Petitioners, husband and wife, entered the United States in 1951
as alien seamen, and remained unlawfully after expiration of their
limited lawful stay. In November, 1951, a child was born to them --
an American citizen by birth. In January, 1952, petitioners applied
for suspension of deportation under §19(c) of the Immigration Act
of 1917, which conditionally authorizes suspension of a deportation
which "would result in serious economic detriment to a citizen . .
. who is the . . . minor child of such deportable alien." The Board
of Immigration Appeals found that petitioners were eligible for
relief but, as a matter of administrative discretion, denied
suspension of deportation, relying mainly on the fact that
petitioners had established no roots or ties in this country.
there was no error in the decision of the Board.
Pp. 353 U. S.
(a) The Board applied the correct legal standards in deciding
whether petitioners met the statutory prerequisites for suspension
of deportation. P. 353 U. S.
(b) Suspension of deportation under the statute is a matter of
discretion and of administrative grace, not mere eligibility;
discretion must be exercised even though statutory prerequisites
have been met. P. 353 U. S.
(c) It was not an abuse of discretion to withhold relief in this
case, since the reasons relied on by the Hearing Officer and the
Board were neither capricious nor arbitrary. P. 353 U. S.
(d) It was not improper or arbitrary for the Board, in
exercising its discretion, to take into account the congressional
policy underlying the Immigration and Nationality Act of 1952,
though that Act was inapplicable to this case. P. 353 U. S.
(e) The conclusion that the Board, in exercising its discretion,
may take into account the current policies of Congress is fortified
by the fact that § 19(c) provides for close congressional
supervision over suspensions of deportation. Pp. 353 U. S.
233 F.2d 705, affirmed.
Page 353 U. S. 73
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a habeas corpus proceeding to test the validity of an
order of the Board of Immigration Appeals denying petitioners'
request for suspension of deportation.
Petitioners are husband and wife, both aliens. Prior to 1951,
both worked as seamen on foreign vessels. In July, 1951, the wife
lawfully entered the United States as a crew member of a ship in a
United States port. Being pregnant, she sought medical advice;
subsequently, she decided in the interest of her health to stay
ashore. A month later, on the next occasion his ship arrived in the
United States, her husband joined her; he also failed to leave on
the expiration of his limited lawful stay. [Footnote 1
] In November, 1951, their child was born;
the child is, of course, an American citizen by birth. In January,
1952, petitioners voluntarily disclosed their illegal presence to
the Immigration Service and applied for suspension of deportation
under § 19(c) of the Immigration Act of 1917, which provides, in
"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 . . .
Page 353 U. S. 74
deportation of such alien if he is not ineligible for
naturalization . . . 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. . . . [Footnote
Deportation proceedings were instituted in May, 1952, and a
hearing was held. On the undisputed facts, both aliens were found
deportable. As to the issue of suspension of deportation, the
Hearing Officer, while finding petitioners eligible for such
relief, denied the request, stating as follows:
"Both respondents have applied for suspension of deportation on
the ground of the economic detriment that would befall their minor
son in the event they were deported. . . . Both disclaim having a
criminal record anywhere, and both allege that they have been
persons of good moral character. Evidence of record would tend to
corroborate their testimony in this respect. Their only income is
from the employment of the male respondent on two jobs. . . . Their
joint assets consist of savings in the sum of about $500 and their
furniture and other personal property, which they value at $1500.
While it would seem that their son . . . would suffer economically
if his parents should be deported, it is not believed that, as a
matter of administrative discretion, the respondents' applications
for suspension of deportation should be granted. They have been in
the United States for a period of less than one year. They have no
relatives in this country other than each other and their son. To
grant both this form of relief upon the accident of birth in the
United States of their son
Page 353 U. S. 75
would be to deprive others who are patiently awaiting visas
under their already oversubscribed quotas. It is noted also that
neither respondent reported his and her presence in the United
States at any time until January, 1952, when they filed
applications for suspension of deportation just two months after
the birth of their child. . . ."
