Petitioner, an alien whose deportation had been ordered, applied
under § 19(c) of the Immigration Act of 1917, as amended, for an
order suspending his deportation or permitting his voluntary
departure. In an administrative hearing on his application, he was
asked whether he was a member of the Communist Party. He refused to
answer, claiming the Fifth Amendment privilege against
self-incrimination. His application was denied on the ground that
he had failed to prove his eligibility under § 19 and the Internal
Security Act of 1950.
Held: denial of his application is sustained, since
§19(d) and the Internal Security Act of 1950 make Communists
ineligible for suspension of deportation, and the burden was on
petitioner to show that he was eligible for such suspension. Pp.
363 U. S.
405-408.
263 F.2d 773 affirmed.
PER CURIAM.
Petitioner applied for suspension of an order directing his
deportation to Korea or permitting his voluntary departure. He does
not question the validity of the deportation order, but contends
that he is within the eligible statutory class whose deportation
may be suspended at the discretion of the Attorney General. § 19(c)
of the Immigration Act of 1917, as amended. Relief on this score
was denied on the basis that the Attorney General has no power to
exercise his discretion in
Page 363 U. S. 406
that regard, since petitioner failed to prove his eligibility
under that section and the Internal Security Act of 1950.
Before the hearing officer, petitioner was asked if he was a
member of the Communist Party. He refused to answer, claiming the
Fifth Amendment privilege against self-incrimination. The officer
refused the suspension on the grounds that petitioner had failed to
prove that he was a person of good moral character and that he had
not met the statutory requirement of showing that he was not a
member of or affiliated with the Communist Party. The Board of
Immigration Appeals affirmed on the latter ground, as did the Court
of Appeals.
Kimm v. Hoy, 263 F.2d 773.
Petitioner contends that he presented "clear affirmative
evidence" as to eligibility which stands uncontradicted, and that
the burden was on the Government to show his affiliations, if any,
with the Party. He contends that the disqualifying factor of
Communist Party membership is an exception to § 19(c) which the
Government must prove. We think not. Rather than a proviso, it is
an absolute disqualification, since that class of aliens is carved
out of the section at its very beginning by the words "other than
one to whom subsection (d) of this section is applicable."
[
Footnote 1] Subsection (d)2
referred to aliens
Page 363 U. S. 407
deportable under the Act of October 16, 1918. Section 2
[
Footnote 2] of the Internal
Security Act of 1950 amended the 1918 Act to include Communists,
[
Footnote 3] and thus
terminated the discretionary authority under § 19(c) as to any
alien who was deportable because of membership in the Communist
Party. Petitioner offered no evidence on this point, although the
regulations place on him the burden of proof as to "the statutory
requirements precedent to the exercise of discretionary relief." 8
CFR, 1949 ed., § 151.3(e), as amended, 15 Fed.Reg. 7638. This
regulation is completely
Page 363 U. S. 408
consistent with § 19(c). The language of that section, in
contrast with the statutory provisions governing deportation,
imposes the general burden of proof upon the applicant.
It follows that an applicant for suspension, "a matter of
discretion and of administrative grace,"
Hintopoulos v.
Shaughnessy, 353 U. S. 72,
353 U. S. 77
(1957), must, upon the request of the Attorney General, supply such
information that is within his knowledge and has a direct bearing
on his eligibility under the statute. The Attorney General may, of
course, exercise his authority of grace through duly delegated
agents.
Jay v. Boyd, 351 U. S. 345
(1956). Perhaps the petitioner was justified in his personal
refusal to answer -- a question we do not pass upon -- but this did
not relieve him under the statute of the burden of establishing the
authority of the Attorney General to exercise his discretion in the
first place.
Affirmed.
[
Footnote 1]
Section 19(c) provided, in relevant part:
"In the case of any alien (other than one to whom subsection (d)
of this section is applicable) 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 . . . (2) suspend
deportation of such alien if he is not ineligible for
naturalization . . . if he finds . . . (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. . . ."
