Survey, Surplus Property,” recorded in Book 29 of Surveys at Page 137, Humboldt County Records as surveyed by the United States Coast Guard; 12th District.


author: Per Curiam. Justice Stevens,

text:
    ANDERSON, WARDEN v. HARLESS
    No. 81-2066.
    Decided November 1, 1982
   Per Curiam.

Respondent was convicted of two counts of first-degree murder and was sentenced to life imprisonment. The Michigan Court of Appeals affirmed respondent’s conviction, Peo ple v. Harless, 78 Mich. App. 745, 261 N. W. 2d 41 (1977), and the Michigan Supreme Court, on review of the record, denied respondent’s request for relief. App. to Pet. for Cert. 30a.

Respondent then filed a petition for writ of habeas corpus, pursuant to 28 U. S. C. § 2254, in the United States District Court for the Eastern District of Michigan. He alleged, inter alia, that the trial court’s instruction on “malice”— a crucial element in distinguishing between second-degree murder and manslaughter under Michigan law — was unconstitutional. In particular, respondent focused on the following language from the trial court’s lengthy charge:

“Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied [sic] by the use of a gun against another.” App. to Pet. for Cert. 59a.

Relying primarily on Sandstrom v. Montana, 442 U. S. 510 (1979), the District Court held that this instruction unconstitutionally shifted the burden of proof to respondent and was inconsistent with the presumption of innocence. 504 F. Supp. 1135 (1981). The court also held that respondent had exhausted available state-court remedies, as required by 28 U. S. C. §§2254 (b) and (c), since his conviction had been reviewed by both the Michigan Court of Appeals and the Michigan Supreme Court. The District Court ordered that the application for writ of habeas corpus be granted unless respondent was retried within 90 days.

The United States Court of Appeals for the Sixth Circuit affirmed. 664 F. 2d 610 (1982). The court held that respondent’s claim had been properly exhausted in the state courts, because respondent had presented to the Michigan Court of Appeals the facts on which he based his federal claim and had argued that the malice instruction was “reversible error.” See People v. Harless, supra, at 748, 261 N. W. 2d, at 43. The court also emphasized that respondent, in his brief to the Michigan Court of Appeals, had cited People v. Martin, 392 Mich. 553, 221 N. W. 2d 336 (1974) — a decision predicated solely on state law in which no federal issues were decided, but in which the defendant had argued broadly that failure to properly instruct a jury violates the Sixth and Fourteenth Amendments. In the view of the United States Court of Appeals, respondent’s assertion before the Michigan Court of Appeals that the trial court’s malice instruction was erroneous, coupled with his citation of People v. Martin, supra, provided the Michigan courts with sufficient opportunity to consider the issue encompassed by respondent’s subsequent federal habeas petition.

We reverse. In Picard v. Connor, 404 U. S. 270 (1971), we made clear that 28 U. S. C. § 2254 requires a federal ha-beas petitioner to provide the state courts with a “fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim. Id., at 276-277. It is not enough that all the facts necessary to support the federal claim were before the state courts, id., at 277, or that a somewhat similar state-law claim was made. See, e. g., Gayle v. LeFevre, 613 F. 2d 21 (CA2 1980); Paullet v. Howard, 634 F. 2d 117, 119-120 (CA3 1980); Wilks v. Israel, 627 F. 2d 32, 37-38 (CA7), cert. denied, 449 U. S. 1086 (1980); Conner v. Auger, 595 F. 2d 407, 413 (CA8), cert. denied, 444 U. S. 851 (1979). In addition, the habeas petitioner must have “fairly presented” to the state courts the “substance” of his federal habeas corpus claim. Picard, supra, at 275, 277-278. Cf. Rose v. Lundy, 455 U. S. 509, 518 (1982).

In this case respondent argued on appeal that the trial court’s instruction on the element of malice was “erroneous.” He offered no support for this conclusion other than a citation to, and three excerpts from, People v. Martin, supra — a case which held that, under Michigan law, malice should not be implied from the fact that a weapon is used. See App. to Pet. for Cert. 47a-49a, 51a-53a. Not surprisingly, the Michigan Court of Appeals interpreted respondent’s claim as being predicated on the state-law rule of Martin, and analyzed it accordingly. 78 Mich. App., at 748-750, 261 N. W. 2d, at 43.

The United States Court of Appeals concluded that “the due process ramifications” of respondent’s argument to the Michigan court “were self-evident,” and that respondent’s “reliance on Martin was sufficient to present the state courts with the substance of his due process challenge to the malice instruction for habeas exhaustion purposes.” 664 F. 2d, at 612. We disagree. The District Court based its grant of habeas relief in this case on the doctrine that certain sorts of “mandatory presumptions” may undermine the prosecution’s burden to prove guilt beyond a reasonable doubt and thus deprive a criminal defendant of due process. See Sandstrom, supra; In re Winship, 397 U. S. 358 (1970). The Court of Appeals affirmed on the same rationale. However, it is plain from the record that this constitutional argument was never presented to, or considered by, the Michigan courts. Nor is this claim even the same as the constitutional claim advanced in Martin — the defendant there asserted a broad federal due process right to jury instructions that “properly explain” state law, 392 Mich., at 558, 221 N. W. 2d, at 339, and did not rely on the more particular analysis developed in cases such as Sandstrom, supra. Since it appears that respondent is still free to present his Sandstrom claim to the Michigan Court of Appeals, see People v. Berry, 10 Mich. App. 469, 474-475, 157 N. W. 2d 310, 312-313 (1968), we conclude that he has not exhausted his available state-court remedies as required by 28 U. S. C. § 2254. Accordingly, the petition for certiorari and respondent’s motion for leave to proceed in forma pauperis are granted, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Few issues consume as much of the scarce time of federal judges as the question whether a state prisoner adequately exhausted his state remedies before filing a petition for a federal writ of habeas corpus. Distressingly, the Court seems oblivious of this fact and takes action in this case that can only exacerbate that problem.

On the merits the question presented by this case is whether a somewhat garbled jury instruction contained a mandatory presumption that required a finding of malice or merely a permissive inference that allowed the jury to make such a finding. The parties seem to agree that if the instruction is considered mandatory, the respondent’s conviction must be set aside under principles that are well settled in Michigan and in the federal courts.

The Michigan Court of Appeals rejected respondent’s construction of the jury instruction and therefore affirmed his conviction. After the Supreme Court of Michigan denied leave to appeal and after the state trial court denied a subsequent motion for a new trial, respondent commenced this federal habeas corpus proceeding.

