In No. 80, the Court of Appeals for the Second Circuit
originally set aside a deportation order against petitioner on the
ground that the Government has the burden of proving the facts
supporting deportability beyond a reasonable doubt, but then
reversed itself and held that the Government need only prove its
case with reasonable, substantial, and probative evidence. In No.
40, the Court of Appeals for the Sixth Circuit did not explicitly
deal with the burden of persuasion imposed on the Government at the
administrative level, but found only that the underlying
deportation order was supported by reasonable, substantial, and
probative evidence on the record considered as a whole. Section
106(a)(4) of the Immigration and Nationality Act states that a
deportation order, "if supported by reasonable, substantial, and
probative evidence on the record considered as a whole, shall be
conclusive," and § 242(b)(4) of the Act provides that "no decision
of deportability shall be valid unless it is based upon reasonable,
substantial, and probative evidence."
Held: No deportation order may be entered unless the
Government proves by clear, unequivocal, and convincing evidence
that the facts alleged as grounds for deportation are true. Pp.
385 U. S.
282-286.
(a) Sections 106(a)(4) and 242(b)(4) of the Act are addressed to
the scope of judicial review, and not to the degree of proof
required at the administrative level in deportation proceedings.
Pp.
385 U. S.
282-284.
(b) Congress has not specified the degree of proof required in
deportation proceedings, a matter traditionally left to the courts
to resolve. P.
385 U. S.
284.
(c) In denaturalization and expatriation cases, the Government
has been required by the Court to establish its allegations by
clear,
Page 385 U. S. 277
unequivocal, and convincing evidence, and that burden of proof
is likewise appropriate in deportation proceedings. Pp.
385 U. S.
285-286.
No. 40, 370 F.2d 989, and No. 80, 350 F.2d 894, 901, judgments
set aside and remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The question presented by these cases is what burden of proof
the Government must sustain in deportation proceedings. We have
concluded that it is incumbent upon the Government in such
proceedings to establish the facts supporting deportability by
clear, unequivocal, and convincing evidence.
In Sherman (No. 80), the petitioner is a resident alien who
entered this country from Poland in 1920 as a 14-year-old boy. In
1963, the Immigration and Naturalization Service instituted
proceedings to deport him upon the ground that he had reentered the
United States in 1938, following a trip abroad, without inspection
as an
Page 385 U. S. 278
alien. [
Footnote 1] After a
hearing before a special inquiry officer, the petitioner was
ordered to be deported, and the Board of Immigration Appeals
dismissed his appeal. [
Footnote
2]
The Government's evidence showed that the petitioner had
obtained a passport in 1937 under the name of Samuel Levine,
representing himself as a United States citizen. Someone using this
passport sailed to France in June, 1937, proceeded to Spain,
returned to the United States in December, 1938, aboard the S.S.
Ausonia, and was admitted without being examined as an alien. To
establish that it was the petitioner who had traveled under this
passport, the Government introduced the testimony of Edward Morrow,
an American citizen who had fought in the Spanish Civil War. Morrow
was at first unable to remember the name Samuel Levine or identify
the petitioner, but eventually stated that he thought he had known
the petitioner as "Sam Levine," had seen him while fighting for the
Loyalists in Spain during 1937 and 1938, and had returned with him
to the United States aboard the S.S. Ausonia in December, 1938.
Morrow conceded that his recollection of events
Page 385 U. S. 279
occurring 27 years earlier was imperfect, and admitted that his
identification of the petitioner might be mistaken.
It is not clear what standard of proof the special inquiry
officer and the Board of Immigration Appeals on
de novo
review applied in determining that it was the petitioner who had
traveled to Spain and reentered the United States under the Samuel
Levine passport. At the outset of his opinion, the special inquiry
officer stated that the Government must establish deportability "by
reasonable, substantial and probative evidence," without discussing
what the burden of proof was. Later, he concluded that the
Government had established its contentions "with a solidarity far
greater than required," but did not further elucidate what was
"required." The Board of Immigration Appeals stated that it was
"established beyond any reasonable doubt" that the petitioner had
obtained the Samuel Levine passport, and added that this
established a "presumption" that the petitioner had used it to
travel abroad. The Board further stated that it was a "most
unlikely hypothesis" that someone other than the petitioner had
obtained and used the passport, and asserted that "the Service has
borne its burden of establishing" that the petitioner was
deportable, without indicating what it considered the weight of
that burden to be.