8 U.S.C. (1946 ed., Supp. II) § 155(c).
[
Footnote 2]
Section 19(d), as amended:
"The provisions of subsection (c) shall not be applicable in the
case of any alien who is deportable under (1) the Act of October
16, 1918 (40 Stat. 1008; U.S.C., title 8, sec. 137), entitled 'An
Act to exclude and expel from the United States aliens who are
members of the anarchist and similar classes', as amended. . .
."
54 Stat. 672, 8 U.S.C. (1946 ed.) § 155(d).
[
Footnote 3]
The Act of October 16, 1918, c. 186, 40 Stat. 1012, as amended
by the Internal Security Act of 1950, c. 1024, § 22, 64 Stat.
1006-1008, provided in pertinent part:
"Any alien who is a member of any one of the following classes
shall be excluded from admission into the United States:"
"
* * * *"
"(2) Aliens who at any time, shall be or shall have been members
of any of following classes:"
"
* * * *"
"(C) Aliens who are member of or affiliated with (i) the
Communist Party of the United States, (ii) any other totalitarian
party of the United States, (iii) the Communist Political
Association, (iv) the Communist or other totalitarian party of any
State of the United States, of any foreign state, or of any
political or geographical subdivision of any foreign state; (v) any
section, subsidiary, branch, affiliate, or subdivision of any such
association or party; or (vi) the direct predecessors or successors
of any such association or party, regardless of what name such
group or organization may have used, may now bear, or may hereafter
adopt;"
"
* * * *"
"Sec. 4. (a) Any alien who was at the time of entering the
United States, or has been at any time thereafter, . . . a member
of any one of the classes of aliens enumerated in section 1(2) of
this Act, shall, upon the warrant of the Attorney General, be taken
into custody and deported. . . ."
MR. JUSTICE DOUGLAS, with whom The CHIEF JUSTICE and MR. JUSTICE
BLACK concur, dissenting.
It has become much the fashion to impute wrongdoing to or do
impose punishment on a person for invoking his constitutional
rights. [
Footnote 2/1] Lloyd
Barenblatt has served a jail sentence for invoking his First
Amendment rights.
See Barenblatt v. United States,
360 U. S. 109. As
this is written, Dr. Willard Uphaus, as a consequence of our
Page 363 U. S. 409
decision in
Uphaus v. Wyman, 360 U. S.
72, is in jail in New Hampshire for invoking rights
guaranteed to him by the First and Fourteenth Amendments. So is the
mathematician, Horace Chandler Davis, who invoked the First
Amendment against the House Un-American Activities Committee.
Davis v. United States, 269 F.2d 357 (C.A. 6th Cir.).
Today we allow invocation of the Fifth Amendment to serve, in
effect, though not in terms, as proof that an alien lacks the "good
moral character" which he must have under § 19(c) of the
Immigration Act in order to become eligible for the dispensing
powers entrusted to the Attorney General.
The import of what we do is underlined by the fact that there is
not a shred of evidence of bad character in the record against this
alien. The alien has fully satisfied the requirements of § 19(c),
as shown by the record. He entered as a student in 1928, and
pursued his studies until 1938. He planned to return to Korea, but
the outbreak of hostilities between China and Japan in 1937 changed
his mind. Since 1938, he has been continuously employed in gainful
occupations. That is the sole basis of his deportability. [
Footnote 2/2] The record shows no criminal
convictions, nothing that could bring stigma to the man. His
employment since 1938 has been as manager of a produce company, as
chemist, as foundry worker, and as a member of O.S.S. during the
latter part of World War II. He also was self-employed in the
printing business, publishing a paper "Korean Independence." No one
came forward to testify that he was a Communist. There is not a
word of evidence that he had been a member of the Communist Party
at any time. The only thing that stands in his way of being
eligible for suspension of deportation
Page 363 U. S. 410
by the Attorney General is his invocation of the Fifth
Amendment.
