1. Under 8 CFR § 175.57(b), a regulation pertaining to the entry
of aliens into the United States, the Attorney General has no
authority to deny to an alien who is a lawful permanent resident of
the United States, and who is continuously residing and physically
present therein, an opportunity to be heard in opposition to an
order for his "permanent exclusion" and consequent deportation,
even when the Attorney General determines that the order is based
on information of a confidential nature the disclosure of which
would be prejudicial to the public interest. Pp.
344 U. S.
591-600.
(a)
Knauff v. Shaughnessy, 338 U.
S. 537, distinguished. Page
344 U. S.
596.
(b) The term "excludable," in § 175.57(b), is inapplicable to
aliens who are lawful permanent residents physically present within
the United States. P.
344 U. S.
599.
(c) Nothing in the statute or the Presidential Proclamations
under which this regulation was issued requires or permits a
broader interpretation of this section. Pp.
344 U. S.
599-600.
2. Petitioner is an alien and a lawful permanent resident of the
United States, who currently maintains his residence in the United
States and usually is physically present there. While returning
from a voyage to foreign ports as a seaman on a vessel of American
registry with its home port in the United States, he was detained
on board by an order of the Attorney General and ordered
"temporarily excluded" from the United States under 8 CFR § 175.57,
as an alien whose entry was deemed prejudicial to the public
interest. He was denied a hearing by the Attorney General on the
ground that the order was based on information of a confidential
nature, the disclosure of which would be prejudicial to the public
interest, and he was ordered to be permanently excluded from the
United States.
Held: petitioner's detention, without notice of any
charges against him and without opportunity to be heard in
opposition to them, was not authorized by 8 CFR § 175.57(b). Pp.
344 U. S.
600-603.
192 F.2d 1009, reversed.
Page 344 U. S. 591
Petitioner's application for a writ of habeas corpus was
dismissed by the District Court.
97 F. Supp.
592. The Court of Appeals affirmed. 192 F.2d 1009. This Court
granted certiorari. 343 U.S. 933.
Reversed and remanded,
p.
344 U. S.
603.
MR. JUSTICE BURTON delivered the opinion of the Court.
A preliminary consideration that is helpful to the solution of
this litigation is whether, under 8 CFR § 175.57(b), [
Footnote 1] the Attorney General has
authority to deny to a lawful permanent resident of the United
States,
Page 344 U. S. 592
who is an alien continuously residing and physically present
therein, the opportunity to be heard in opposition to an order for
his "permanent exclusion" and consequent deportation, provided the
Attorney General determines that the order is based on information
of a confidential nature, the disclosure of which would be
prejudicial to the public interest. Assuming, as seems to be clear,
that the Attorney General does not have such authority, the
critical issue then presented is whether he has that authority
under the following additional circumstances: the resident alien is
a seaman, he currently maintains his residence in the United States
and usually is physically present there; however, he is returning
from a voyage as a seaman on a vessel of American registry with its
home port in the United States, that voyage has included scheduled
calls at foreign ports in the Far East, and he is detained on board
by order of the Attorney General. For the reasons hereafter stated,
we hold that these additional circumstances do not change the
result, and that the Attorney General does not have the authority
suggested.
Petitioner, Kwong Hai Chew, is a Chinese seaman last admitted to
the United States in 1945. Thereafter, he married a native American
and bought the home in which they reside in New York. Having proved
his good moral character for the preceding five years, petitioner
secured suspension of his deportation. In 1949, he was admitted to
permanent residence in the United
Page 344 U. S. 593
States as of January 10, 1945. [
Footnote 2] In World War II, he served with credit in the
United States Merchant Marine. He never has had any difficulty with
governmental authorities. In April, 1950, he filed a petition for
naturalization
Page 344 U. S. 594
which is still pending. In November, 1950, he was screened and
passed by the Coast Guard for employment as a seaman on a merchant
vessel. [
Footnote 3] In the
same month, he signed articles of employment as chief steward on
the S.S.