The Federal District Court carefully analyzed the difference between a permissive inference and a mandatory presumption and concluded that the Michigan Court of Appeals’ construction of the jury instruction was simply untenable. 504 F. Supp. 1135, 1138 (1981). It also .considered and rejected the argument that the respondent had not exhausted his state remedies. Id., at 1139.

On appeal, the Court of Appeals for the Sixth Circuit affirmed, 664 F. 2d 610 (1982). That court first carefully considered the Warden’s contention that respondent’s state remedies had not been exhausted because his federal claim had not been fairly presented to the state courts. After explaining in some detail why the federal claim necessarily presented the very question that the state court had already resolved against the respondent, the Court of Appeals concluded “that the Michigan courts had a fair opportunity to consider the issue encompassed by Harless’ habeas corpus petition.” Id., at 612. Thereafter, the Court of Appeals reviewed and upheld the District Court’s holding on the merits.

I agree with the sensible approach to the exhaustion issue that was followed by the District Court and the Court of Appeals. I also believe that approach was entirely faithful to Picard v. Connor, 404 U. S. 270, which requires only that the “substance” of the federal claim (not the form) be “fairly presented” to the state courts. In this case the only arguable justification for dismissing the petition for failure to exhaust is a possibility that the state court might decide the instruction issue differently if phrased in terms of Sandstrom v. Montana, 442 U. S. 510, rather than in terms of People v. Martin, 392 Mich. 553, 221 N. W. 2d 336 (1974). See n. 4, supra. That possibility is virtually nonexistent. The Court apparently perceives this case as a simple application of Picard; I think it can only be explained as an expansion of Picard. Such an expansion should be accompanied by a more careful analysis than the Court provides in this case, and it should not be undertaken without full briefing and argument.

But even if I shared the Court’s analysis of the exhaustion question in this particular case, I would nevertheless take issue with its decision to grant certiorari for the sole purpose of correcting what it considers to be a technical, procedural error. It is not appropriate for this Court to expend its scarce resources crafting opinions that correct technical errors in cases of only local importance where the correction in no way promotes the development of the law.

If the Court of Appeals was correct in its appraisal of the merits, the respondent should be given a prompt retrial. If that court was incorrect on the merits, nothing will be gained by requiring the respondent to present his claim to three more sets of Michigan judges and two more sets of federal judges before this Court decides whether the substantive error merits our review. Cf. Rose v. Lundy, 455 U. S. 509, 545 (Stevens, J., dissenting).

I respectfully dissent.

       Respondent was convicted oí first-degree murder, which requires proof not only of “malice” but also of premeditation. For this reason, petitioner argues that any error in the trial court’s definition of malice was harmless. In light of our disposition, we do not reach the issue.

       Respondent was represented by counsel on appeal.

       We doubt that a defendant’s citation to a state-court decision predicated solely on state law ordinarily will be sufficient to fairly apprise a reviewing court of a potential federal claim merely because the defendant in the cited case advanced a federal claim. However, it is clear that such a citation is insufficient when, as here, the federal claim asserted in the cited case is not even the same as the federal claim on which federal habeas relief is sought. See Picard v. Connor, 404 U. S. 270, 276 (1971).

       The instruction stated:
      “Members of the jury, the term malice is a technical term which has to do with the doing of a cruel act against another human being without excuse or justification. The doing of a cruel act against another human being without excuse or justification. Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied by the use of a gun against another.” App. to Pet. for Cert. 59a.

       See People v. Martin, 392 Mich. 553, 221 N. W. 2d 336 (1974).

       Compare Ulster County Court v. Allen, 442 U. S. 140, with Sandstrom v. Montana, 442 U. S. 510.

       Because this Court’s description of the Court of Appeals’ treatment of the exhaustion issue is so abbreviated it seems appropriate to quote in full the relevant portion of that opinion:
      “In our view, Harless adequately exhausted available state remedies for purposes of 28 U. S. C. §§ 2254(b) and (c). The respondent concedes that Harless presented to the state appellate courts all the facts on which he based his federal constitutional claim. Respondent contends, however, that the state courts had no opportunity to correct the constitutional error, because Harless did not explicitly complain to the state courts that the malice instruction denied him due process.
      “Although we do not have before us Harless’ state appellate papers, we learn from the Michigan Court of Appeals opinion the substance of Harless’ contention before that court: ‘The trial court committed reversible error by instructing the jury incorrectly on the implication [sic] of malice that might be drawn from defendant’s use of a deadly weapon, the effect of which was to remove the possible finding of manslaughter.’ People v. Harless, 261 N. W. 2d 41, 43 (1977) (emphasis added). At Harless’ trial the court gave the following definition of malice to the jury:
      “‘Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied [sic] by the use of a gun against another’ (emphasis added).
      “Harless claimed on appeal that this instruction was reversible error under People v. Martin, 392 Mich. 553, 221 N. W. 2d 336 (1974), a case holding that the law does not imply malice from the use of a deadly weapon. In Martin, appellant challenged his murder conviction on numerous state and constitutional grounds. The gist of Martin’s appeal was that he was denied a fair trial because certain instructions failed to provide the jury with sufficient understanding of the elements of the crimes charged, to enable them to perceive the crucial distinctions between first and second degree murder, and manslaughter. In particular, Martin challenged a malice instruction in which the jury was informed that the law implies malice from the use of a deadly weapon. The Court of Appeals ultimately decided as a matter of state law that the malice instruction ‘erroneously categorized [the issue of malice] as a presumption of law rather than a permissible inference.’ 221 N. W. 2d, at 341. However, Martin’s constitutional argument was broadly phrased: failure to explain the law properly to a jury through adequate instructions abridges the due process right to a fair trial. The Court of Appeals neither rejected nor refined this constitutional argument. Rather, it seems to have accepted it tacitly, for in response to defendant’s argument that his Sixth and Fourteenth Amendment rights to a fair trial had been abridged by an inadequate manslaughter instruction, the court stated that ‘an erroneous or misleading charge denies the defendant the right to have a properly instructed jury pass upon the evidence.’ Id., at 341. Although it did not specifically label this a. federal right, the court clearly felt that a properly instructed jury is a prerequisite to a fair trial.
      “In our view, Harless’ reliance on Martin was sufficient to present the state courts with the substance of his due process challenge to the malice instruction for habeas exhaustion purposes. The substance of Harless’ state appeal, although unartfully phrased, sufficiently asked the state court to consider that the incorrect malice instruction denied Harless a fair jury trial by effectively eliminating the possibility of a manslaughter verdict from the jury’s consideration. In our view, the due process ramifications were self-evident. Under Picard v. Connor, 404 U. S. 270 . . . (1971), a habeas petitioner need not label his state claim as federal or constitutional. Given the elasticity of the due process concept, we are convinced that the Michigan courts had a fair opportunity to consider the issue encompassed by Harless’ habeas corpus petition.” 664 F. 2d, at 611-612.