Upon petition for review, the Court of Appeals for the Second
Circuit originally set aside the deportation order upon the ground
that the Government has the burden of proving the facts supporting
deportability beyond a reasonable doubt. [
Footnote 3] The court reversed itself, however, upon a
rehearing en banc, holding that the Government need only prove its
case with "reasonable, substantial,
Page 385 U. S. 280
and probative evidence." [
Footnote 4] We granted certiorari, 384 U.S. 904.
In
Woodby (No. 40), the petitioner is a resident alien
who was born in Hungary and entered the United States from Germany
in 1956 as the wife of an American soldier. Deportation proceedings
were instituted against her on the ground that she had engaged in
prostitution after entry. [
Footnote
5] A special inquiry officer and the Board of Immigration
Appeals found that she was deportable upon the ground charged.
At the administrative hearing, the petitioner admitted that she
had engaged in prostitution for a brief period in 1957, some months
after her husband had deserted her, but claimed that her conduct
was the product of circumstances amounting to duress. Without
reaching the validity of the duress defense, the special inquiry
officer and the Board of Immigration Appeals concluded that the
petitioner had continued to engage in prostitution after the
alleged duress had terminated. The hearing officer and the Board
did not discuss what burden of proof the Government was required to
bear in establishing deportability, nor did either of them indicate
the degree of certainty with which their factual conclusions were
reached. The special inquiry officer merely asserted that the
evidence demonstrated that the petitioner was
Page 385 U. S. 281
deportable. The Board stated that the evidence made it
"apparent" that the petitioner had engaged in prostitution after
the alleged duress had ended, and announced that "it is concluded
that the evidence establishes deportability. . . ."
In denying a petition for review, the Court of Appeals for the
Sixth Circuit did not explicitly deal with the issue of what burden
of persuasion was imposed upon the Government at the administrative
level, finding only that "the Board's underlying order is
supported by reasonable, substantial, and probative evidence on
the record considered as a whole. . . .'" We granted certiorari,
384 U.S. 904.
In the prevailing opinion in the
Sherman case, the
Court of Appeals for the Second Circuit stated that, "[i]f the
slate were clean," it
"might well agree that the standard of persuasion for
deportation should be similar to that in denaturalization, where
the Supreme Court has insisted that the evidence must be 'clear,
unequivocal, and convincing,' and that the Government needs 'more
than a bare preponderance of the evidence' to prevail. . . . But
here,"
the court thought, "Congress has spoken. . . ." 350 F.2d at 900.
This view was based upon two provisions of the Immigration and
Nationality Act which use the language "reasonable, substantial,
and probative evidence" in connection with deportation orders. The
provisions in question are § 106(a)(4) of the Act, which states
that a deportation order, "if supported by reasonable, substantial,
and probative evidence on the record considered as a whole, shall
be conclusive," [
Footnote 6]
and § 242(b)(4) of the Act, which provides,
inter alia,
that "no decision of deportability shall be valid unless it is
based upon reasonable, substantial, and probative evidence."
[
Footnote 7]
Page 385 U. S. 282
It seems clear, however, that these two statutory provisions are
addressed not to the degree of proof required at the administrative
level in deportation proceedings, but to quite a different subject
-- the scope of judicial review. The elementary but crucial
difference between burden of proof and scope of review is, of
course, a commonplace in the law. [
Footnote 8] The difference is most graphically illustrated
in a criminal case. There, the prosecution is generally required to
prove the elements of the offense beyond a reasonable doubt.