Sir John Franklin, a vessel of American registry
with its home port in New York City. The voyage was to include
calls at several foreign ports in the Far East. He remained aboard
the vessel on this voyage, but at San Francisco, in March, 1951,
the immigration
Page 344 U. S. 595
inspector ordered him "temporarily excluded," under 8 CFR §
175.57, as an alien whose entry was deemed prejudicial to the
public interest.
On the vessel's arrival in New York, March 29, petitioner's
"temporary exclusion" was continued, and he was not permitted to
land. March 30, he sought a writ of habeas corpus from the United
States District Court for the Eastern District of New York,
charging that his detention was arbitrary and capricious and a
denial of due process of law in violation of the Fifth Amendment to
the Constitution of the United States. Purporting to act under 8
CFR § 175.57(b), the Attorney General directed that petitioner be
denied a hearing before a Board of Special Inquiry and that his
"temporary exclusion be made permanent." The Attorney General
continues to deny petitioner all information as to the nature and
cause of any accusations against him and all opportunity to be
heard in opposition to the order for his "exclusion." He is
detained at Ellis Island "for safekeeping on behalf of the master
of the S.S.
Sir John Franklin."
The writ was issued, but, after a hearing, it was dismissed by
the District Court.
97 F. Supp.
592. The Court of Appeals for the Second Circuit affirmed. 192
F.2d 1009. Both courts relied upon
Knauff v. Shaughnessy,
338 U. S. 537. We
granted certiorari because of the doubtful applicability of that
decision and the importance of the issue in the administration of
the Nation's immigration and naturalization program. 343 U.S. 933.
Bail was denied by the District Court. 98 F. Supp. 717. It also was
denied by the Court of Appeals, without prejudice to an application
to this Court. Applications for bail are pending before the
Commissioner of Immigration and Naturalization and this Court.
The issue is petitioner's detention, without notice of any
charge against him and without opportunity to be heard in
opposition thereto. Petitioner contends that
Page 344 U. S. 596
such detention is not authorized by 8 CFR § 175.57(b). He
contends also that, if that regulation does purport to authorize
such detention, the regulation is invalid as an attempt to deprive
him of his liberty without due process of law in violation of the
Fifth Amendment. Agreement with petitioners first contention makes
it unnecessary to reach his second.
The case of
Knauff v. Shaughnessy, supra, relied upon
below, is not in point. It relates to the rights of an alien
entrant, and does not deal with the question of a resident alien's
right to be heard. For 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.
[
Footnote 4] To simplify the
issue, we consider first what would have been his constitutional
right to a hearing had he not undertaken his voyage to foreign
ports, but had remained continuously within the territorial
boundaries of the United States.
1. It is well established that, if an alien is a lawful
permanent resident of the United States and remains physically
present there, he is a person within the protection of the Fifth
Amendment. He may not be deprived of his life, liberty or property
without due process of law. [
Footnote 5]
Page 344 U. S. 597
Although it later may be established, as respondents contend,
that petitioner can be expelled and deported, yet, before his
expulsion, he is entitled to notice of the nature of the charge and
a hearing at least before an executive or administrative tribunal.
[
Footnote 6] Although Congress
may prescribe
Page 344 U. S. 598
conditions for his expulsion and deportation, not even Congress
may expel him without allowing him a fair opportunity to be heard.
[
Footnote 7] For example, he is
entitled to a fair chance to prove mistaken identity. At the
present stage of the instant case, the issue is not one of
exclusion, expulsion, or deportation. It is one of legislative
construction and of procedural due process. [
Footnote 8]
This being recognized, we interpret this regulation as making no
attempt to question a resident alien's constitutional
Page 344 U. S. 599
right to due process. Section 175.57(b) uses the term
"excludable" in designating the aliens to which it applies. That
term relates naturally to entrant aliens and to those assimilated
to their status. The regulation nowhere refers to the expulsion of
aliens, which is the term that would apply naturally to aliens who
are lawful permanent residents physically present within the United
States. Accordingly, we find no language in the regulation that
would have required its application to petitioner had he remained
continuously and physically within the United States. [
Footnote 9] It thus seems clear that
the Attorney General would not have had the authority to deny to
petitioner a hearing in opposition to such an order as was here
made, provided petitioner had remained within the United
States.