       In Picard, the habeas petitioner had argued in the Massachusetts courts that his indictment had been contrary to Massachusetts law and that, if the procedures used in his case had been in accord with Massachusetts law, then those procedures could not be approved without reference to whether the Fifth Amendment’s requirement of a grand jury indictment applied to the States through incorporation in the Fourteenth Amendment. 404 U. S., at 277. This Court held that such an argument did not give the State a fair opportunity to consider the proposition that its treatment of the petitioner denied him equal protection, in view of the Commonwealth’s otherwise universal commitment to grand jury indictments in felony cases.
      In this case, the federal courts ordered habeas relief on the theory that the “operative effect” of the instruction quoted above was to cause the jury to use an unconstitutional mandatory presumption of malice. It held that the instruction was therefore inconsistent with Sandstrom, supra. 664 F. 2d, at 612. Accord, ante, at 7. In state court, the defendant had argued that the instruction was inconsistent with People v. Martin, supra, because Martin had struck down an instruction that caused the jury to use a mandatory presumption of malice. See People v. Harless, 78 Mich. App. 745, 749, 261 N. W. 2d 41, 43 (1977). The substance of the argument— that the instruction deprived him of fair jury consideration because it created a mandatory presumption of malice — is the same.

       In many respects this case is merely a sequel to Board of Education of Rogers, Ark. v. McCluskey, 458 U. S. 966. In my dissent in that case, I observed:
      “As Justice Rehnquist has reminded us, in ‘our zeal to provide “equal justice under law,” we must never forget that this Court is not a forum for the correction of errors.’ Boag v. MacDougall, 454 U. S. 364, 367-368 (1982) (dissenting opinion). ‘To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.’ This case illustrates how ineffectively the Court is supervising its discretionary docket.” Id., at 971 (footnote omitted).


author: Per Curiam. Justice Marshall,

text:
    IMMIGRATION AND NATURALIZATION SERVICE v. MIRANDA
    No. 82-29.
    Decided November 8, 1982
   Per Curiam.

Respondent Horacio Miranda, a citizen of the Philippines, entered the United States in. 1971 on a temporary visitor’s visa. After his visa expired, he stayed in this country, eventually marrying Linda Milligan, a citizen of the United States, on May 26, 1976. Shortly thereafter, Milligan filed a visa petition with the Immigration and Naturalization Service (INS) on respondent’s behalf. She requested that he be granted an immigrant visa as her spouse. Respondent simultaneously filed an application requesting the INS to adjust his status to that of a permanent resident alien. Section 245(a) of the Immigration and Nationality Act of 1952 conditions the granting of permanent resident status to an alien on the immediate availability of an immigrant visa. Milligan’s petition, if approved, would have satisfied this condition.

The INS did not act on either Milligan’s petition or respondent’s application for 18 months. Following the breakup of her marriage with respondent, Milligan withdrew her petition in December 1977. At that point, the INS denied respondent’s application for permanent residence because he had not shown that an immigrant visa was immediately available to him. The INS also issued an order to show cause why he should not be deported.

At a deportation hearing, respondent conceded his depor-tability but renewed his application for permanent resident status because of his marriage to Milligan. Although the marriage had ended, he claimed that a previous marriage was sufficient to support his application. The Immigration Judge rejected this claim, concluding that the immediate availability of an immigrant visa was a necessary condition to respondent’s application. Since Milligan had withdrawn her petition for an immigrant visa before the INS had acted on it, respondent was ineligible for permanent resident status.

Respondent appealed the decision to the Board of Immigration Appeals. For the first time, he raised the claim that the INS was estopped from denying his application because of its “unreasonable delay.” He argued that the “failure to act was not only unreasonable, unfair and unjust but also an abuse of governmental process if the delay was deliberate.” Record 44. The Board rejected respondent’s claim. It found “no evidence of any ‘affirmative misconduct’” and no basis for an equitable estoppel. Id., at 4.

Respondent sought review of the Board’s decision in the Court of Appeals for the Ninth Circuit. The Court of Appeals reversed, holding that “[t]he unexplained failure of the INS to act on the visa petition for an eighteen-month period prior to the petitioner’s withdrawal. . . was affirmative misconduct by the INS.” Miranda v. INS, 638 F. 2d 83, 84 (1980). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of Schweiker v. Hansen, 450 U. S. 785 (1981). 454 U. S. 808 (1981).

On remand, the Court of Appeals adhered to its earlier decision. 673 F. 2d 1105 (1982) (per curiam). It found Hansen inapplicable for three reasons. First, the Government’s conduct in Hansen had not risen to the level of affirmative misconduct. In this case, however, affirmative misconduct was established by the INS’s unexplained delay in processing respondent’s application. Second, although the private party in Hansen subsequently had been able to correct the Government’s error, the INS’s error here inflicted irrevocable harm on respondent. Finally, unlike the private party in Hansen who sought to recover from the public treasury, respondent was seeking only to become a permanent resident — a result that would entail no burden on the public fisc. The Court of Appeals determined that “the Supreme Court’s conclusion that the government was not estopped in Hansen neither compels nor suggests the same conclusion here.” 673 F. 2d, at 1106.

In Hansen, we did not consider whether estoppel will lie against the Government when there is evidence of affirmative misconduct. We found that a Government official’s misstatement to an applicant for federal insurance benefits, conceded to be less than affirmative misconduct, did not justify allowing the applicant to collect retroactive benefits from the public treasury. See 450 U. S., at 788-789. Although Hansen involved estoppel in the context of a claim against the public treasury, we observed that “[i]n two cases involving denial of citizenship, the Court has declined to decide whether even ‘affirmative misconduct’ would estop the Government from denying citizenship, for in neither case was ‘affirmative misconduct’ involved.” Id., at 788.

The Court of Appeals thus correctly considered whether, as an initial matter, there ^was a showing of affirmative misconduct. See INS v. Hibi, 414 U. S. 5, 8-9 (1973) (per curiam); Montana v. Kennedy, 366 U. S. 308, 314-315 (1961). Hibi and Montana indicate, however, that the Court of Appeals erred in determining that the evidence in this case established affirmative misconduct. In Montana, a Government official had incorrectly informed the petitioner’s mother that she was unable to return to the United States because she was pregnant. The Court found that the official’s misstatement “falls far short of misconduct such as might prevent the United States from relying on petitioner’s foreign birth” as a basis for denying him citizenship. 366 U. S., at 314-315. In Hibi, Congress had exempted aliens serving in the United States Armed Forces from certain requirements normally imposed on persons seeking naturalization. We found that neither the Government’s failure to publicize fully the rights accorded by Congress nor its failure to make an authorized naturalization representative available to aliens serving outside of the United States estopped the Government from rejecting respondent’s untimely application for naturalization. See 414 U. S., at 8-9.

