Jay v. Boyd – Oral Argument – May 03, 1956 (Part 2)

Media for Jay v. Boyd

Audio Transcription for Oral Argument – May 03, 1956 (Part 1) in Jay v. Boyd

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Earl Warren:

Mr. Caughlan, you may proceed.

John Caughlan:

A question was raised just before the recess as to whether or not a hearing is mandatory under Section 244 of the Act.

Whether or not a hearing is mandatory, we submit that there — it is contrary to the expressed intent of Congress to permit the use of confidential information in connection with the suspension proceedings.

When Congress intended to authorize the use of confidential information, it had no difficulty in expressing its intent unmistakably as witness Section 235 (c) of the Immigration Nationality Act, which is referred to on pages 37 and 38 of the Government brief, which relates to the question of exercise of discretion on the admission and that is on the exclusion of persons applying for admission and Congress explicitly stated that in such proceedings without any inquiry or without any further inquiry by a special inquiry officer, the Attorney General is authorized to use confidential information and not disclose it to the alien applicant.

On the contrary, as is already been pointed out, Section 244 of the Act which authorizes suspension of deportation specifically requires that Congress be furnished a — with the reasons that suspension of deportation is granted.

The regulation challenge here, however, without differentiating says that whether it is granted or denied — whether it is granted or denied it may be based upon confidential information.

Now, this violates a — the other section of the statute which is — the other section of regulations which we contend specifically are nullified —

Earl Warren:

(Voice Overlap) —

John Caughlan:

— by the use of confidential —

Earl Warren:

Mr. Caughlan, before you get to that.

I don’t quite get that — your point on the reporting to Congress because they don’t’ report to Congress unless it’s planted, unless his suspension is granted.

Now, if it’s — if it’s denied to the applicant on — on confidential information, it would never get — never get to Congress.

So, how — how does that manifest desire on the part of Congress to prevent a confidential information being used?

John Caughlan:

Well, Mr. Chief Justice, the regulation which is here challenged —

Earl Warren:

Well, I thought you were — I’m just talking about the Congress, you’re — you’re talking about the intention of Congress and the fact that they — that they didn’t provide for it or they provide for listing all of the evidence on which it was based.

But it’s only when — when the ruling is favorable to the — to the applicant that they do that.

John Caughlan:

Yes, Mr. Chief Justice, that’s true.

Our position is that Congress did not authorize the use of confidential information and the language of Section 244 (c) which requires a report when it is granted indicates that in such cases, certainly, Congress did not intend that the granting should be based upon confidential information.

That is it didn’t intend the use confidential information in a suspension hearing where suspension is granted because if confidential information is used, Congress isn’t being given the reasons that the suspension is granted.

Earl Warren:

Well, I — I understood you to say — I understood you to say that it made no difference whether a hearing was required or not, your position would be just the same.

Now, let’s assume that there was no hearing provided for by the Attorney General then wouldn’t he be free to act in his discretionary capacity on any information that he might have from any place as he would in the clemency proceeding?

John Caughlan:

That — of course in that situation, I am apart from the question of congressional intent would deprive the alien of any right of appeal which is specifically granted to — to the Board of Immigration Appeals.

The Board of Immigration Appeals on suspension of hearing, he has that specific right to apply to the Board of Immigration Appeals.

Under Section — under the Regulation 6, 8 C.F.R.6.1, he has the right to appeal.

That right is wiped out.

Earl Warren:

Would that be even though the — the Attorney General had not prescribed a procedure for this?

John Caughlan:

If the Attorney General had not prescribed any procedure for appeal at all, that there was no provision whatsoever —

Earl Warren:

In connection with the suspension?

John Caughlan:

In suspension cases.

Earl Warren:

Yes.

John Caughlan:

If this was exercised without any right of — of appeal or any other regulations, we’d be confronted with a different situation.

I would still say that Congress hadn’t authorized the use of — of confidential information.

I don’t believe that that can be found in the Act.

I don’t think Congress intended that confidential information should be used.

Tom C. Clark:

Well, the Attorney General did not have to have a hearing did he?

He could have regulation, but he didn’t require a hearing, did he not?

John Caughlan:

Yes, Your Honor.

Tom C. Clark:

When he lay down regulations then that’s put out the bounds of the hearing that is that you could use — don’t mention the information that he didn’t have to have any hearing at all in due process, the administrative due process, that is whether or not the hearing was within the regulation, could it not?

John Caughlan:

Yes, that — that — Mr. Justice Clark, that would — would be true but we feel while the due process issue as such isn’t raised here, we feel that congressional intent as I’ve just outlined has indicated that the Attorney General wasn’t authorized to use confidential information.

Tom C. Clark:

He doesn’t report to Congress though he denies, does he?

John Caughlan:

No, he does not.

Tom C. Clark:

Only the ones he grants?

John Caughlan:

But his regulation of course, which is a different situation indifferently, permits the use of confidential information whether he’s granting or denying the regulation.

Tom C. Clark:

Well, he had possibly knew confidential information on granting whether he (Inaudible)

John Caughlan:

That’s a question that frankly puzzles me when he would use it.

It’s in the regulations and I could conceive of a situation in which perhaps he would want to grant some person, who on the record would appear to be not a very good — not a very likely prospect for some —

Tom C. Clark:

Like a farmer or something like that?

John Caughlan:

Maybe something like that, that’s a possibility.