The statute says nothing about the need of an alien to prove he
never was a Communist. If the question of Communist Party
membership had never been asked and petitioner had never invoked
the Fifth Amendment, can it be that he would still be ineligible
for suspension? It is for me unthinkable. Presumption of innocence
is too deeply ingrained in our system for me to believe that an
alien would have the burden of establishing a negative. What the
case comes down to is simply this: invocation of the Fifth
Amendment creates suspicions and doubts that cloud the alien's
claim of good moral character.
Imputation of guilt for invoking the protection of the Fifth
Amendment carries us back some centuries to the hated oath
ex
officio used both by the Star Chamber and the High Commission.
Refusal to answer was contempt. [
Footnote 2/3] Thus was started in the English-speaking
world the great rebellion against oaths that either violated the
conscience of the witness or were used to obtain evidence
against
Page 363 U. S. 411
him.
See Ullmann v. United States, 350 U.
S. 422,
350 U. S.
445-449 (dissenting opinion).
I had assumed that invocation of the privilege is a neutral act,
as consistent with innocence as with guilt. We pointed out in
Slochower v. Board of Education, 350 U.
S. 551,
350 U. S.
557-558: "The privilege serves to protect the innocent
who otherwise might be ensnared by ambiguous circumstances." We
re-emphasized that view in
Grunewald v. United States,
353 U. S. 391,
353 U. S.
421:
"Recent reexamination of the history and meaning of the Fifth
Amendment has emphasized anew that one of the basic functions of
the privilege is to protect innocent men."
We went further in
Konigsberg v. State Bar,
353 U. S. 252,
353 U. S. 267,
and in
Schware v. Board of Bar Examiners, 353 U.
S. 232,
353 U. S. 246,
and held that even past membership in the Communist Party was not,
by itself, evidence that the person was of bad moral character.
We therefore today make a marked departure from precedent when
we attach a penalty for reliance on the Fifth Amendment. The Court
in terms does not, and cannot, rest its decision on the ground
that, by invoking the Fifth Amendment, the petitioner gave evidence
of bad moral character. Yet the effect of its decision is precisely
the same. In so holding, we disregard history, and, in the manner
of the despised oath
ex officio, attribute wrongdoing to
the refusal to answer. It seems to me indefensible for courts which
act under the Constitution to draw an inference of bad moral
character from the invocation of a privilege which was deemed so
important to this free society that it was embedded in the Bill of
Rights.
[
Footnote 2/1]
Meiklejohn, Political Freedom (1960) pp. 154-155, after
referring to the efforts of legislative committees to compel
Americans to give testimony "about their political beliefs and
affiliations," goes on to say:
". . . in that field, the Fifth and the First Amendments are
joined together, as their motives have been joined for centuries,
in requiring of free citizens and of free institutions that they
resist with all their might the irresponsible usurpations of a
legislature which would attempt to tell men what they may believe
and what they may not believe, with whom they may associate, and
with whom they may not associate."
[
Footnote 2/2]
Petitioner was admitted as a student pursuant to § 4(e) of the
Immigration Act of 1924. 43 Stat. 155, 8 U.S.C. (1946 ed.) §
204(e).
[
Footnote 2/3]
See Maguire, Attack of the Common Lawyers on the Oath
Ex Officio As Administered in the Ecclesiatical Courts in
England, Essays in History and Political Theory (1936), c. VII, p.
199 at 215, where the procedure of the High Commission is
described:
"Thus, the defendant swore to answer fully and truly all
questions which might be put to him before he knew the charges in
detail, and, in cases
ex officio, without knowing the
accuser. Either party could produce witnesses who gave their
depositions on oath, but, in the most important cases
ex
officio mero, the whole trial was based on the answers of the
defendant. As in the Star Chamber, the judges delivered their
opinions
seriatim, and the decree accorded with the
decision of the majority."
"Thus, the crux of the procedure was the oath
ex
officio. Until the defendant had been sworn, the articles for
his examination could not be produced; until he had been examined,
the case could not proceed to trial. Refusal or partial answers
constituted contempt, followed by imprisonment; perjury was a
cardinal sin."