Unlike Montana and Hibi, where the Government’s error was clear, the evidence that the Government failed to fulfill its duty in this case is at best questionable. The only indication of negligence is the length of time that the INS took to process respondent’s application. Although the time was indeed long, we cannot say in the absence of evidence to the contrary that the delay was unwarranted. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415 (1971) (presumption of regularity supports official act of public officer); United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926) (same). Both the number of the applications received by the INS and the need to investigate their validity may make it difficult for the agency to process an application as promptly as may be desirable. Even if the INS arguably was negligent in not acting more expeditiously, its conduct was not significantly different from that in Montana and Hibi. Nor is the harm to respondent different. Montana and Hibi make clear that neither the Government’s conduct nor the harm to the respondent is sufficient to estop the Government from enforcing the conditions imposed by Congress for residency in this country.

The final distinction drawn by the Court of Appeals between this case and Hansen is unpersuasive. It is true that Hansen relied on a line of cases involving claims against the public treasury. But there was no indication that the Government would be estopped in the absence of the potential burden on the fisc. An increasingly important interest, implicating matters of broad public concern, is involved in cases of this kind. Enforcing the immigration laws, and the conditions for residency in this country, is becoming more difficult. See n. 4, swpra. Moreover, the INS is the agency primarily charged by Congress to implement the public policy underlying these laws. See, e. g., INS v. Jong Ha Wang, 450 U. S. 139, 144-145 (1981) (per curiam); Hibi, supra, at 8. Appropriate deference must be accorded its decisions.

This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws. Proof only that the Government failed to process promptly an application falls far short of establishing such conduct. Accordingly, we grant the petition for certio-rari and reverse the judgment of the Court of Appeals.

It is so ordered.

Justice Marshall,

dissenting.

I dissent from the Court’s summary reversal of the Court of Appeals. The Court concedes that the INS’s 18-month delay in processing respondent’s application “was indeed long,” but concludes that it “cannot say in the absence of evidence to the contrary that the delay was unwarranted.” Ante, at 18. The Court relies on a presumption of regularity which it says attends the official acts of public officers. Ibid. In view of the unusual delay in the processing of respondent’s application, I do not agree that this case should be summarily disposed of on the basis of this convenient presumption. If the Court believes, as I do not, that this case raises an issue of sufficient importance to justify the exercise of our certio-rari jurisdiction, and if the Court also believes that oral argument should be dispensed with, I would at least notify the parties that the Court is considering a summary disposition, so that they may have an opportunity to submit briefs on the merits.

       Section 201(b) of the Immigration and Nationality Act of 1952 provides for the admission of immigrants who are immediate relatives of United States citizens. 66 Stat. 175, as amended, 8 U. S. C. § 1151(b).

       Section 245(a) provides that the status of an alien who was admitted into the United States “may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” 66 Stat. 217, as amended, 8 U. S. C. § 1255(a).

       The INS has maintained consistently that the 18-month delay was reasonable because of the need to investigate the validity of respondent’s marriage. Because the issue of estoppel was raised initially on appeal, the parties were unable to develop any factual record on the issue.

       In 1976, the year in which Milligan filed her petition on behalf of respondent, some 206,319 immediate-relative petitions were filed. See INS Ann. Rep. 11 (1976). The Service has noted: “In dealing with these petitions, an inordinate amount of fraud, particularly in relation to claimed marriages, has been uncovered. . . . For a fee, partners are provided and marriages contracted to establish eligibility under the statutes for visa issuance benefits.” Ibid. We cannot discount the need for careful investigation by the INS that these petitions demand.


author: Justice O’Connor Justice Marshall,

text:
    LANDON, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE v. PLASENCIA
    No. 81-129.
    Argued October 5, 1982
    Decided November 15, 1982

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 37.

      Elliott Schulder argued the cause for petitioner. With him on the briefs were Solicitor General Lee and Deputy Solicitor General Getter.

      Gary H. Manulkin argued the cause and filed a brief for respondent.
   Justice O’Connor

delivered the opinion of the Court.

Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent’s subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to “enter” the United States could be litigated only in a deportation hearing and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing.

I

Respondent Maria Antonieta Plasencia, a citizen of El Salvador, entered the United States as a permanent resident alien in March 1970. She established a home in Los Angeles with her husband, a United States citizen, and their minor children. On June 27, 1975, she and her husband traveled to Tijuana, Mexico. During their brief stay in Mexico, they met with several Mexican and Salvadoran nationals and made arrangements to assist their illegal entry into the United States. She agreed to transport the aliens to Los Angeles and furnished some of the aliens with alien registration receipt cards that belonged to her children. When she and her husband attempted to cross the international border at 9:27 on the evening of June 29, 1975, an INS officer at the port of entry found six nonresident aliens in the Plasencias’ car. The INS detained the respondent for further inquiry pursuant to § 235(b) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U. S. C. §1101 et seq. In a notice dated June 30, 1975, the INS charged her under §212(a)(31) of the Act, 8 U. S. C. § 1182(a)(31), which provides for the exclusion of any alien seeking admission “who at any time shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law,” and gave notice that it would hold an exclusion hearing at 11 a. m. on June 30, 1975.

An Immigration Law Judge conducted the scheduled exclusion hearing. After hearing testimony from the respondent, her husband, and three of the aliens found in the Plasencias’ car, the judge found “clear, convincing and unequivocal” evidence that the respondent did “knowingly and for gain encourage, induce, assist, abet, or aid nonresident aliens” to enter or try to enter the United States in violation of law. He also found that the respondent’s trip to Mexico was a “meaningful departure” from the United States and that her return to this country was therefore an “entry” within the meaning of § 101(a)(13), 8 U. S. C. § 1101(a)(13). On the basis of these findings, he ordered her “excluded and deported.”

After the Board of Immigration Appeals (BIA) dismissed her administrative appeal and denied her motion to reopen the proceeding, the respondent filed a petition for a writ of habeas corpus in the United States District Court, seeking release from the exclusion and deportation order. The Magistrate initially proposed a finding that, on the basis of evidence adduced at the exclusion hearing, “a meaningful departure did not occur . . . and that therefore [the respondent] is entitled to a deportation hearing.” After considering the Government’s objections, the Magistrate declared that the Government could relitigate the question of “entry” at the deportation hearing. The District Court adopted the Magistrate’s final report and recommendation and vacated the decision of the BIA, instructing the INS to proceed against respondent, if at all, only in deportation proceedings.