Tom C. Clark:

Be about the only change.

John Caughlan:

We’d like to reserve the balance of our time.

Earl Warren:

Yes, it’s all right.

Mr. Lindsay.

John V. Lindsay:

Mr. Chief Justice, Your Honors.

I should like at the outset to correct if I may one or two impressions that may have been made by argument of counsel.

First of all, there was a reference by Mr. Maslow to the type of confidential information that is used pursuant to Regulation 244.3, the regulation in question in this case.

And the first — first reference that he made was the testimony by one of the Immigration Service investigators to the effect that “some of these confidential reports were merely information we received off the street.”

I wish that Mr. Maslow had seen fit to read the rest of that paragraph which goes as follows —

Earl Warren:

Where is it, Mr. Lindsay?

John V. Lindsay:

He’s referring — this refers at page 34 of the amicus’ brief which was — which Mr. Maslow referred to orally in argument prior to the recess and he was describing of the type of confidential information that —

Earl Warren:

34 of the brief?

John V. Lindsay:

Page — I beg your pardon.

At footnote — I believe it’s Footnote 34 which appears that page 12 of the brief filed by the American Jewish Congress.

(Inaudible)

Earl Warren:

There’s nothing there.

John V. Lindsay:

And you will note that the same statement appears here that — at the top of page 12, a service investigator, one of whose functions is to assist the special inquiry officer in preparing a case for hearing, describe such confidential material as “merely information we received off the street.”

The actual quotation has another sentence added to it which reads as follows, “In the matter of character investigation, we wanted nothing along those lines.”

Earl Warren:

Where do you find that?

John V. Lindsay:

That is not — that is not cited in any of the Government papers before the Court.

Earl Warren:

It’s in — it’s in the record?

John V. Lindsay:

It is not in the record, but I’ll be glad to submit — I’ll be glad to submit a reply brief to the amicus’ brief which will clarify this particular point, if the Chief Justice wishes.

Stanley Reed:

Well, it’s — it would all be in hearings, would it not?

John V. Lindsay:

They would be contained in the hearings and that’s where —

Stanley Reed:

And if we look at —

John V. Lindsay:

— and — and that’s where it’s found.

Stanley Reed:

— Footnote 34, page 18, we would then see what you’re reading.

John V. Lindsay:

That is correct.

Hugo L. Black:

I don’t quite understand the limitation you put on it unless you would read — can you read two sentences (Voice Overlap) —

John V. Lindsay:

I’ll read the two sentences together as they appear in the — in the hearings.

Hugo L. Black:

Yes.

John V. Lindsay:

Here’s — here’s how it actually appears in the hearings, “Some of these confidential reports were merely information we received off the street.

In the matter of character investigation, we wanted nothing along those lines that was understood.”

Hugo L. Black:

Along what line?

John V. Lindsay:

Received — along the lines of merely information received off the street.

Earl Warren:

Well, what is there in the record here to show what — what the confidential information was against this man?

John V. Lindsay:

Well, my — the — the point that I was — that I was making at the outset did not apply to the — the instant case at hand, Mr. Chief Justice.

Earl Warren:

Well, how do we know?

John V. Lindsay:

What I was referring to was —

Earl Warren:

How do we know what the confidential information was that they acted on it?

John V. Lindsay:

We do not know what the confidential —

Earl Warren:

Well, how do we know —

John V. Lindsay:

— in the instant case.

Earl Warren:

How do we know that it wasn’t the type that they took from the street?

John V. Lindsay:

Because the use of the confidential information in — in this — as prescribed by the Regulation 244.3 is limited to the confidences respected only in cases where it’s necessary to protect the public interest, safety or security.

And I take it that what was being said here in the testimony that was referred to by Mr. Maslow’s argument, I take it that what was really being said was that we don’t consider that type of information, the type of information that is — that is included within the scope of this regulation.

Earl Warren:

Well, suppose someone said on the street that he was a dangerous radical and he was trying to destroy the Government and so forth, would you mean that they wouldn’t use that information?

John V. Lindsay:

That is what I — that is the — the result that I would reach from reading this — this excerpt which was partially quoted by Mr. Maslow.

Earl Warren:

What kind of information would you say they did use under that — your interpretation?

John V. Lindsay:

Well, I do — I do not know.

I would imagine that in most cases the type of information which would not be disclosed would be information of the security nature.

In most cases —

Earl Warren:

No (Voice Overlap) —

John V. Lindsay:

— I would think it would be classified.

Earl Warren:

— we’re talking about the kind of information that they used but which they got off the street.

Now, what kind of information would it be that they got off the street that they would use against the man, the confidential way.

John V. Lindsay:

I would not think that they would use it, Mr. Chief Justice.

Earl Warren:

Well, he said he did, didn’t he?

John V. Lindsay:

No.

Earl Warren:

What did he say?

John V. Lindsay:

I was — I was quoting from the testimony of the — the Service —

Earl Warren:

Well, read it again —

John V. Lindsay:

— before the Hill —

Earl Warren:

— please, I’d like —

John V. Lindsay:

— in which he said this, in which the chief of investigation said this, “Some of these confidential reports were merely information we received off the street.

In the matter of character investigation, we wanted nothing along those lines that was understood.”

In other words, if it came in — in a — from a security agency, marked confidential and it contained information received off the street, it would not be used.