The Board of Immigration Appeals heard petitioners' appeal, and,
on March 18, 1954, upheld the Hearing Officer's recommendation and
denied suspension of deportation. The Board stated:
"It is obvious that the American citizen infant child is
dependent upon the alien parents for economic support, care and
maintenance. Documentary and other evidence establish good moral
character for the requisite period. The aliens have no connection
with subversive groups."
"* * * *"
"As stated above, we have, in the instant case, a family
consisting of two alien parents illegally residing in the United
States and one American citizen child, age about two and one-half
years. These respondents have been in the United States for a
period of less than three years. Both arrived in this country as
seamen. They have no other dependents or close family ties here.
The record indicates that the male respondent may be able to obtain
work as a Greek seaman and earn about $85 monthly."
"Notwithstanding the fact that . . . the deportation of these
respondents would result in a serious economic detriment to an
American citizen infant child, the granting or withholding of
maximum discretionary relief depends on the factors and merits in
each individual case, and is a matter of administrative
Page 353 U. S. 76
discretion. We have carefully examined the facts and
circumstances in the instant case, and we find that the granting of
the maximum relief is not warranted by the record in the case. . .
Petitioners thereupon moved for reconsideration. On May 5, 1954,
the Board denied the motion, stating:
"Counsel's motion sets forth no matters of which we were unaware
at the time our previous decision was rendered. It is crystal clear
that Congress intended to greatly restrict the granting of
suspension of deportation by the change of phraseology which was
used in Section 244(a) of the Immigration and Nationality Act [of
1952], as well as the Congressional comment at the time this
provision was enacted. [Footnote
] We indicated in our previous order that the deportation of
the respondents would result in
Page 353 U. S. 77
a serious economic detriment to their citizen minor child, and
we do not question that the respondents have established the
statutory requirements for suspension of deportation. . . ."
"* * * *"
"Upon our further review of the cases of the two respondents, we
adhere to our previous decision that suspension of deportation
should be denied as a matter of administrative discretion. . .
Taken into custody for deportation, petitioners instituted the
present habeas corpus proceeding, alleging that the Board abused
its discretion in denying their application for suspension of
deportation. The District Court dismissed the writ, 133 F. Supp.
433, and the Court of Appeals, one judge dissenting, affirmed, 233
F.2d 705. We granted certiorari. 352 U.S. 819.
We do not think that there was error in these proceedings. It is
clear from the record that the Board applied the correct legal
standards in deciding whether petitioners met the statutory
prerequisites for suspension of deportation. The Board found that
petitioners met these standards, and were eligible for relief. But
the statute does not contemplate that all aliens who meet the
minimum legal standards will be granted suspension. Suspension of
deportation is a matter of discretion and of administrative grace,
not mere eligibility; discretion must be exercised even though
statutory prerequisites have been met. [Footnote 4
Nor can we say that it was abuse of discretion to withhold
relief in this case. The reasons relied on by the Hearing Officer
and the Board -- mainly the fact that petitioners had established
no roots or ties in this country -- were neither capricious nor
Page 353 U. S. 78
Petitioners urge that the Board applied an improper standard in
exercising its discretion when, in its opinion on rehearing, it
took into account the congressional policy underlying the
Immigration and Nationality Act of 1952, the latter being
concededly inapplicable to this case. We cannot agree with this
contention. The second opinion makes clear that the Board still
considered petitioners eligible for suspension under the 1917 Act,
] and denied relief
solely as a matter of discretion. And we cannot say that it was
improper or arbitrary for the Board to be influenced, in exercising
that discretion, by its views as to congressional policy as
manifested by the 1952 Act. Section 19(c) does not state what
standards are to guide the Attorney General in the exercise of his
discretion. Surely it is not unreasonable for him to take
cognizance of present-day conditions and congressional attitudes,
any more than it would be arbitrary for a judge, in sentencing a
criminal, to refuse to suspend sentence because contemporary
opinion, as exemplified in recent statutes, has increased in rigor
as to the offense involved. This conclusion is fortified by the
fact that § 19(c) provides for close congressional supervision over
suspensions of deportation. In every case where suspension for more
than six months is granted, a report must be submitted to Congress,
and if thereafter Congress does not pass a concurrent resolution
approving the suspension of deportation, the alien must then be
deported. [Footnote 6
] In other
words, every such
Page 353 U. S. 79
suspension must be approved by Congress, and yet petitioners
would have us hold that the Attorney General may not take into
account the current policies of Congress in exercising his
discretion. This we cannot do.