[
Footnote 9] But if the correct
burden of proof was imposed at the trial, judicial review is
generally limited to ascertaining whether the evidence relied upon
by the trier of fact was of sufficient quality and substantiality
to support the rationality of the judgment. In other words, an
appellate court in a criminal case ordinarily does not ask itself
whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt, but whether the judgment is
supported by substantial evidence. [
Footnote 10]
That § 106(a)(4) relates exclusively to judicial review is made
abundantly clear by its language, its context, and its legislative
history. Section 106 was added to the Act in 1961 in order
"to create a single, separate, statutory form of judicial review
of administrative orders for the deportation and exclusion of
aliens from the United States. [
Footnote 11]"
The section is entitled "Judicial Review of
Page 385 U. S. 283
Orders of Deportation and Exclusion," and, by its terms,
provides "the sole and exclusive procedure for" the "judicial
review of all final orders of deportation." Subsection 106(a)(4) is
a specific directive to the courts in which petitions for review
are filed. [
Footnote 12]
It is hardly less clear that the other provision upon which the
Court of Appeals for the Second Circuit relied, § 242(b)(4) of the
Act, is also addressed to reviewing courts, and, insofar as it
represents a yardstick for the administrative factfinder, goes, not
to the burden of proof, but rather to the quality and nature of the
evidence upon which a deportation order must be based. [
Footnote 13] The provision declares
that "reasonable, substantial, and probative evidence" shall be the
measure of whether a deportability decision is "valid" -- a word
that implies scrutiny by a reviewing tribunal of a decision already
reached by the trier of the facts. The location of this
Page 385 U. S. 284
provision in a section containing provisions dealing with
procedures before the special inquiry officer has little
significance when it is remembered that the original 1952 Act did
not itself contain a framework for judicial review -- although such
review was, of course, available by habeas corpus or otherwise.
See Marcello v. Bonds, 349 U. S. 302. And
whatever ambiguity might be thought to lie in the location of this
section is resolved by its legislative history. The Senate Report
explained § 242(b)(4) as follows:
"The requirement that the decision of the special inquiry
officer shall be based on reasonable, substantial and probative
evidence means that, where the decision rests upon evidence of such
a nature that it cannot be said that a reasonable person might not
have reached the conclusion which was reached, the case may not be
reversed because the judgment of the appellate body differs from
that of the administrative body. [
Footnote 14]"
We conclude, therefore, that Congress has not addressed itself
to the question of what degree of proof is required in deportation
proceedings. It is the kind of question which has traditionally
been left to the judiciary to resolve, [
Footnote 15] and its resolution is necessary in the
interest of the evenhanded administration of the Immigration and
Nationality Act.
The petitioners urge that the appropriate burden of proof in
deportation proceedings should be that which the law imposes in
criminal cases -- the duty of proving the essential facts beyond a
reasonable doubt. The Government, on the other hand, points out
that a deportation
Page 385 U. S. 285
proceeding is not a criminal case, and that the appropriate
burden of proof should consequently be the one generally imposed in
civil cases and administrative proceedings -- the duty of
prevailing by a mere preponderance of the evidence.
To be sure, a deportation proceeding is not a criminal
prosecution.
Harisiades v. Shaughnessy, 342 U.
S. 580. But it does not syllogistically follow that a
person may be banished from this country upon no higher degree of
proof than applies in a negligence case. This Court has not closed
its eyes to the drastic deprivations that may follow when a
resident of this country is compelled by our Government to forsake
all the bonds formed here and go to a foreign land where he often
has no contemporary identification. In words apposite to the
question before us, we have spoken of
"the solidity of proof that is required for a judgment entailing
the consequences of deportation, particularly in the case of an old
man who has lived in this country for forty years. . . ."
Rowoldt v. Perfetto, 355 U. S. 115,
355 U. S.
120.
In denaturalization cases, the Court has required the Government
to establish its allegations by clear, unequivocal, and convincing
evidence. [
Footnote 16] The
same burden has been imposed in expatriation cases. [
Footnote 17] That standard of proof is no
stranger to the civil law. [
Footnote 18]
Page 385 U. S. 286
No less a burden of proof is appropriate in deportation
proceedings. The immediate hardship of deportation is often greater
than that inflicted by denaturalization, which does not,
immediately at least, result in expulsion from our shores. And many
resident aliens have lived in this country longer and established
stronger family, social, and economic ties here than some who have
become naturalized citizens.