Earl Warren:

Oh, I see what you mean.

Hugo L. Black:

Does he — does he state right before the sentence you read what he means by confidential information, they didn’t show?

John V. Lindsay:

He — he does not.

Earl Warren:

I see.

John V. Lindsay:

Now, secondly —

Tom C. Clark:

What’s the — did they ask the Board (Inaudible)

John V. Lindsay:

In the usual case.

Tom C. Clark:

(Inaudible)

John V. Lindsay:

In the usual case.

Tom C. Clark:

(Inaudible)

John V. Lindsay:

That’s correct or — or from the Central Intelligence Agency.

Earl Warren:

Well, I understood counsel to say that the FBI report was clear in this case.

John V. Lindsay:

Well, there was — apparently in this case there was an FBI report that was introduced that did not contain security information or did not contain information which was deemed by the special inquiry officer to forward in the scope of the regulation.In other words, necessary to keep confidential.

Earl Warren:

Well, you mean that they would — they would file one report in the case showing that it was clear, the record was clear and then file another one in the case that — showing that he was not clear but the defendant have — would have no access to that or not even know that it was filed.

Is that —

John V. Lindsay:

That’s correct.

Earl Warren:

Is that the question?

John V. Lindsay:

If the — if the report — if the report that had been filed — if the information which the special inquiry — inquiry officer had was of the type that could not be revealed, it would not be — it would not be revealed to the alien.

That’s correct.

Earl Warren:

And they would — your reporting agency would split it up in that way, might they?

John V. Lindsay:

They might.

Earl Warren:

One showing that —

John V. Lindsay:

They might.

Earl Warren:

— that he — he was clear on the record —

John V. Lindsay:

They might.

Earl Warren:

— and then another undercover one that would show that he was not clear.

John V. Lindsay:

That is correct.

Earl Warren:

And no information to the — to the deportee.

John V. Lindsay:

I should like to — to point out, however, that — that the figures for last year of the cases appealed to the Board of Immigration Appeals, that there were 4000 deportation cases approximately.

Now, this is a rough estimate, out of a total of some 6000 cases that were considered by the Board.

Out of those cases, only 410% involves suspension.

Now, it is true that in approximately four-fifths of the so-called deportation cases that are heard, deportability is not contested.

The question is whether or not to give the alien voluntary departure which is quite different from suspension of deportation or suspension.

There’s a good practical reason for not splitting up the hearing in this particular case.

There were — there was one hearing, it was closed and then reopened again to consider the question of suspension of deportation.

John V. Lindsay:

But in most cases, there’s no question about deportability and in most of the cases in which there’s no question about deportability, the issue is whether or not the aliens to be given voluntary departure, that is to say allowed to leave the country freely without being deported in order that he will not be barred if he tries to reenter at a later date because he has been deported in the past.

Suspension does not require the alien to leave the country at all.

His status is adjusted and he is allowed to stay here as a permanent resident.

Now, I should also like to point out and this is mentioned in the Government’s brief in a footnote that of the suspension of deportation cases, there’s 10% of the number of total of deportation cases that confidential information, the Government is advised by the Board of Immigration Appeals from their records, is used in less than 5%.

Now, I should like to if I may to proceed to —

Earl Warren:

Mr. Lindsay, before you proceed, before you leave this subject, you commented on the testimony of one of these service investigators but you didn’t comment on the evidence of the others.

Would you do that please and give us your version of that and I’m referring to 12 — page 12 of this amicus brief that you pointed to.

The first one said that it was just merely information we received off the street and then it goes on.

The next one says described it as “what might be termed as hearsay evidence which could not be gotten into the record.”

And then there’s some following that, how do you —

John V. Lindsay:

That is true.

Earl Warren:

How do you explain that?

John V. Lindsay:

I explain it this way that on the question of eligibility for suspension of deportation, it is true that the normal rules of evidence apply in these — in these hearings.

If it’s a matter of hearsay, it will normally be excluded, there is confrontation.

All of the usual historical safeguards against arbitrary action are taken in the deportation proceedings.

When it — and — and — I beg your pardon, they certainly are taking in deportation proceedings and the same is true in this discretionary relief of suspension of deportation.

But when it comes to the operation of the discretion, bear in mind that this discretionary power and this is the Government’s position is so broad and so unique and so much of a blank check that the Congress has provided that it does not even become operative until the alien can show that he is eligible for this relief.

The reason — and when the discretion does become operative, then it is the Government’s position that the — it is entirely within the legislative purpose that the Attorney General can take into consideration in making his decision any information that he deems appropriate and necessary providing he stays within the limits of the applicable regulations.

Now, this might include hearsay evidence.

It might include evidence that you couldn’t get in, in a court of law and that is the type of information I believe that you’re referring to, Mr. Chief Justice, on page 12.

Earl Warren:

And the other one —

John V. Lindsay:

That’s —

Earl Warren:

— says — says such things perhaps as income tax reports or maybe a witness who didn’t want to be disclosed.

John V. Lindsay:

An informant?

Earl Warren:

How do you — do you think that he has — he’s entitled to exclude that?

John V. Lindsay:

I think that the Attorney General in — in exercising this discretionary relief is entitled to use that kind of information if he thinks it’s relevant and necessary to use and necessary in the public interest to keep it confidential.

Earl Warren:

Yes.