The Court of Appeals for the Ninth Circuit affirmed. Plasencia v. Sureck, 637 F. 2d 1286 (1980).

► — I

The immigration laws create two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings. See generally Leng May Ma v. Barber, 357 U. S. 185, 187 (1958). The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admission. The two types of proceedings differ in a number of ways. See generally Maldonado-Sandoval v. INS, 518 F. 2d 278, 280, n. 3 (CA9 1975). An exclusion proceeding is usually held at the port of entry, while a deportation hearing is usually held near the residence of the alien within the United States, see 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.6c (rev. ed. 1981). The regulations of the Attorney General, issued under the authority of § 242(b), 8 U. S. C. § 1252(b), require in most deportation proceedings that the alien be given seven days’ notice of the charges against him, 8 CFR §242.1(b) (1982), while there is no requirement of advance notice of the charges for an alien subject to exclusion proceedings. Indeed, the BIA has held that, “as long as the applicant is informed of the issues confronting him at some point in the hearing, and he is given a reasonable opportunity to meet them,” no further notice is necessary. In re Salazar, 17 I. & N. Dec. 167, 169 (1979). Also, if the INS prevails in a deportation proceeding, the alien may appeal directly to the court of appeals, § 106(a), 75 Stat. 651, as amended, 8 U. S. C. §1105a(a) (1976 ed. and Supp. V), while the alien can challenge an exclusion order only by a petition for a writ of habeas corpus, § 106(b), 75 Stat. 653, 8 U. S. C. § 1105a(b). Finally, the alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding: he can, within certain limits, designate the country of deportation, § 243(a), 8 U. S. C. § 1253(a) (1976 ed. and Supp. V); he may be able to depart voluntarily, § 244(e), 8 U. S. C. § 1254(e) (1976 ed., Supp. V), avoiding both the stigma of deportation, § 242(b), 8 U. S. C. § 1252(b) (1976 ed. and Supp. V), and the limitations on his selection of destination, § 243(a), 8 U. S. C. § 1253(a) (1976 ed. and Supp. V); or he can seek suspension of deportation, § 242(e), 8 U. S. C. § 1252(e) (1976 ed., Supp. V).

The respondent contends that she was entitled to have the question of her admissibility litigated in a deportation hearing, where she would be the beneficiary of the procedural protections and the substantive rights outlined above. Our analysis of whether she is entitled to a deportation rather than an exclusion hearing begins with the language of the Act. Section 285(a) of the Act, 8 U. S. C. § 1225(a), permits the INS to examine “[ajll aliens” who seek “admission or readmission to” the United States and empowers immigration officers to take evidence concerning the privilege of any person suspected of being an alien “to enter, reenter, pass through, or reside” in the United States. (Emphasis added.) Moreover, “every alien” who does not appear “to be clearly and beyond a doubt entitled to land shall be detained” for further inquiry. § 285(b). If an alien is so detained, the Act directs the special inquiry officer to determine whether the arriving alien “shall be allowed to enter or shall be excluded and deported.” § 236(a), 8 U. S. C. § 1226(a). The proceeding before that officer, the exclusion hearing, is by statute “the sole and exclusive procedure for determining admissibility of a person to the United States . . . .” Ibid.

The Act’s legislative history also emphasizes the singular role of exclusion hearings in determining whether an alien should be admitted. The Reports of both the House and Senate state:

“The special inquiry officer is empowered to determine whether an alien detained for further inquiry shall be excluded and deported or shall be allowed to enter after he has given the alien a hearing. The procedure established in the bill is made the sole and exclusive procedure for determining the admissibility of a person to the United States.” S. Rep. No. 1137, 82d Cong., 2d Sess., 29 (1952); H. R. Rep. No. 1365, 82d Cong., 2d Sess., 56 (1952).

The language and history of the Act thus clearly reflect a congressional intent that, whether or not the alien is a permanent resident, admissibility shall be determined in an exclusion hearing. Nothing in the statutory language or the legislative history suggests that the respondent’s status as a permanent resident entitles her to a suspension of the exclusion hearing or requires the INS to proceed only through a deportation hearing. Under the terms of the Act, the INS properly proceeded in an exclusion hearing to determine whether respondent was attempting to “enter” the United States and whether she was excludable.

HH HH

To avoid the impact of the statute, the respondent contends, and the Court of Appeals agreed, that unless she was “entering,” she was not subject to exclusion proceedings, and that prior decisions of this Court indicate that she is entitled to have the question of “entry” decided in deportation proceedings.

The parties agree that only “entering” aliens are subject to exclusion. See Brief for Petitioner 19. That view accords with the language of the statute, which describes the exclusion hearing as one to determine whether the applicant “shall be allowed to enter or shall be excluded and deported.” § 236(a), 8 U. S. C. § 1226(a) (emphasis added). But the respondent’s contention that the question of entry can be determined only in deportation proceedings reflects a misconception of our decisions.

In Rosenberg v. Fleuti, 374 U. S. 449 (1963), we faced the question whether a resident alien’s return from an afternoon trip across the border was an “entry” for immigration law purposes. The definition of that term was the same then as it is now: it means “any coming of an alien into the United States . . . except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him . . . § 101(a)(13), 8 U. S. C. § 1101(a)(13). We held in Fleuti that the “intent exception” refers to an intent to depart in a “manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S, at 462. Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country’s borders would not subject him to the consequences of an “entry” on his return. Ibid. If, however, “the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Ibid. That distinction both protects resident aliens from “unsuspected risks and unintended consequences of. . . a wholly innocent action,” ibid., and gives effect to the language of § 101(a)(13).

The Government has argued in this case that Plasencia violated the immigration laws by attempting to smuggle aliens for gain. Therefore, her departure was “meaningfully interruptive” of her residence, she was attempting an “entry,” and she was subject to exclusion proceedings. And, the Government urges, under §212(a)(31), 8 U. S. C. § 1182(a)(31), she was excludable because she had attempted to smuggle aliens for gain. Plasencia, on the other hand, argues that it would “violat[e] both the scope and spirit,” Brief for Respondent 15, of Fleuti to permit the INS to litigate questions of “entry” in exclusion proceedings.

The Court of Appeals viewed Fleuti as a deportation case rather than an exclusion case, 637 F. 2d, at 1288, and therefore not relevant in deciding whether the question of “entry” could be determined in exclusion proceedings. For guidance on that decision, the Court of Appeals turned to Kwong Hai Chew v. Colding, 344 U. S. 590 (1953), which it read to hold that a resident alien returning from a brief trip “could not be excluded without the procedural due process to which he would have been entitled had he never left the country”— i. e., in this case, a deportation proceeding. 637 F. 2d, at 1288. The court concluded that Plasencia was entitled to litigate her admissibility in deportation proceedings. It would be “circular” and “unfair,” thought the court, to allow the INS to litigate the question of “entry” in exclusion proceedings when that question also went to the merits of the respondent’s admissibility. Id., at 1288-1289.