We hold that no deportation order may be entered unless it is
found by clear, unequivocal, and convincing evidence that the facts
alleged as grounds for deportation are true. [
Footnote 19] Accordingly, in each of the cases
before us, the judgment of the Court of Appeals is set aside, and
the case is remanded with directions to remand to the Immigration
and Naturalization Service for such further proceedings as,
consistent with this opinion, may be deemed appropriate. [
Footnote 20]
It is so ordered.
Page 385 U. S. 287
* Together with No. 80,
Sherman v. Immigration and
Naturalization Service, on certiorari to the United States
Court of Appeals for the Second Circuit, argued on November 16-17,
1966.
[
Footnote 1]
Section 241(a)(2) of the Immigration and Nationality Act of
1952, 66 Stat. 204, 8 U.S.C. § 1251(a)(2), provides for deportation
of any alien who "entered the United States without inspection or
at any time or place other than as designated by the Attorney
General. . . ." Prior to 1952, the Government was required to bring
deportation proceedings within five years of an alleged illegal
entry, 39 Stat. 889 (1917), as amended 8 U.S.C. § 155(a) (1946
ed.). Thus, under the prior law, the petitioner would not have been
subject to deportation proceedings commenced after 1943. However,
this time limit was retroactively eliminated by the 1952 Act, §
241(d), 66 Stat. 208, 8 U.S.C. § 1251(d).
See Developments
in the Law, Immigration and Nationality, 66 Harv.L.Rev. 643,
683-684.
[
Footnote 2]
In conformity with its usual practice, the Board made its own
independent determination of the factual issues after
de
novo examination of the record.
See Gordon &
Rosenfield, Immigration Law and Procedure 46-47 (1959).
[
Footnote 3]
350 F.2d 894.
[
Footnote 4]
350 F.2d at 901. The court adopted the reasoning of the opinion
which Judge Friendly had filed as a dissent to the original
decision. Judges Waterman and Smith, who had formed the original
majority, dissented.
[
Footnote 5]
Section 241(a)(12) of the Immigration and Nationality Act of
1952, 66 Stat. 207, 8 U.S.C. § 1251(a)(12), provides for the
deportation of any alien who,
"by reason of any conduct, behavior or activity at any time
after entry, became a member of any of the classes specified in
paragraph (12) of section 212(a). . . ."
Among the classes specified in § 212(a)(12) of the Act, 66 Stat.
182, 8 U.S.C. § 1182(a)(12), are "Aliens who are prostitutes or who
have engaged in prostitution. . . ."
[
Footnote 6]
75 Stat. 651 (1961), 8 U.S.C. § 1105a(a)(4).
[
Footnote 7]
66 Stat. 210 (1952), 8 U.S.C. § 1252(b)(4).
[
Footnote 8]
See Jaffe, Administrative Law: Burden of Proof and
Scope of Review, 79 Harv.L.Rev. 914 (1966); Comment, 41
N.Y.U.L.Rev. 622 (1966); Standard of Proof in Deportation
Proceedings, 18 Stan.L.Rev. 1237 (1966).
[
Footnote 9]
See McCormick, Evidence 681-685 (1954); 9 Wigmore,
Evidence § 2497 (3d ed. 1940).
[
Footnote 10]
E.g., Rutkin v. United States, 343 U.
S. 130,
343 U. S. 135.
For discussion of variations of and alternatives to the usual rule,
see Goldstein, The State and the Accused: Balance of
Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1157-1163
(1960).
[
Footnote 11]
H.R.Rep. No. 1086, 87th Cong., 1st Sess., 22.
[
Footnote 12]
"Judicial Review of Orders of Deportation and Exclusion"
"Sec. 106. (a) The procedure prescribed by, and all the
provisions of the Act of December 29, 1950, as amended (64 Stat.
1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to, and
shall be the sole and exclusive procedure for, the judicial review
of all final orders of deportation . . . except that --"
"
* * * *"
"(4) . . . the petition shall be determined solely upon the
administrative record upon which the deportation order is based and
the Attorney General's findings of fact, if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole, shall be conclusive. . . ."