MR. JUSTICE BRENNAN, with whom The CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.
Suspension of deportation may be "a matter of discretion and of
administrative grace,"
United States ex rel. Hintopoulos v.
Shaughnessy, 353 U. S. 72,
353 U. S. 77,
but eligibility
Page 363 U. S. 412
for suspension, for the exercise of that discretion, is very
much a matter of law.
McGrath v. Kristensen, 340 U.
S. 162,
340 U. S. 169.
The decision of the Board of Immigration Appeals was that
petitioner was not, under the governing statute, eligible for
suspension; and, on that basis, its order must stand or fall in
court.
Securities & Exchange Comm. v. Chenery Corp.,
318 U. S. 80,
318 U. S.
87.
The only basis of the Appeals Board's determination of
ineligibility that the Government seriously defends here is the
Board's finding that the petitioner had not shown he was not
deportable under §§ 1 and 4 of the Act of October 16, 1918, 40
Stat. 1012, as amended by § 22 of the Internal Security Act of
1950, 64 Stat. 1006, 1008. Those provisions retroactively made
deportable an alien who had been a Communist Party member at any
time since his entry into the United States; and § 19 of the 1917
Immigration Act, 39 Stat. 889, as later amended, [
Footnote 3/1] under which petitioner's eligibility
for suspension was determined, made those aliens who were
deportable on that basis ineligible for suspension of
deportation.
It has not been, and scarcely could be, controverted that the
Government must, in general, bear the burden of demonstrating, in
administrative proceedings, the deportability of an alien; whatever
the exceptions to this rule may be, [
Footnote 3/2] it was established by the time relevant
here that,
Page 363 U. S. 413
where post-entry misconduct is charged as the basis for
deportability, the burden is the Government's.
Hughes v.
Tropello, 296 F. 306, 309;
Werrmann v. Perkins, 79
F.2d 467, 469. Here, the Government never bore any burden of
showing that petitioner was deportable as having been, since his
entry, a Communist. The determination of his deportability was made
on entirely different grounds; that (as was conceded) he had failed
to maintain the student status on the basis of which he had been
admitted to the United States. At the hearing on suspension of
deportation, the Government introduced literally no evidence even
remotely suggesting that petitioner had ever been a Communist, and
much evidence as to petitioner's good character was introduced.
But, apparently at random, and out of the blue, petitioner was
asked about membership in the Communist Party, and he declined to
answer, citing his constitutional privilege against
self-incrimination. On this basis, the administrative officials
found that he was ineligible for suspension of deportation.
If the basis on which it was sought to deport petitioner in the
first place was that he was deportable as a Communist or
ex-Communist under §§ 1 and 4 of the 1918 Act, as amended, it could
hardly be contended that this would be evidence, let alone
sufficient evidence, that he was or had been a Communist, on which
to base a finding of deportability.
Cf. Slochower v. Board of
Higher Education, 350 U. S. 551. The
provision in § 19 of the 1917 Immigration Act, as amended, which is
relied on disqualifies from suspension an alien who is "deportable"
under the other Act, and one would think the burden of
Page 363 U. S. 414
proof of deportability in both circumstances should be the same.
The most obvious case, of course, for the application of § 19's
disqualification from suspension is the one in which the
Government, in the deportation proceedings, has already borne the
burden of proving the alien deportable under the amended 1918 Act.
It is an anomaly that the burden of proof shifts, there ceases to
be a requirement of evidence of deportability as a Communist or
ex-Communist, and the alien must prove a negative in order to
qualify for suspension, when the Government has chosen to base
deportation on some other ground. In support of this, the Court
cites only a regulation which stated in general terms that it was
up to the alien to show his eligibility for suspension. 8 CFR, 1949
ed., § 151.3(e), as added, 15 Fed.Reg. 7638.