We disagree. The reasoning of Chew was only that a resident alien returning from a brief trip has a right to due process just as would a continuously present resident alien. It does not create a right to identical treatment for these two differently situated groups of aliens. As the Ninth Circuit seemed to recognize, if the respondent here was making an “entry,” she would be subject to exclusion proceedings. It is no more “circular” to allow the immigration judge in the exclusion proceeding to determine whether the alien is making an entry than it is for any court to decide that it has jurisdiction when the facts relevant to the determination of jurisdiction are also relevant to the merits. Thus, in United States v. Sing Tuck, 194 U. S. 161 (1904), this Court held that an immigration inspector could make a determination whether an applicant for admission was an alien or a citizen, although only aliens were subject to exclusion. Cf. Land v. Dollar, 330 U. S. 731, 739 (1947) (district court has jurisdiction to determine its jurisdiction by proceeding to a decision on the merits). Nor is it in any way “unfair” to decide the question of entry in exclusion proceedings as long as those proceedings themselves are fair. Finally, the use of exclusion proceedings violates neither the “scope” nor the “spirit” of Fleuti. As the Court of Appeals held, that case only defined “entry” and did not designate the forum for deciding questions of entry. The statutory scheme is clear: Congress intended that the determinations of both “entry” and the existence of grounds for exclusion could be made at an exclusion hearing.

> HH

Our determination that the respondent is not entitled to a deportation proceeding does not, however, resolve this case. In challenging her exclusion in the District Court, Plasencia argued not only that she was entitled to a deportation proceeding but also that she was denied due process in her exclusion hearing. See App. 5, ¶ 9; Record 19, 20, 23. We agree with Plasencia that under the circumstances of this case, she can invoke the Due Process Clause on returning to this country, although we do not decide the contours of the process that is due or whether the process accorded Plasencia was insufficient.

This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. See, e. g., United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950); Nishimura Ekiu v. United States, 142 U. S. 651, 659-660 (1892). Our recent decisions confirm that view. See, e. g., Fiallo v. Bell, 430 U. S. 787, 792 (1977); Kleindienst v. Mandel, 408 U. S. 753 (1972). As we explained in Johnson v. Eisentrager, 339 U. S. 763, 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, see, e. g., United States ex rel. Tisi v. Tod, 264 U. S. 131, 133, 134 (1924); Low Wah Suey v. Backus, 225 U. S. 460, 468 (1912) (hearing may be conclusive “when fairly conducted”); see also Kwong Hai Chew, 344 U. S., at 598, n. 8, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation. See, e. g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927); The Japanese Immigrant Case, 189 U. S. 86,100-101 (1903); see also Wong Yang Sung v. McGrath, 339 U. S. 33, 49-50 (1950); Bridges v. Wixon, 326 U. S. 135, 153-154 (1945).

The question of the procedures due a returning resident alien arose in Kwong Hai Chew v. Colding, supra. There, the regulations permitted the exclusion of an arriving alien without a hearing. We interpreted those regulations not to apply to Chew, a permanent resident alien who was returning from a 5-month voyage abroad as a crewman on an American merchant ship. We reasoned that, “[f ]or purposes of his constitutional right to due process, we assimilate petitioner’s status to that of an alien continuously residing and physically present in the United States.” 344 U. S., at 596. Then, to avoid constitutional problems, we construed the regulation as inapplicable. Although the holding was one of regulatory interpretation, the rationale was one of constitutional law. Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as holding “that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” 374 U. S., at 460.

If the permanent resident alien’s absence is extended, of course, he may lose his entitlement to “assimilation of his] status,” Kwong Hai Chew v. Colding, supra, at 596, to that of an alien continuously residing and physically present in the United States. In Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), this Court rejected the argument of an alien who had left the country for some 20 months that he was entitled to due process in assessing his right to admission on his return. We did not suggest that no returning resident alien has a right to due process, for we explicitly reaffirmed Chew. We need not now decide the scope of Mezei; it does not govern this case, for Plasencia was absent from the country only a few days, and the United States has conceded that she has a right to due process, see Tr. of Oral Arg. 6, 9, 14; Brief for Petitioner 9-10, 20-21.

The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. See, e. g., Lassiter v. Department of Social Services, 452 U. S. 18, 24-25 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 12 (1979); Morrissey v. Brewer, 408 U. S. 471, 481 (1972). In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures. Mathews v. Eldridge, 424 U. S. 319, 334-335 (1976). Plasencia’s interest here is, without question, a weighty one. She stands to lose the right “to stay and live and work in this land of freedom,” Bridges v. Wixon, supra, at 154. Further, she may lose the right, to rejoin her immediate family, a right that ranks high among the interests of the individual. See, e. g., Moore v. City of East Cleveland, 431 U. S. 494, 499, 503-504 (1977) (plurality opinion); Stanley v. Illinois, 405 U. S. 645, 651 (1972). The Government’s interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the Executive and the Legislature. See, e. g., Fiallo, supra, at 792-793; Knauff, supra, at 542-543; The Japanese Immigrant Case, supra, at 97. The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy. Our previous discussion has shown that Congress did not intend to require the use of deportation procedures in cases such as this one. Thus, it would be improper simply to impose deportation procedures here because the reviewing court may find them preferable. Instead, the courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the reentry of a permanent resident alien.

Plasencia questions three aspects of the procedures that the Government employed in depriving her of these interests. First, she contends that the Immigration Law Judge placed the burden of proof upon her. In a later proceeding in Chew, the Court of Appeals for the District of Columbia Circuit held, without mention of the Due Process Clause, that, under the law of the case, Chew was entitled to a hearing at which the INS was the moving party and bore the burden of proof. Kwong Hai Chew v. Rogers, 103 U. S. App. D. C. 228, 257 F. 2d 606 (1958). The BIA has accepted that decision, and although the Act provides that the burden of proof is on the alien in an exclusion proceeding, § 291, 8 U. S. C. § 1361 (1976 ed., Supp. Y), the BIA has followed the practice of placing the burden on the Government when the alien is a permanent resident alien. See, e. g., In re Salazar, 17 I. & N. Dec., at 169; In re Kane, 15 I. & N. Dec. 258, 264 (BIA 1975); In re Becerra-Miranda, 12 I. & N. Dec. 358, 363-364, 366 (BIA 1967). There is no explicit statement of the placement of the burden of proof in the Attorney General’s regulations or in the Immigration Law Judge’s opinion in this case and no finding on the issue below.