75 Stat. 651 (1961), 8 U.S.C. § 1105a(a).
[
Footnote 13]
This has been recognized by the Board of Immigration Appeals
itself:
"Finally, it is important to bear in mind the distinction
between the burden of proof and the quality of the evidence which
is required to establish that burden successfully. It is to be
noted that subsection (b)(4) of section 242 of the act does not
speak of the burden of proof, but of the quality of the evidence
which the Service must produce before deportability can validly be
found. . . ."
Matter of V___, 7 I. & N.Dec. 460, 463.
[
Footnote 14]
14. S.Rep. No. 1137, 82d Cong., 2d Sess., 30. The House Report
contains substantially identical language. H.R.Rep. No. 1365, 82d
Cong., 2d Sess., 57.
[
Footnote 15]
See McBaine, Burden of Proof: Degrees of Belief, 32
Calif.L.Rev. 242 (1944).
See also 9 Wigmore, Evidence §§
2488-2493, 2497-2498 (3d ed. 1940).
[
Footnote 16]
Schneiderman v. United States, 320 U.
S. 118;
Baumgartner v. United States,
322 U. S. 665;
Nowak v. United States, 356 U. S. 660;
Chaunt v. United States, 364 U. S. 350.
[
Footnote 17]
Gonzales v. Landon, 350 U.S. 920;
Nishikawa v.
Dulles, 356 U. S. 129.
But see § 349(c) of the Immigration and Nationality Act,
75 Stat. 656 (1961), 8 U.S.C. § 1481(c).
[
Footnote 18]
This standard, or an even higher one, has traditionally been
imposed in cases involving allegations of civil fraud, and in a
variety of other kinds of civil cases involving such issues as
adultery, illegitimacy of a child born in wedlock, lost wills, oral
contracts to make bequests, and the like.
See 9 Wigmore,
Evidence § 2498 (3d ed. 1940).
[
Footnote 19]
This standard of proof applies to all deportation cases,
regardless of the length of time the alien has resided in this
country. It is perhaps worth pointing out, however, that, as a
practical matter, the more recent the alleged events supporting
deportability, the more readily the Government will generally be
able to prove its allegations by clear, unequivocal and convincing
evidence.
[
Footnote 20]
Section 106(a)(1) of the Act, 75 Stat. 651 (1961), 8 U.S.C. §
1105a(a) (1), provides that a petition for judicial review must be
filed with the Court of Appeals not later than six months after a
final order of deportation. In No. 40, Woodby, the petitioner's
appeal to the Board of Immigration Appeals was dismissed on March
8, 1963, and a motion for reconsideration was denied on May 27,
1963. Petition for review by the Court of Appeals was filed more
than six months after the Board upheld the deportation order, but
within six months after the denial of the motion to reconsider. The
Court of Appeals did not pass on the question whether, in such
circumstances, its power of review was limited to consideration
whether the denial of the motion for reconsideration was an abuse
of discretion, or whether it might also assess in full the validity
of the deportation order. Following the decision of the Court of
Appeals in this case, the Court of Appeals for the Ninth Circuit
held, in similar circumstances, that it had authority to undertake
full review of the deportation order, as well as the denial of the
motion to reconsider.
Bregman v. Immigration and Naturalization
Service, 351 F.2d 401. In light of the
Bregman
decision, the Government before this Court expressly abandoned its
contention that in this case the courts are limited to reviewing
the denial of the motion to reconsider.
See the
Government's brief in No. 40,
Woodby, p. 8, n. 3.
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN joins,
dissenting.
The Court, by placing a higher standard of proof on the
Government, in deportation cases, has usurped the legislative
function of the Congress and has, in one fell swoop, repealed the
long-established "reasonable, substantial, and probative" burden of
proof placed on the Government by specific Act of the Congress, and
substituted its own "clear, unequivocal, and convincing" standard.
This is but another case in a long line in which the Court has
tightened the noose around the Government's neck in immigration
cases.
I
I agree that § 106(a)(4), the 1961 amendment to the Immigration
and Nationality Act of 1952, relates to judicial review of
administrative orders of the Immigration Service but, with due
deference, I cannot see how "It is hardly less clear" that §
242(b)(4) of the Act, as the Court says, likewise applies
exclusively to judicial review. Indeed, on the contrary, the latter
section was specifically enacted as the only standard of proof to
be applied in deportation cases.