I would think it perfectly plain that such a regulation as
applied in this case would be contrary to the statutory scheme,
properly and responsibly construed. [
Footnote 3/3] In the first place, as I have noted, it
turns around the ordinary rules as to the burden of proof as to
which party shall show "deportability." It requires the alien to
prove a negative -- that he never was a Communist since he entered
the country -- when no one has said or intimated that he was. Such
proof would necessarily lead to petitioner's bearing the laboring
oar in showing that all his political or economic expressions in
this country were independent of any covert connection with the
Communist Party. The effect of imposing such a burden of
exculpation on the exercise, for example, of non-Communist
political action on behalf of causes which Communists might also
happen to favor
Page 363 U. S. 415
is obvious. In fact, on this very basis, we not so long ago
struck down a state statute which placed on an individual desiring
a tax exemption the burden of proof to show that his political
activities were not of a proscribed nature -- of a nature,
moreover, which we assumed the State had the power directly to
proscribe.
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 520.
We have this Term reaffirmed the central principle of that case,
its inhibition on procedural devices which, though designed to
reach legitimate ends, impose burdens on the exercise of the
freedom of speech, in a subsequent decision, by striking down
another state enactment.
Smith v. California, 361 U.
S. 147. On such a basis, we declared the enactments of
sovereign States unconstitutional; I think we should hardly be less
willing to apply the same doctrine to set aside, as not statutorily
warranted, a federal administrative regulation which anomalously
turns about the ordinary state of the burden of proof as to
"deportability" and in fact so far dispenses with the ordinary
requirement of evidence of "deportability" that the alien must
shoulder the burden of negating it even where the Government has
introduced no evidence at all on the issue.
We are, apart from construction of the Constitution, responsible
for the proper construction of Acts of Congress, and for
determining the validity of challenged administrative regulations
and procedures under them. Here we are called upon only to put a
rational construction upon a federal statute, and the allocation of
the burden of proof under it, that will promote the statute's
internal consistency and minimize its frictions with the First
Amendment. One of the relevant enactments, § 22 of the 1950
Internal Security Act, is a harsh one whose constitutionality was
upheld here only on historical grounds.
See Galvan v.
Press, 347 U. S. 522,
347 U. S.
530-532. By subscribing to the anomalous allocation of
the burden of proof here, we increase the statute's harshness,
promote the procedural
Page 363 U. S. 416
restriction on the freedom of speech which we condemned in
Speiser and
Smith, and, in practical effect,
because of the allocation, let this petitioner's invocation of his
constitutional privilege be equated with a demonstration of his
deportability as to the matters on which he invoked the privilege.
I cannot subscribe to a construction that has this effect, and
accordingly dissent.
[
Footnote 3/1]
The suspension provisions, with their reference to deportability
under the 1918 Act as a disqualification, were added to the old §
19 through the amendments of 1940 and 1948, 54 Stat. 672, 62 Stat.
1206.
The validity of the proceedings here is to be tested under the
law as it stood as of the time of the administrative hearing and
review in 1951 and early 1952, before the passage of the
Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C. §
1101
et seq., on June 27, 1952.
See § 405(a) of
the later Act, 66 Stat. 280.
[
Footnote 3/2]
Section 23 of the 1924 Immigration Act, 43 Stat. 165, placed the
burden on the alien in a deportation proceeding to show that he had
been lawfully admitted to the country. The current Act is to the
same effect. § 291, 66 Stat. 234, 8 U.S.C. § 1361. The courts in
the cases cited in text drew a sharp distinction between this issue
and the matter of deportability owing to post-admission conduct.
The failure of Congress to specify other issues on which the alien
has the burden is confirmation of the correctness of these
decisions.
See United States ex rel. Bilokumsky v. Tod,
263 U. S. 149,
263 U. S.
153.
[
Footnote 3/3]
Section 19(c) in terms imposes a burden of proof on the alien as
to his good moral character, but is silent as to the burden of
proof otherwise. And it is in § 19(d) that the noneligibility of
those deportable under the amended 1918 Act is provided for; and §
19(d) is inexplicit as to the burden of proof. Accordingly, no
support for this application of the regulation can be found in §
19(c).