The regulation before us was issued by the Secretary of State
and concurred in by the Attorney General, pursuant to Presidential
Proclamations No. 2523, 3 CFR, 1943 Cum.Supp., 270, and No. 2850, 3
CFR, 1949 Supp. 41. The latter proclamation, issued August 17,
1949, also "ratified and confirmed" the regulation. Those
proclamations, in turn, depend upon § 1 of the Act of May 22, 1918,
40 Stat. 559, as amended, June 21, 1941, 55 Stat.
Page 344 U. S. 600
252, 22 U.S.C. § 223. It is not questioned that the regulation,
as above interpreted, comes within these authorizations, or that
such authorizations have been extended to include the dates
material in this case. 66 Stat. 163, 333. We find nothing in the
statute or the proclamations which calls for, permits, or sustains
a broader interpretation of 8 CFR § 175.57(b) than we have given to
it. The wording also now reflects congressional intent, because
substantially the same language was inserted by Congress in the
Subversive Activities Control Act of 1950, 64 Stat. 1008.
See note 1
supra.
2. Petitioner's final contention is that, if an alien is a
lawful permanent resident of the United States and also is a seaman
who has gone outside of the United States on a vessel of American
registry, with its home port in the United States, and, upon
completion of such voyage, has returned on such vessel to the
United States and is still on board, he is still, from a
constitutional point of view, a person entitled to procedural due
process under the Fifth Amendment. We do not regard the
constitutional status which petitioner indisputably enjoyed prior
to his voyage as terminated by that voyage. 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.
Section 175.57(b)'s authorization of the denial of hearings
raises no constitutional conflict if limited to "excludable" aliens
who are not within the protection of the Fifth Amendment. The
assimilation of petitioner, for constitutional purposes, to the
status of a continuous resident physically present in the United
States also accords with the Nation's immigration and
naturalization program. For example, for purposes of
naturalization, such an assimilation was expressly prescribed in
the Nationality Act of 1940:
Page 344 U. S. 601
"SEC. 307. (a) No person . . . shall be naturalized unless such
petitioner, (1) immediately preceding the date of filing petition
for naturalization has resided continuously within the United
States for at least five years. . . ."
"
* * * *"
"(d) The following shall be regarded as residence within the
United States within the meaning of this chapter:"
"
* * * *"
"(2) Continuous service by a seaman on a vessel or vessels whose
home port is in the United States and which are of American
registry or American owned, if rendered subsequent to the
applicant's lawful entry into the United States for permanent
residence and immediately preceding the date of
naturalization."
54 Stat. 1142-1143, 8 U.S.C. § 707.
See also § 325, 54
Stat. 1150, as amended, 64 Stat. 1015, 8 U.S.C. (Supp. V) § 725.
[
Footnote 10]
While it may be that a resident alien's ultimate right to remain
in the United States is subject to alteration by statute or
authorized regulation because of a voyage undertaken by him to
foreign ports, it does not follow that he is thereby deprived of
his constitutional right to procedural due process. His status as a
person within the meaning and protection of the Fifth Amendment
cannot be capriciously taken from him. Where neither Congress, the
President, the Secretary of State, nor the Attorney General has
inescapably said so, we are not
Page 344 U. S. 602
ready to assume that any of them has attempted to deprive such a
person of a fair hearing. [
Footnote 11]
This preservation of petitioner's right to due process does not
leave an unprotected spot in the Nation's armor. Before
petitioner's admission to permanent residence, he was required to
satisfy the Attorney General and Congress of his suitability for
that status. [
Footnote 12]
Before receiving clearance for his foreign cruise, he was screened
and approved by the Coast Guard. [
Footnote 13] Before acceptance of his petition for
naturalization, as well as before final action thereon, assurance
is necessary that he is not a security risk.
See 8 U.S.C.
c. 11, Subchapter III -- Nationality Through Naturalization, §§
701-747, as amended.
We do not reach the issue as to what would be the constitutional
status of 8 CFR § 175.57(b) if it were interpreted as denying to
petitioner all opportunity for a hearing. Also, we do not reach the
issue as to what will be the authority of the Attorney General to
order the deportation of petitioner after giving him reasonable
notice of the charges against him and allowing him a
Page 344 U. S. 603
hearing sufficient to meet the requirements of procedural due
process.