John V. Lindsay:

Now, I don’t say — I don’t go — I go so far as to say that I think that the statute, that the Congress allows that same wide unbridled unfeathered discretion to operate in the actual case of qualification for a suspension of deportation.

But contrary to that, the Attorney General has chosen to prescribe for himself regulations which require the use of record information in determining the question of eligibility before the discretion becomes operative.

Earl Warren:

Well, I think the thing that’s bothering me is this — is this one hearing that you have on the deportation and on the suspension.

Earl Warren:

Now, if the hearing officer can take into consideration not only the — the evidence which is in the record but also any kind of hearsay testimony or — or information he gets off the street or anything of that kind.

How can he differentiate between the suspension proceeding and the — the deportation proceeding when he comes to make his determination as to whether a man should be deported on the record?

John V. Lindsay:

Well, I’ll — I’ll address myself to that.

In the relatively few cases in which deportability is in issue, the regulations — the statute requires and the regulations conformed to the statue that every safeguard or procedural due process should be accorded to the alien and I’ll refer to those.

Secondly, the statute also provides and the regulation is consistent that the decision of the special inquiry officer, which is appealable to the Board of Immigration Appeals, shall be based upon reasonable substantial and probative evidence which is on the record that the — the alien has a right to take the decision which — which is based only on the record to the Board of Immigration Appeals.

They take a look at it to see whether or not the record evidence was substantial, probative and — and reasonable then he can go to court and that’s what happened in this case.

This alien contested the issue of deportability.

He went to the special inquiry officer.

He went to the Board of Immigration Appeals and then he went to court.

And he lost in all three places.

Earl Warren:

But my point is this, in the deportation hearing, perhaps there is a conflict, direct conflict of — of testimony.

The Government contends one thing, the — the subject contends another and in that case I thought the hearing officer was suppose to give a fair and the impartial trial on that evidence.

But under these regulations, you permit him to go out on the street and get any kind of information he wants.

Any kind of hearsay that he wants, look into — to the income tax reports and take the testimony of witnesses who don’t’ want to appear and let him use that in the proceeding to see whether he’ll also recommend a suspension or not.

How can he separate the two?

John V. Lindsay:

Well, he’s — he’s required to separate the two —

Earl Warren:

But can a man —

John V. Lindsay:

— Mr. Chief Justice.

Earl Warren:

— humanly do it?

John V. Lindsay:

Because — because the alien — he is required to base his decision and make his findings on — on information only and testimony only as to which the alien has access, may cross-examine, is given notice of and all the rest and it’s on the record.

If the record doesn’t support the finding of the special inquiry officer, without reference to any of this other material which may possibly at this point come in, in most cases it would come in after the issue of the deportability is decided and then you go into this other end of it.

But if it should and it’s permissible that it might, if it should, the Board of Immigration Appeals is in a position to reverse it and if the Board of Immigration Appeals doesn’t do it, the Court can do it.

Earl Warren:

Well, suppose a judge trying a case was to have one hearing in court and on the record there was a conflict.

And then he went outside and — and had subside hearings, took into consideration the very things that are being taken into consideration here then made his decision, do you think that would stand?

John V. Lindsay:

Well, I think that it happens that a judge in the course of a trial that counsel will try to get in the evidence.

A material which is not admissible and yet — and the judge we’ll exclude it, let’s assume it’s a non-jury trial.

Earl Warren:

Yes (Voice Overlap) —

John V. Lindsay:

The judge will exclude it.

Earl Warren:

Do you think he has a right then to go out and say, “Well, I excluded it because the record’s got to be clear, but I’ll — I’ll go in the back room and I’ll — I’ll hear what it is and now use it in the case.”

Do you think he can do that?

John V. Lindsay:

He — he cannot use it in the case.

Earl Warren:

Well, that — in that (Voice Overlap) —

John V. Lindsay:

And he can’t — he cannot —

Sherman Minton:

(Voice Overlap) —

John V. Lindsay:

— use in this case (Voice Overlap) —

Sherman Minton:

— on the question of probation but a judge could do that —

John V. Lindsay:

On — if —

Sherman Minton:

— on the question of probation and what sentence he’d give —

John V. Lindsay:

When the — when the trial —

Sherman Minton:

— he could use hearsay or anything else that he wanted to.

John V. Lindsay:

When the — the trial is over, let’s assume it’s a criminal trial and the man has been convicted, then of course the judge will consider any information that is necessary in order to — to guide him in making a judgment in an individualistic manner as to whether suspension should be granted in probation.

Hugo L. Black:

About five words you use that and it’s pretty important when the trial is over.

John V. Lindsay:

Well, I — I’ll concede that point, but I — but I will not concede that — that in a hearing procedure on a question of eligibility, and we’re not concerned with deportability, there’s been no challenge to that here, not at all.

On the question of eligibility, the Attorney General isn’t even required to hold a hearing — a hearing and yet he does.

Now, I — I cannot see that there’s been a denial of procedural due process that has any relationship to the instant case because there was a deportation proceeding which preceded this and in this case the deportation proceeding did precede the proceeding having to do with suspension at which the alien was found deportable, found by the BIA, the Board of Immigration Appeals to be deported and found by the Court that the evidence was substantial, probative and reasonable on the record.

Felix Frankfurter:

This problem would never arrive, Mr. Lindsay, except where he found that he was deportable.

The suspension problem doesn’t arrive except in after determination of deportability, Mr. Lindsay, does it not?