Before § 242(b) was enacted, the immigration laws contained no
detailed provision concerning the burden of proof in deportation
cases.
Kessler v. Strecker, 307 U. S.
22,
307 U. S. 34
(1939). In
Wong Yang Sung v. McGrath, 339 U. S.
33 (1950), this Court extended the provisions
Page 385 U. S. 288
of the Administrative Procedure Act to deportation proceedings.
Congress immediately exempted such proceedings from the
Administrative Procedure Act, and, in 1952, established in § 242(b)
an exclusive procedural system for deportation proceedings.
In essence, that section, § 242(b), provides for notice and a
hearing before a "special inquiry officer" of the Immigration
Service; sets the standard of proof in such cases as "reasonable,
substantial, and probative evidence"; and authorizes the Attorney
General to issue regulations. In issuing those regulations, the
Attorney General established a Board of Immigration Appeals. The
Board's relationship to the orders of the special inquiry officer
is similar to the relationship an agency has to the orders of a
hearing examiner under the Administrative Procedure Act. The
section also specifically provides that the regulations shall
include requirements that "no decision of deportability shall be
valid unless it is based upon reasonable, substantial, and
probative evidence," and that this standard shall be the "sole and
exclusive procedure for determining the deportability of an alien
under this section." This was the first time in our history that
Congress had expressly placed a specific standard of proof on the
Government in deportation cases. And the language Congress used
made it clear that this standard related to the "burden of proof"
as well as "the quality and nature of the evidence." The
requirement of "reasonable" evidence cannot be meant merely to
exclude "unreasonable" or "irrational" evidence, but carries the
obvious connotation from history and tradition of sufficiency to
sustain a conclusion by a preponderance of the evidence. [
Footnote 2/1] Congress in overruling
Wong Yang Sung,
Page 385 U. S. 289
supra, carved deportation proceedings from the judicial
overtones of the Administrative Procedure Act and established a
built-in administrative procedure.
This is made crystal clear by the reports of both Houses of
Congress on § 242(b). The Committee Reports, S.Rep. No. 1137, 82d
Cong., 2d Sess., 30; H.R.Rep. No. 1365, 82d Cong., 2d Sess., 57,
state in simple understandable language that:
"The requirement that the decision of the special inquiry
officer shall be based on reasonable, substantial, and probative
evidence means that, where the decision rests upon evidence of such
a nature that it cannot be said that a reasonable person might not
have reached the conclusion which was reached, the case may not be
reversed because the judgment of the appellate body differs from
that below."
The courts consistently applied the standard of "reasonable,
substantial and probative" evidence after the adoption of § 242(b).
See, e.g., Rowoldt v. Perfetto, 355 U.
S. 115,
355 U. S.
120-121 (1957).
The Court, however, in
Shaughnessy v. Pedreiro,
349 U. S. 48
(1955), once again extended the Administrative Procedure Act's
provision respecting judicial review to deportation cases. The
reaction of the Congress was identical to that of 1952 when it
overruled
Wong Yang Sung, supra. It enacted, in 1961, §
106(a)(4) of the Act. Just as § 242(b) was the first statutory
standard of proof, § 106(a)(4) was the first express statutory
standard of judicial review. It provided:
". . . the petition (for review) shall be determined solely upon
the administrative record upon which the deportation order is
based, and the Attorney
Page 385 U. S. 290
General's findings of fact, if supported by reasonable,
substantial, and probative evidence on the record considered as a
whole, shall be conclusive."
Why Congress passed § 106(a)(4) if judicial review, as the Court
holds, was already exclusively covered by § 242(b) is beyond my
comprehension -- unless it was engaged in shadow boxing. I cannot
believe that it was.
The Court says that both the special inquiry officer and the
Board of Immigration Appeals failed to state what the burden of
proof was in these cases. Fault is found in the officer's use of
the phrase "solidarity" of proof "far greater than required." This
language was apparently patterned after this Court's opinion in
Rowoldt, supra, where the phrase "solidity of proof" was
used. The findings of both the officers and the Board in these
cases show specifically that the burden of proof followed in each
case was that required of the Government in § 242(b) and the
Regulations of the Attorney General,
i.e., by "reasonable,
substantial, and probative evidence." This standard has been
administratively followed by the Immigration Service in a long and
unbroken line of cases.