For the reasons stated, we conclude that the detention of
petitioner, without notice of the charges against him and without
opportunity to be heard in opposition to them, is not authorized by
8 CFR § 175.57(b). Accordingly, the judgment of the Court of
Appeals is
Reversed and the cause remanded to the District
Court.
MR. JUSTICE MINTON dissents.
[
Footnote 1]
"§ 175.57
Entry not permitted in special cases. . .
."
"
* * * *"
"(b) In the case of an alien temporarily excluded by an official
of the Department of Justice on the ground that he is, or may be
excludable under one of more of the categories set forth in §
175.53, no hearing by a board of special inquiry shall be held
until after the case is reported to the Attorney General and such a
hearing is directed by the Attorney General or his representative.
In any special case, the alien may be denied a hearing before a
board of special inquiry and an appeal from the decision of that
board if the Attorney General determines that he is excludable
under one of the categories set forth in § 175.53 on the basis of
information of a confidential nature, the disclosure of which would
be prejudicial to the public interest."
The categories set forth in § 175.53 as a basis for exclusion
are those defined "to be prejudicial to the public interest." They
include, for example, membership in
"a political organization associated with or carrying out
policies of any foreign government opposed to the measures adopted
by the Government of the United States in the public interest . .
."
or being "engaged in organizing, teaching, advocating, or
directing any rebellion, insurrection, or violent uprising against
the United States." 8 CFR.
For statutory language similar to that in 8 CFR § 175.57,
see § 5 of the Act of October 16, 1918, as amended by the
Subversive Activities Control Act of 1950, 64 Stat. 1008, 8 U.S.C.
(Supp. V) § 137-4, referring to aliens who are "excludable" under §
137. The Government, in the instant case, relies upon 8 CFR §
175.57, rather than upon 8 U.S.C. (Supp. V) § 137-4.
[
Footnote 2]
"
Resolved by the Senate (the House of Representatives
concurring), That the Congress favors the suspension of
deportation in the case of each alien hereinafter named, in which
case the Attorney General has suspended deportation for more than
six months."
"
* * * *"
"A-6665545, Chew, Kwong Hai, or Harry Kwong (Hai Chew)."
"
* * * *"
"Agreed to July 20, 1949."
63 Stat. 1240, 1242.
For the effect of the above action,
see § 19(c) of the
Immigration Act of February 5, 1917, as amended, 62 Stat. 1206, 8
U.S.C. (Supp. V) § 155(c):
"(c) In the case of any alien . . . who is deportable under any
law of the United States and who has proved good moral character
for the preceding five years, the Attorney General may . . .
suspend deportation of such alien if he is not ineligible for
naturalization or if ineligible, such ineligibility is solely by
reason of his race, if he finds (a) that such deportation would
result in serious economic detriment to a citizen or legally
resident alien who is the spouse, parent, or minor child of such
deportable alien; or (b) that such alien has resided continuously
in the United States for seven years or more and is residing in the
United States upon the effective date of this Act. If the
deportation of any alien is suspended under the provisions of this
subsection for more than six months, a complete and detailed
statement of the facts and pertinent provisions of law in the case
shall be reported to the Congress with the reasons for such
suspension. . . . If, during the session of the Congress at which a
case is reported or prior to the close of the session of the
Congress next following the session at which a case is reported,
the Congress passes a concurrent resolution stating in substance
that it favors the suspension of such deportation, the Attorney
General shall cancel deportation proceedings. . . . Deportation
proceedings shall not be canceled in the case of any alien who was
not legally admitted for permanent residence at the time of his
last entry into the United States, unless such aliens pays . . . a
fee of $18. . . . [In the instant case, this was paid.] Upon the
cancellation of such proceedings in any case in which fee has been
paid, the Commissioner shall record the alien's admission for
permanent residence as of the date of his last entry into the
United States. . . ."