John V. Lindsay:

True and — and —

Felix Frankfurter:

I’m not saying therefore — therefore —

John V. Lindsay:

Yes — yes —

Felix Frankfurter:

— everything —

John V. Lindsay:

— of course, it doesn’t.

Felix Frankfurter:

— that you’ve opened up, but I do not see the force of your point he’d been found deportable.

The argument is that having been found being deportable, Congress didn’t’ say therefore he should be deported.

Congress deposited some relieving power in the power of the Attorney General.

Congress didn’t let the Attorney General to his own undisclosed, uncontested determination of whether you should have this right of litigation or not.

It doesn’t follow because Congress could have passed a statute which left this in the unreviewable discretion of the Attorney General.

It doesn’t follow that even he himself might have that power, that if he does formulate a scheme, a procedure for determining something that that procedure must have some rational relation to the end to be determined.

John V. Lindsay:

Well, now, let me address myself to that point.

First of all, I think it’s important before we go any further on the — on the question of what has the Attorney General done with respect to prescribing a hearing in this case to find out exactly what the nature of his power is that we’re dealing with.

John V. Lindsay:

It is the Government’s contention that suspension of deportation is an act of grace, that wherein otherwise fully deportable, admittedly deportable and mandatorily deportable alien is concerned that the Congress has vested in the Attorney General an unusually wide and somewhat unique discretionary power to withhold deportation.

William O. Douglas:

Would — would a hearing be necessary?

John V. Lindsay:

In — in a suspension of deportation case?

It’s not required by the statute.

William O. Douglas:

Well, that’s — that’s a question I wanted to raise —

John V. Lindsay:

Well —

William O. Douglas:

— under — if you turn to page 56 of your brief, 20 — 244 (a) (5), ”He may suspend in his discretion in case of an alien who,” and then drop down into (5) and you’ll find that says, “Who proves that during all of such period he has been.”

It apparently implies an opportunity to prove which makes it possible the argument that — that he’s entitled to a rehearing.

I’m not sure about that.

John V. Lindsay:

Well, I’d — I’d like to answer that this — this way.

As I read Section 244, the suspension provision, it provides as follows that as herein after prescribed in this Section, “The Attorney General may, in his discretion, suspend deportation et cetera of an alien who is deportable for various reasons.”

And then it goes on and it gives the list of qualifications which are very stringent qualifications that must be met before this discretionary power becomes operative.

In other words, if you turn to (c), subparagraph (c) on the following page, “Upon application by any alien who is found by the Attorney General to meet the requirements of (4) or (5) of subsection (a), the Attorney General may, in his discretion, suspend deportation.”

In other words, Congress had a purpose to deport deportable aliens and it very carefully withdrew all discretion from the Attorney General when it came to that.

Section 241, the deportation section says that the Attorney General must deport and then list section after section of the most carefully spelled out provisions hitting aliens who the Congress has decided, whether or not we agree with the substantive grounds and as — is not any of my business or the Court’s business at this point, must be deported and it then goes on after saying in Section 241 that deportation must be affected of these aliens, it prescribes in Section 242 of the Act very careful procedures to effect this deportation.

Now, I’m referring to page 15 of the Government’s brief in Footnote 10.

Note what the statute provides, “That the special inquiry officer shall conduct proceedings that determination of deportability in any case shall be made only upon a record at which the — the alien shall have a reasonable opportunity to be present.”

Turning the page, “The Attorney General may prescribe regulations which shall include requirements that the alien shall be given notice of the charges, shall have the privilege of being represented, reasonable opportunity to examine the evidence against him, to present evidence on his own behalf, cross-examine and that this procedure so prescribed should be the solemn exclusive procedure.”

Now, this is deportation.

When it comes to suspension, the only thing that the Congress saw fit to say was that the Attorney General in four words “may, in his discretion,” suspend deportation.

The alien in order to be even qualified for this extraordinary relief is required to show that he meets these most stringent requirements.

Now, there may be lots of other aliens who have done — committed no worst substantive offense perhaps less, who have got to leave the country but they can’t meet these requirements.

My point is this then that Congress, knowing that it was giving the Attorney General a blank check and that it had to give the Attorney General a blank check in order to make this power useful or effective.

It — it’s no good unless it’s as broad as it can possibly be for this reason, but you can’t categorize cases where the Attorney General should grant the armor of clemency anymore than you can categorize the cases in which the Congress has seen fit to enact special bills.

Felix Frankfurter:

No, you can’t do that but you can determine the procedure by which he can determine it and which enables you to meet it.

You’re going to go in due course to the question whether — although Congress left him free, he determined to setup the procedures.

John V. Lindsay:

Well, I would agree, Mr. Justice Frankfurter, that the — that the Court can take a look at the prescribed — the prescribed procedure that the Attorney General has — has promulgated.

Felix Frankfurter:

And that he’s bound by it.

John V. Lindsay:

And I will agree he’s bound by it.

Accardi tells, it said he’s bound by it.

John V. Lindsay:

And Accardi says that the alien must be given whatever benefits the regulations in fact — in fact provide.

Felix Frankfurter:

We’re driven back to the regulations.

John V. Lindsay:

We’re driven back to the regulations.

Now, let’s —

Earl Warren:

Well, Mr. Lindsay, may I ask you — may I ask you this, under 244 (a) that’s the — that’s the Section giving him the — the Attorney General the discretion.