There being no error, the judgment is affirmed.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of this case.
Under certain conditions, alien crewmen are permitted to enter
the United States for periods not exceeding 29 days. See
U.S.C. §§ 1281-1287.
8 U.S.C. (1946 ed., Supp. V) § 155(c).
Section 244 of the 1952 Act, 8 U.S.C. § 1254(a), provides, in
"As hereinafter prescribed in this section, the Attorney General
may, in his discretion, suspend deportation . . . in the case of an
alien who --"
"* * * *"
"(5) . . . has been physically present in the United States for
a continuous period of not less than ten years . . . and proves
that, during all of such period, he has been and is a person of
good moral character; has not been served with a final order of
deportation . . . , and is a person whose deportation would, in the
opinion of the Attorney General, result in exceptional and
extremely unusual hardship to the alien or to his spouse, parent,
or child, who is a citizen or an alien lawfully admitted for
A report of the Senate Judiciary Committee on this provision
"The bill accordingly establishes a policy that the
administrative remedy should be available only in the very limited
category of cases in which the deportation of the alien would be
unconscionable. Hardship or even unusual hardship to the alien or
to his spouse, parent, or child is not sufficient to justify
suspension of deportation. . . ."
S.Rep. No. 1137, 82d Cong., 2d Sess. 25. (Footnote not in
United States ex rel. Kaloudis v. Shaughnessy,
489; United States ex rel. Adel v. Shaughnessy,
371. Cf. Jay v. Boyd, 351 U. S. 345
Petitioners would clearly be ineligible for suspension under the
1952 Act. See note 3
The statute provides:
"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. These reports shall be submitted on the 1st and
15th day of each calendar month in which Congress is in session.
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. If, prior to the close of the session of
the Congress next following the session at which a case is
reported, the Congress does not pass such a concurrent resolution,
the Attorney General shall thereupon deport such alien in the
manner provided by law. . . ."
8 U.S.C. (1946 ed., Supp. V) §155(c).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
This case, on its face, seems to be an instance of a deportation
which would "result in serious economic detriment to a citizen," as
those words are used in § 19(c) of the Immigration Act of 1917.
The citizen is a five-year-old boy who was born here and who,
therefore, is entitled to all the rights, privileges, and
immunities which the Fourteenth Amendment bestows on every citizen.
A five-year-old boy cannot enjoy the educational, spiritual, and
economic benefits which our society affords unless he is with his
parents. His parents are law-abiding and self-supporting. From this
record, it appears that they are good members of the community.
They do not seem to have done anything illegal or antisocial that
should penalize their American son.
Page 353 U. S. 80
It would seem, therefore, that the maintenance of this young
American citizen in a home in America is the way to effectuate the
policy of the 1917 Act.
The Board did not treat the case that way. Instead, it imported
into the 1917 Act the standard prescribed by the 1952 Act, which
concededly is inapplicable here. That was the error which led Judge
Frank to dissent below. 233 F.2d 705, 709, 710. I think Judge Frank
was right. Prevailing congressional policy on the approval or
disapproval of suspension orders in nowise affects the standards
prescribed for administrative action under the 1917 Act.
The Board erroneously followed irrelevant standards instead of
exercising its discretion under the applicable statute,
§ 19(c) of the 1917 Act.