Second, Plasencia. contends that the notice provided her was inadequate. She apparently had less than 11 hours’ notice of the charges and the hearing. The regulations do not require any advance notice of the charges against the alien in an exclusion hearing, and the BIA has held that it is sufficient that the alien have notice of the charges at the hearing, In re Salazar, supra, at 169. The United States has argued to us that Plasencia could have sought a continuance. It concedes, however, that there is no explicit statutory or regulatory authorization for a continuance.

Finally, Plasencia contends that she was allowed to waive her right to representation, § 292, 8 U. S. C. § 1362, without a full understanding of the right or of the consequences of waiving it. Through an interpreter, the Immigration Law Judge informed her at the outset of the hearing, as required by the regulations, of her right to be represented. He did not tell her of the availability of free legal counsel, but at the time of the hearing, there was no administrative requirement that he do so. 8 CFR § 236.2(a) (1975). The Attorney General has since revised the regulations to require that, when qualified free legal services are available, the immigration law judge must inform the alien of their existence and ask whether representation is desired. 44 Fed. Reg. 4654 (1979) (codified at 8 CFR § 236.2(a) (1982)). As the United States concedes, the hearing would not comply with the current regulations. See Tr. of Oral Arg. 11.

If the exclusion hearing is to ensure fairness, it must provide Plasencia an opportunity to present her case effectively, though at the same time it cannot impose an undue burden on the Government. It would not, however, be appropriate for us to decide now whether the new regulation on the right to notice of free legal services is of constitutional magnitude or whether the remaining procedures provided comport with the Due Process Clause. Before this Court, the parties have devoted their attention to the entitlement to a deportation hearing rather than to the sufficiency of the procedures in the exclusion hearing. Whether the several hours’ notice gave Plasencia a realistic opportunity to prepare her case for effective presentation in the circumstances of an exclusion hearing without counsel is a question we are not now in a position to answer. Nor has the Government explained the burdens that it might face in providing more elaborate procedures. Thus, although we recognize the gravity of Plasencia’s interest, the other factors relevant to due process analysis — the risk of erroneous deprivation, the efficacy of additional procedural safeguards, and the Government’s interest in providing no further procedures — have not been adequately presented to permit us to assess the sufficiency of the hearing. We remand to the Court of Appeals to allow the parties to explore whether Plasencia was accorded due process under all of the circumstances.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Marshall,

concurring in part and dissenting in part.

I agree that the Immigration and Nationality Act permitted the INS to proceed against respondent in an exclusion proceeding. The question then remains whether the exclusion proceeding held in this case satisfied the minimum requirements of the Due Process Clause. While I agree that the Court need not decide the precise contours of the process that would be constitutionally sufficient, I would not hesitate to decide that the process accorded Plasencia was insufficient.

The Court has already set out the standards to be applied in resolving the question. Therefore, rather than just remand, I would first hold that respondent was denied due process because she was not given adequate and timely notice of the charges against her and of her right to retain counsel and to present a defense.

While the type of hearing required by due process depends upon a balancing of the competing interests at stake, due process requires “at a minimum . . . that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). See, e. g., Bell v. Burson, 402 U. S. 535, 542 (1971). Permanent resident aliens who are detained upon reentry into this country clearly are entitled to adequate notice in advance of an exclusion proceeding.

To satisfy due process, notice must “clarify what the charges are” in a manner adequate to apprise the individual of the basis for the government’s proposed action. Wolff v. McDonnell, 418 U. S. 539, 564 (1974). Notice must be provided sufficiently in advance of the hearing to “give the charged party a chance to marshal the facts in his defense.” Id., at 563, 564 (prisoners charged with disciplinary violations must be given “advance written notice of the claimed violation”). See, e. g., Goldberg v. Kelly, 397 U. S. 254, 267-268 (1970) (welfare recipients must be given “timely and adequate notice detailing the reasons for a proposed termination”); In re Gault, 387 U. S. 1, 33 (1967) (juvenile must be given notice of “the specific charge or factual allegations” to be considered at delinquency hearing “at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation”).

Respondent was not given notice sufficient to afford her a reasonable opportunity to demonstrate that she was not excludable. The Immigration Judge’s decision to exclude respondent was handed down less than 24 hours after she was detained at the border on the night of June 29,1975. By notice in English dated June 30, 1975, she was informed that a hearing would be conducted at 11 o’clock on the morning of that same day, and that the Government would seek to exclude her on the ground that she had “wilfully and knowingly aided and abetted the entry of illegal aliens into the United States in violation of the law and for gain.” It was not until the commencement of the hearing that she was given notice in her native language of the charges against her and of her right to retain counsel and to present evidence.

The charges against Plasencia were also inadequately explained at the hearing itself. The Immigration Judge did not explain to her that she would be entitled to remain in the country if she could demonstrate that she had not agreed to receive compensation from the aliens whom she had driven across the border. Nor did the judge inform respondent that the meaningfulness of her departure was an issue at the hearing.

These procedures deprived Plasencia of a fair opportunity to show that she was not excludable under the standards set forth in the Immigration and Nationality Act. Because Pla-sencia was not given adequate notice of the standards for exclusion or of her right to retain counsel and present a defense, she had neither time nor opportunity to prepare a response to the Government’s case. The procedures employed here virtually assured that the Government attorney would present his case without factual or legal opposition.

When a permanent resident alien’s substantial interest in remaining in this country is at stake, the Due Process Clause forbids the Government to stack the deck in this fashion. Only a compelling need for truly summary action could justify this one-sided proceeding. In fact, the Government’s haste in proceeding against Plasencia could be explained only by its desire to avoid the minimal administrative and financial burden of providing her adequate notice and an opportunity to prepare for the hearing. Although the various other Government interests identified by the Court may be served by the exclusion of those who fail to meet the eligibility requirements set out in the Immigration and Nationality Act, they are not served by procedures that deny a permanent resident alien a fair opportunity to demonstrate that she meets those eligibility requirements.

I would therefore hold that respondent was denied due process.

       Section 235, as set forth in 8 U. S. C. § 1225, provides in part:
      (a) “The inspection ... of aliens (including alien crewmen) seeking admission or readmission to . . . the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. ...”
      (b) “Every alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.”