Let us assume that the deportee prove that he had been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act or the assumption of a status constituting a ground for deportation and proves that during all such period he has been and is a person of good moral character.

Do you believe that those things were shown that there was still an unlimited discretion in the Attorney General?

John V. Lindsay:

I do and let me quote to you just one sentence out of the Senate Committee report that accompanied this bill, “Technical compliance by the alien with the formal eligibility requirements does not necessitate a conclusion that he will be granted suspension of deportation.”

And there are cases which — and that there are recent cases as a matter of fact in the District — the Court of Appeals, District of Columbia.

One that is particularly note worthy where the special inquiry also did find that the alien met the minimum requirements of eligibility and he still — the special inquiry officer still denied suspension of deportation on the question of hardship.

He said this meets the minimum requirement but he’s got no family here, admittedly he claims that he will not be able to work if he gets deported, he doesn’t know — he can’t speak the language and all the rest of it but still in the exercise of discretion, I deny suspension.

I am referring to the Melachrinos case in which the Court of Appeals for the district said this, he further found that while the appellant met the minimum statutory requirements so far as eligibility for suspension of deportation was concerned, suspension of deportation was not warranted and so forth.

Now —

Earl Warren:

But that’s the minimum requirements, suppose he proved that he’d been here the 10 years and had — had — during all of such time had been a person of good moral character and that it would result in exceptional and extremely unusual hardship to him or to his spouse, parent or child who is a citizen, could he still — would he still then have unlimited discretion you think?

John V. Lindsay:

Well, I say — I think unlimited of course is a — is a broad word.

I have the —

Earl Warren:

Well, I thought you —

John V. Lindsay:

— the Government —

Earl Warren:

— used it in that sense?

John V. Lindsay:

Well, I — I think it’s almost unlimited.

I think it comes — that — that’s why I’m trying to define what the nature of this beast is that we’ve — that we’ve got in front of us.

The Government’s view of it is, is that it comes close to being as broad as the power of the President, Chief Executive in granting a pardon.

Now, obviously —

Earl Warren:

Which is unlimited?

John V. Lindsay:

Which is unlimited.

Earl Warren:

Yes.

John V. Lindsay:

Now, obviously, the pardoning power is one which is an ancient right of the crown which is deeply embedded in our Constitution and it might be presumptuous to say that this particular power is as broad as that.

I’d like to refer to this power as being as broad as the power of the Congress in a sense to enact a private bill.

You’ve got in a way the same considerations here and after all the Congress was sick to death of enacting private bills and it gave this broad power to the Attorney General to take an alien who’s got to leave, the Congress has said he’s got to leave and arbitrarily say, “No, you can stay because it’s going to be hardship on you or your wife.”

The same thing is done by the Congress when it enacts a private bill and this is suggestive to me of a political power, not adjudicated power.

John V. Lindsay:

The very fact that is made reviewable by the Congress, the suspension, the granting of this — of this clemency is made reviewable by the Congress, to me is suggestive of a political power.

And that is why I say that this particular type of discretion, although it is limited to the extent that if it affirmatively appears that its exercise has been so arbitrary or capricious that nobody can swallow it, that it is just short of that and that it is almost — or it’s analogous to the action of the Congress in enacting a private bill and the action of the President or the Governor of a State in commuting a sentence or granting a pardon —

Felix Frankfurter:

But political powers may be give him juridical procedure.Congress may do lots of things without sending it over to the courts or requiring a court procedure but from time to time does a conference.

John V. Lindsay:

Well, that’s — I recall the case of Norwegian Nitrogen Company in Volume 288.

And there the — as I recall it, this Court said what in substance the Congress did was to transfer a legislative process from itself to the President and the President was required to accept and receive the advice of the Tariff Commission, if you recall.

And the Tariff Commission was required to hold hearings on the question of rates, tariff rates.

And the question in that case was whether or not the Tariff Commission as a result of these hearings could take any consideration a lot of information which was never disclosed to complaining parties to the tariff.

And as a result of that, it would advice the President as to what action should be taken.

Felix Frankfurter:

As against that, I put the La Abra case in which Congress could have settled the matter by legislation or through political channel or diplomatic channels but the perfect view is through the court channels.

So, we don’t get totally involved by these abstract categories —

John V. Lindsay:

Well —

Felix Frankfurter:

— and I return to my desire to enlightenment from you as to whether or not a regulation by which the Attorney General found himself, and I say found himself by official reason.

What’s the implication through that?

John V. Lindsay:

All right, let’s talk about that.

Let me — I think that it’s all but conceded.

I take it its conceded on oral argument and I know it’s conceded by — by the brief of amicus and from the question presented on page 2 of the brief of the petitioner.

It’s conceded that the Attorney General is not required to hold a hearing.

So, he has prescribed that on the issue of eligibility.

In other words, these minimum requirements that have to be met and bear in mind when I refer to those minimum requirements and I’ll refer to this a little bit more fully in a moment, I mean that the Congress intended that this power was to be used sparingly.

On the question of eligibility, the Attorney General has prescribed a hearing.

At the same time —

Felix Frankfurter:

(Voice Overlap) $4020?

John V. Lindsay:

Pardon?

Felix Frankfurter:

For $4020 you conceive this act of grace?(Voice Overlap) —

John V. Lindsay:

That it — my information from the Board of Immigration Appeals is that approximately 10% of the uncontested deportability cases involve suspension.