8 CFR § 175.41(q) states that, for the purposes of §§ 175.41 to
175.62,
"The term 'an alien who is a lawful permanent resident of the
United States' means an alien who has been lawfully admitted into
the continental United States, the Virgin Islands, Puerto Rico, or
Hawaii for permanent residence therein, and who has, since such
admission, maintained his domicile in the United States. . . ."
[
Footnote 3]
For the nature and significance of such clearance,
see
Executive Order No. 10173, of October 18, 1950, especially §§
6.10-1 to 6.10-9, now published, as amended, in 33 CFR, 1951
Cum.Pocket Supp. That order was issued pursuant to the Act of June
15, 1917, as amended by the Magnuson Act of August 9, 1950, 64
Stat. 427-428, 50 U.S.C. (Supp. V) § 191. It has now been
implemented by regulations effective December 27, 1950, published,
as amended, in 33 CFR, 1951 Cum. Pocket Supp., §§ 121.01-125.37.
See also Parker v. Lester, 98 F.
Supp. 300, 191 F.2d 1020.
Section 6.10-1, as it existed at the date of petitioner's
clearance, provided:
"
Issuance of documents and employment of persons aboard
vessels. No person shall be issued a document required for
employment on a merchant vessel of the United States, nor shall any
licensed officer or certificated man be employed on a merchant
vessel of the United States if the Commandant is satisfied that the
character and habits of life of such person are such as to
authorize the belief that the presence of the individual on board
would be inimical to the security of the United States. . . ."
15 Fed.Reg. 7007.
Later regulations have published detailed security provisions as
to who may be employed on merchant vessels of the United States of
100 gross tons and upward, whether engaged in foreign or other
trade. 33 CFR, 1951 Cum.Pocket Supp., §§ 121.13-121.16.
[
Footnote 4]
In this opinion, "exclusion" means preventing someone from
entering the United States who is actually outside of the United
States or is treated as being so. "Expulsion" means forcing someone
out of the United States who is actually within the United States
or is treated as being so. "Deportation" means the moving of
someone away from the United States after his exclusion or
expulsion.
[
Footnote 5]
". . . The Bill of Rights is a futile authority for the alien
seeking admission for the first time to these shores. But, once an
alien lawfully enters and resides in this country, he becomes
invested with the rights guaranteed by the Constitution to all
people within our borders. Such rights include those protected by
the First and the Fifth Amendments and by the due process clause of
the Fourteenth Amendment. None of these provisions acknowledges any
distinction between citizens and resident aliens. They extend their
inalienable privileges to all 'persons,' and guard against any
encroachment on those rights by federal or state authority."
Bridges v. Wixon, 326 U. S. 135,
326 U. S. 161
(concurring opinion).
"The alien, to whom the United States has been traditionally
hospitable, has been accorded a generous and ascending scale of
rights as he increases his identity with our society. Mere lawful
presence in the country creates an implied assurance of safe
conduct and gives him certain rights; they become more extensive
and secure when he makes preliminary declaration of intention to
become a citizen, and they expand to those of full citizenship upon
naturalization. During his probationary residence, this Court has
steadily enlarged his right against Executive deportation except
upon full and fair hearing. . . . And, at least since 1886, we have
extended to the person and property of resident aliens important
constitutional guaranties -- such as the due process of law of the
Fourteenth Amendment."
Johnson v. Eisentrager, 339 U.
S. 763,
339 U. S.
770-771.
The latter case also comments that,
"in extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the alien's
presence within its territorial jurisdiction that gave the
Judiciary power to act."
Id. at
339 U. S. 771.
That case related to nonresident enemy aliens who had never been in
the United States, rather than to a lawful permanent resident in
the position of petitioner. There is no lack of physical presence
for jurisdictional purposes in the instant case.
[
Footnote 6]
". . . But this court has never held, nor must we now be
understood as holding, that administrative officers, when executing
the provisions of a statute involving the liberty of persons, may
disregard the fundamental principles that inhere in 'due process of
law' as understood at the time of the adoption of the Constitution.