       The hearing was authorized by § 236(a), which, as set forth in 8 U. S. C. § 1226(a), provides:
      “A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses. He shall have authority in any case to determine whether an arriving alien who has been detained for further inquiry under section 1225 of this title shall be allowed to enter or shall be excluded and deported. The determination of such special inquiry officer shall be based only on the evidence produced at the inquiry. . . . Proceedings before a special inquiry officer under this section shall be conducted in accordance with this section, the applicable provisions of sections 1225 and 1375(b) of this title, and such regulations as the Attorney General shall prescribe, and shall be the sole and exclusive procedure for determining admissibility of a person to the United States under the provisions of this section. ... A complete record of the proceedings and of all testimony and evidence produced at such inquiry, shall be kept.”

       Section 101(a)(13), 8 U. S. C. § 1101(a)(13), defines “entry” as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.”

       Voluntary departure for an alien who would otherwise be deported also means that he will not be subject to §212(a)(17), 8 U. S. C. § 1182(a)(17), which, at the time of Plasencia’s hearing, required aliens who had once been deported to seek prior approval of the Attorney General before reentering. There was no comparable requirement of prior approval for aliens who had been excluded and sought again to enter more than one year later. § 212(a)(16), 8 U. S. C. § 1182(a)(16). The requirement of prior approval for deported aliens now applies only within five years of deportation. 95 Stat. 1612, §212(a)(17), 8 U. S. C. § 1182(a)(17) (1976 ed., Supp. V).

       Apparently the practice of the INS is to determine this question in exclusion proceedings. See In re Leal, 15 I. & N. Dec. 477, 478-479 (BIA 1975); In re Becerra-Miranda, 12 I. & N. Dec. 358, 362-363 (BIA 1967).

       Section 101(a)(13), 8 U. S. C. § 1101(a)(13), which defines “entry,” was enacted in 1952 in response to the harsh results visited upon resident aliens by earlier restrictive interpretations of the term. Both the House and Senate Reports contained identical explanatory language:
      “Normally an entry occurs when the alien crosses the borders of the United States and makes a physical entry, and the question of whether an entry has been made is susceptible of a precise determination. However, for the purposes of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term ‘entry’ has not been found to be as apparent. Earlier judicial constructions of the term in the immigration laws, as set forth in Volpe v. Smith (289 U. S. 422 (1933)), generally held that the term ‘entry’ included any coming of an alien from a foreign country to the United States whether such coming be the first or a subsequent one. More recently, the courts have departed from the rigidity of that rule and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States (Di Pasquale v. Karnuth, 158 F. 2d 878 (C. C. A. 2d 1947)), or did not leave the country voluntarily (Delgadillo v. Carmichael, 332 U. S. 388 (1947)). The bill defines the term ‘entry’ as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.” S. Rep. No. 1137, 82d Cong., 2d Sess., 4 (1952); H. R. Rep. No. 1365, 82d Cong., 2d Sess., 32 (1952).
      In Di Pasquale, the court refused to allow a deportation that depended upon an “entry” that occurred after an overnight train on which an alien was a passenger passed through Canada on its way from Buffalo to Detroit. In Delgadillo, the Court refused to define as an “entry” the return of an alien taken to Cuba to recuperate after the merchant ship on which he sailed was torpedoed in the Caribbean diming World War II.

       Indeed, we expressly declined to reach the question whether Chew himself was entitled to a deportation proceeding. We stated: “From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien, and we do not now reach the question whether he is to be so treated.” 344 U. S., at 600.

       The statute provides a right to representation without expense to the Government. § 292, 8 U. S. C. § 1362. Plasencia has not suggested that she is entitled to free counsel.

       Thus, the question of Plasencia’s entitlement to due process has been briefed and argued, is properly before us, and is sufficiently developed that we are prepared to decide it. Precisely what procedures are due, on the other hand, has not been adequately developed by the briefs or argument. The dissent undertakes to decide these questions, but, to do so, must rely heavily on an argument not raised by Plasencia: to wit, that she was not informed at the hearing that the alleged agreement to receive compensation and the meaningfulness of her departure were critical issues. Also, the dissent fails to discuss the interests that the Government may have in employing the procedures that it did. The omission of arguments raised by the parties is quite understandable, for neither Plasencia nor the Government has yet discussed what procedures are due. Unlike the dissent, we would allow the parties to explore their respective interests and arguments in the Court of Appeals.

       Because the due process question was squarely addressed in the briefs and at oral argument, there is no doubt that the Court may now decide the issue. See Vance v. Terrazas, 444 U. S. 252, 258-259, n. 5 (1980), and cases cited therein. In fact, the Court has reached the threshold of deciding the constitutional question. It has identified the deficiencies in the exclusion hearing afforded Plasencia, and it has set forth the standards that it would apply to determine whether the procedures, as described, denied Plasencia due process. I do not see any interest to be served in declining to take the final step of applying these due process standards to the record before us, as the Court of Appeals would otherwise be required to do on remand.

       Because Plasencia did not receive constitutionally sufficient notice, I find it unnecessary to address the other constitutional deficiencies she asserts.

       It is unclear from the record whether respondent received the notice prior to the commencement of the hearing.

       The exclusion hearing was conducted with the aid of an interpreter.

       The principal issue of fact at the hearing was whether Plasencia had transported the six aliens “for gain.” Plasencia, who was called as the Government’s first witness, denied repeatedly that any of the aliens had agreed to pay her for driving them into this country. The Government’s trial attorney then called three of the six aliens as witnesses. One witness, Jose Alfredo Santillana, stated unequivocally that he was picked up by the Plasencias while hitchhiking and that, without making any mention of money, they agreed to drive him to Los Angeles. A second witness, Luis Polio-Medina, testified that there had not been any talk with Plasen-cia at any time about payment for transportation to Los Angeles, though there “was kind of an understanding” that “some people in Los Angeles” whom he “was going to look for” would pay her a “normal amount” on his behalf. Only the third witness, Eugenia Linares-Moreno, testified that she had an agreement to pay Plasencia for transportation into the country.
      Given the weakness of the Government’s evidence, Plasencia may well have been prejudiced by her inability to prepare for the hearing and to obtain counsel. The three aliens who did not testify at the hearing might have supported Plasencia’s claim that she did not expect to receive financial compensation. The Immigration Judge’s finding that Plasencia transported the aliens for gain must have depended on his acceptance of the testimony given by Linares-Moreno and Polio-Medina. The motives of these Government witnesses in testifying against Plasencia were open to question, since they were subject to criminal prosecution in this country. The credibility of Linares-Moreno, the Government’s key witness, might also have been challenged on the grounds that she had contradicted herself on at least one key question during the course of her examination and that she had concededly lied to an INS officer by giving a false name. Vigorous cross-examination by a competent attorney might well have led the Immigration Judge to resolve the disputed issue of fact in Plasencia’s favor.