The rest of the — the bulk of them is the question of voluntary departure which is quite a different thing.

Now, that’s — those figures are very rough and they are referred to in the footnote of the Government’s — in a footnote —

Sherman Minton:

Around numbers —

John V. Lindsay:

— of the Government’s brief.

Sherman Minton:

— how many of them did this — suspended frequently?

John V. Lindsay:

How many get suspended frequently?

Sherman Minton:

Yes, how many of this is frequently — with reference to suspension?

John V. Lindsay:

Well, I would — I suppose that —

Sherman Minton:

Suppose in the hearings.

John V. Lindsay:

I wouldn’t know how many suspension cases that came before the Board of Immigration Appeals as suspension was upheld.

I — I couldn’t tell you that.

I have to supply those figures.

I’ll be glad to do that, Mr. Justice Minton, if you’d like to.

But I — but I’d like to pursue this thought about the hearing for just a minute more.

I — I submit that you are required to log at all four corners of the regulations.

Now, the regulation providing for — the use of confidential information in the decision making process of the Attorney General was promulgated in this instance at the same that the other regulations were submitted.

So, you’re — you’re not within Accardi, you’re outside of Accardi.

And — and I — I do not understand the logic of saying that where the Attorney General has to give no bread that a half a loaf is worse than nothing.

I can’t understand that in — in this type of clemency proceedings, after all what he has done has prescribed a hearing which is in aid of his decision and it seems to me that the alien fares no better, if anything, he fares worst if the Attorney General turns around tomorrow and abolishes the hearing, wipes it out completely and says that the suspension of deportation decision shall be based on submission of papers to the Attorney General and he’ll make his decision accordingly.

I don’t think that the alien is in a better position.

I think he’s in the worst position because he has not given the right to present his side of the story.

Well, I should like to —

Earl Warren:

Does he get — does he get a right to present his side of the story on the confidential information?

John V. Lindsay:

No, he does not.

Earl Warren:

That is the thing they act on.

John V. Lindsay:

No he — no, he does not.

Earl Warren:

Did it act on — apparently on the — on what’s in the record, they act on the confidential (Voice Overlap) —

John V. Lindsay:

Where it’s in the — where it’s in the interest of the national government to do it, they do.

And — and a judge — a judge does the same thing when he grant suspension of sentence.

And — and the President does the same thing when he grants a pardon and that is exactly what we’ve got here.

And — and I —

Earl Warren:

Well, Mr. Lindsay, do you think there’s any distinction between the situation where the examiner is permitted to take into consideration this confidential information on the one hand and where perhaps the Attorney General, after he had reviewed all of the proceedings, might himself take — take confidential information into consideration to determine whether he would overrule his board or not?

If — if there’s to be a hearing that is a fair hearing as — as this sense, it must be a fair hearing, do you not think that the hearing officer should be required to give a hearing based upon evidence and then make his findings and report it through the — through the Board of Appeals and eventually up to the Attorney General with — with what discretionary power he may — may have to act on.

Isn’t it one thing for him to act and that when another thing for this man, who is presumably deciding a thing on a record, to take into consideration confidential information of a hearsay nature concerning which the — the deportee knows absolutely nothing?

John V. Lindsay:

Well, I — I think I have to say this that if the hearing officer makes his decision on the basis of confidential information, he has to say so.

John V. Lindsay:

And he does say so.

And —

Earl Warren:

He says so, but he doesn’t tell — he doesn’t tell what it is.

John V. Lindsay:

No, he doesn’t, but he goes —

Earl Warren:

(Voice Overlap) —

John V. Lindsay:

— to the Board of Immigration Appeals which — which knows what it is.

Earl Warren:

And the man therefore doesn’t have an opportunity to — to prove under 24 — 244 (a) (5) that during all of such times he has been and he’s a person of good moral character.

No matter of what — what proof he might make, the confidential information can just wipe it out and — but he has no opportunity to — to answer it.

Isn’t that true?

John V. Lindsay:

Well, I — I don’t’ agree with you.

The Section 242.53, conduct of hearings, for example —

Earl Warren:

No, we’ll take 244 (a) (5).

That says that the discretion should be exercised when the man proves he has been in the country 10 years and that during all of that time he has been a person of good moral character.

Now, he — he goes into — into the hearing and he proves that to — to — apparently to the satisfaction of the — of the hearing officer, of the record, nothing is said about it and then when the order comes out it says on confidential information we deny it.

How — how can a man prove anything in a — in a hearing under those circumstances?

John V. Lindsay:

He proves everything that he is — that he is required to prove to show that he is eligible for this extraordinary relief.

Earl Warren:

But how can a man prove anything concerning charges he doesn’t know anything about?

John V. Lindsay:

This is not — I — I submit, Mr. Chief Justice, this is not a proceeding where there are charges.

Doesn’t this (Voice Overlap) —

John V. Lindsay:

Not adversary.

Earl Warren:

Unfortunately — unfortunately there are.

If the charges were there maybe he could prove it, but — but he can’t prove anything to the satisfaction of the hearing officer.

The hearing officer can take any kind of — of hearsay and the consideration that he desires, it seems to me.

John V. Lindsay:

Well, I — I —

Wouldn’t these all get back, Mr. Lindsay, to the question as to whether Congress has authorized the Attorney General to give no hearing or any kind of a hearing that he wants to give.