One of these principles is that no person shall be deprived of his
liberty without opportunity, at some time, to be heard before such
officers in respect of the matters upon which that liberty depends
-- not necessarily an opportunity upon a regular, set occasion, and
according to the forms of judicial procedure, but one that will
secure the prompt, vigorous action contemplated by Congress, and,
at the same time, be appropriate to the nature of the case upon
which such officers are required to act. Therefore, it is not
competent for the Secretary of the Treasury or any executive
officer at any time within the year limited by the statute
arbitrarily to cause an alien who has entered the country, and has
become subject in all respects to its jurisdiction and a part of
its population, although alleged to be illegally here, to be taken
into custody and deported without giving him all opportunity to be
heard upon the questions involving his right to be and remain in
the United States. No such arbitrary power can exist where the
principles involved in due process of law are recognized."
The Japanese Immigrant Case, 189 U. S.
86,
189 U. S.
100-101.
". . . It was under compulsion of the Constitution that this
Court long ago held that an antecedent deportation statute must
provide a hearing at least for aliens who had not entered
clandestinely and who had been here some time even if
illegally."
Wong Yang Sung v. McGrath, 339 U. S.
33,
339 U. S. 49-50.
See also Johnson v. Eisentrager, supra, at
339 U. S.
770-771;
Carlson v. Landon, 342 U.
S. 524,
342 U. S.
538.
[
Footnote 7]
See Fong Yue Ting v. United States, 149 U.
S. 698, recognizing the right to expel and deport
resident aliens.
"When the Constitution requires a hearing, it requires a fair
one, one before a tribunal which meets at least currently
prevailing standards of impartiality."
Wong Yang Sung v. McGrath, supra, at
339 U. S. 50;
Kwock Jan Fat v. White, 253 U. S. 454,
253 U. S.
457-458,
253 U. S.
464.
[
Footnote 8]
It is to be noted that the cases generally cited in this field
in relation to the exclusion, expulsion, or deportability of
resident aliens deal only with that ultimate issue, and not with
the right of the resident alien to a hearing sufficient to satisfy
procedural due process. The reports show that there were hearings
and that, in some cases, the Court considered whether the hearings
had been fair.
E.g., United States ex rel. Volpe v. Smith,
289 U. S. 422,
289 U. S. 424;
United States v. Corsi, 287 U. S. 129,
287 U. S. 131;
United States ex rel. Claussen v. Day, 279 U.
S. 398,
279 U. S. 400;
Quon Quon Poy v. Johnson, 273 U.
S. 352,
273 U. S. 358;
Lewis v. Frick, 233 U. S. 291,
233 U. S. 293;
Lapina v. Williams, 232 U. S. 78,
232 U. S. 83;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S.
729.
[
Footnote 9]
The preceding subsection, 175.57(a), uses the additional word
"deported," but only to supplement "excluded:"
"Any alien so temporarily excluded by an official of the
Department of Justice shall not be admitted, and shall be excluded
and deported unless the Attorney General, after consultation with
the Secretary of State, is satisfied that the admission of the
alien would not be prejudicial to the interests of the United
States."
8 CFR.
[
Footnote 10]
This provision survives in a modified form in § 330 of the
Immigration and Nationality Act of 1952, 66 Stat. 251. Section
330(b) includes a savings clause affecting those who applied for
naturalization before September 23, 1950. Section 405(a) also
contains a general savings clause, 66 Stat. 280.
[
Footnote 11]
Existing statutory and administrative provisions for "Exclusion
Without Hearing" are discussed in the Report of the President's
Commission on Immigration and Naturalization entitled "Whom We
Shall Welcome" dated January 1, 1953 at 228-231. The discussion
treats the provisions as applicable to entrant and reentrant
aliens, but does not even suggest that they are applicable to
aliens lawfully admitted to permanent residence and physically
present within the United States. The report discusses the
harshness of the "reentry doctrine," and recommends its
modification at 199-200. It does not, however, even suggest that
the reentry doctrine attempts to limit the constitutional right to
a hearing which resident aliens, in the status of petitioner, may
have under the Fifth Amendment. The instances of hardship which the
report cites appear to have been disclosed at hearings held on the
issue of the alien's right to reenter.
[
Footnote 12]
See note 2
supra.
[
Footnote 13]
See note 3
supra.