See Matter of Peralta, 10 I. &
N. Dec. 43, 46.
The Court now extends the standard of
Schneiderman v. United
States, 320 U. S. 118
(1943), in denaturalization cases,
i.e., "clear,
unequivocal, and convincing evidence," to deportation cases. But
denaturalization and expatriation are much more oppressive cases
than deportation. They deprive one of citizenship which the United
States had previously conferred. The
Schneiderman rule
only follows the principle that vested rights can be canceled only
upon clear, unequivocal, and convincing proof; it gives stability
and finality to a most precious right -- citizenship. An alien,
however, does not enjoy citizenship, but only a conditional
privilege extended to him by the Congress as a matter of grace.
Both
Page 385 U. S. 291
petitioners, the record shows, knew this, yet they remained in
this country for years -- 46 in the case of Sherman and 10 in that
of Woodby. Still, neither made any effort to obtain
citizenship.
II
By treating these two cases as raising only a single issue, the
Court ignores some aspects of
Woodby which greatly trouble
me. Woodby sought review of the final deportation order against her
more than six months after entry of that order. Section 106(a)(1)
of the Act specifically limits the jurisdiction of the Court of
Appeals to consideration of petitions for review "filed not later
than six months from the date of the final deportation order." The
legislative history of that provision makes it clear that Congress
intended it to be strictly enforced in order to alleviate the
spectacle of aliens subject to deportation orders and able to
remain in this country for long periods of time by employing
dilatory legal tactics.
See H.R.Rep. No. 565, 87th Cong.,
1st Sess. Since there is no time limit on petitions for rehearing
or reconsideration, 8 CFR §§ 242.22, 103.5, permitting review of a
final order of deportation merely because a timely petition for
review of an administrative refusal to reopen the proceedings has
been filed would negate the congressional purpose behind the
insistence on timely filing in § 106(a)(1).
Lopez v. United
States Department of Justice, 356 F.2d 986,
cert.
denied, 385 U.S. 839. [
Footnote
2/2]
Page 385 U. S. 292
The Court holds only that
"no deportation order may be entered unless it is found by
clear, unequivocal, and convincing evidence that the facts alleged
as grounds for deportation are true."
(Italics added.) The ground alleged for deportation of Woodby
was that she had "engaged in prostitution after entry." It has
never been contended that this ground was not properly established.
In fact, it is conceded that Woodby engaged in prostitution. The
only factual dispute involved in her case centers on the question
whether her activities arose from duress and ended when the
conditions compelling her to stray ceased to exist. It seems clear
to me that, since Woodby is raising duress as an affirmative
defense, she bears the burden of establishing all elements of that
defense.
See In the Matter of M___, 7 I. & N. Dec.
251. And the record clearly shows that both the administrative
authorities and the Court of Appeals rejected Woodby's "bizarre"
story. Under familiar principles, those findings are binding on
this Court,
Universal Camera Corp. v. Labor Board,
340 U. S. 474, and
nothing in what the Court holds today affects that conclusion.
I regret that my powers of persuasion with my Brethren are not
sufficient to to prevent this encroachment upon the function of the
Congress which will place an undue and unintended burden upon the
Government in deportation cases. I dissent.
[
Footnote 2/1]
Thus the judicial review provision of the Administrative
Procedure Act, 5 U.S.C. § 1009(e)(5), limits the scope of review to
a determination of support by "substantial evidence," and 5 U.S.C.
§ 1006 limits the agencies to acting on "reliable, probative, and
substantial evidence." This pattern has traditionally been held
satisfied when the agency decides on the preponderance of the
evidence.
[
Footnote 2/2]
In
Giova v. Rosenberg, 379 U. S.
18, this Court held only that denial of a petition to
reopen or reconsider is reviewable. The Court did not specify the
scope of review to be applied. The Court may be depending upon a
concession by the Government on this point, but it is clear that
jurisdiction cannot be waived.
King Bridge Co. v. Otoe
County, 120 U. S. 225;
Good Shot v. United States, 179 U. S.
87.