And your point is, I take it, that Congress has left it to his discretion.

He didn’t’ have to set up any kind of a hearing, having set up the kind of a hearing that he has set up, the — the only questions is the — the administrative due process has been followed and not procedural due process, isn’t that (Voice Overlap) —

John V. Lindsay:

That’s correct in following the regulations.

In following the regulations.

John V. Lindsay:

If the — if the — if under Accardi, the alien —

(Voice Overlap) —

John V. Lindsay:

— has in fact —

— to see the benefit the statute provides.

John V. Lindsay:

That’s correct.

I —

William O. Douglas:

Doesn’t the statute provide for a hearing and it says that the alien who proves isn’t — isn’t that implicit — a hearing implicit in — in the word prove?

John V. Lindsay:

Well, I — I don’t — I wouldn’t go that far.

I would —

Sherman Minton:

He did not prove by affidavit.

John V. Lindsay:

Pardon?

Tom C. Clark:

(Voice Overlap) —

Sherman Minton:

He did not prove by affidavit (Voice Overlap) —

John V. Lindsay:

He can — he can prove it by great many methods and — but I think that —

Tom C. Clark:

That’s all that prove his eligibility.

John V. Lindsay:

But that’s — it strictly goes to the question of eligibility and — and Mr. Justice Harlan put his finger on it when he said, “After all what was Congress trying to do?”

Congress was not trying to — to prevent or to give relief to deportable aliens except under the most unusual circumstances and even anyone could take a look at it.

Felix Frankfurter:

Well, look at — really I must say, we weaken your argument by insisting that this applies to deportable aliens, of course that’s what it applies to, that’s what they’re talking about.

So, what’s the point of that observation?

John V. Lindsay:

Well, let me answer that this way.

Congress — Congress in the judgment of the Government thought that this power should be exercised only in the most unusual case.

It should be exercised sparingly.

In the first place, it discriminates against other aliens who are being deported all the time for reasons which Congress said —

Felix Frankfurter:

Do you agree the Attorney General act according to some rational standard and so he wouldn’t be discriminated?

Presumably, in allowing this — this act of grace, I agree with your characterization, in allowing this act of grace presumably not to — not to kiss it by favor but kiss it by reason, if I’m not contradicting myself.

John V. Lindsay:

I agree with you that this is an individualistic power just as —

Felix Frankfurter:

I’m suggesting that it isn’t individualistic so far as standard goes.

The Attorney General, no matter who he is, can’t say I like this feller and I don’t like that feller.

There must be some underlying standards.

John V. Lindsay:

Well, that gets back to the point I made to the Chief Justice, which is I agree there is a limit on the exercise of this power.

And that is that if it appears affirmatively to be so capricious, so that the Attorney General says that — that he will grant suspension for this man because he’s got red hair and not for this man because he doesn’t —

Felix Frankfurter:

Well, then (Voice Overlap) —

John V. Lindsay:

— of course that is reviewable.

Felix Frankfurter:

— question arises whether — and the question arises whether in construing a regulation by him, I take it that’s what Justice Harlan means by administrative proceedings.

In construing the regulation by him which he saw fit to formulate, to set up isn’t conflict — asking on confidential information.

Doesn’t that have such likely a rule that’s caprice in conduct and what you know to be the variant and capricious nature of confidential information?

That isn’t to be presumed that it’s not to be by that method of caprice.

John V. Lindsay:

I — I don’t agree with you, Mr. Justice Frankfurter, but —

Felix Frankfurter:

But I’m not (Voice Overlap) —

John V. Lindsay:

— any — well, it maybe — it maybe a statement but I — but I should still like to comment upon it —

Felix Frankfurter:

I’m waiting for that.

John V. Lindsay:

— and say this that the same applies — the same applies when a judge exercises the power of suspension of sentence.

Felix Frankfurter:

But when a judge exercises the power of suspension, except when the standard — when the specific procedure is formulated, it is left to his individual private secret talk in — in his chambers with or without anybody.

John V. Lindsay:

Well —

Felix Frankfurter:

But the point is when you do have probation status or parole status such as maybe suggested by the Madison Law Institute in its proposed code, then you have to construe those standards and that’s what the Attorney General is telling (Voice Overlap) —

John V. Lindsay:

And — and under these circumstances, I cannot see how it can be said that a regulation which provides for the use of this information in a clemency proceeding is unreasonable.

Felix Frankfurter:

Well, it may (Voice Overlap) —

John V. Lindsay:

When it’s in —

Felix Frankfurter:

It may undermine the scheme that he’s setup.

Earl Warren:

Well, Mr. Lindsay, you — you say that there are some limits to the discretion of the Attorney General and that he could not say, “I won’t let — I won’t let a man stay here because his red headed and I don’t like that.

I — I won’t let this other man stay because he’s black headed and I don’t like — I don’t like that.”

You say that — that he couldn’t do that.

Now, how would anybody know that that’s what he based his decision on if all he says is I did it on confidential information?

John V. Lindsay:

Now, I’ll get back to the concession that is made by the petitioner in this case which is that the Attorney General is not required to hold any type of hearing at all.

And that when he sets up a procedure which aids him in finding out whether the man can meet the test of qualification, eligibility so that the discretion becomes operative, then he’s met all the requirements, one of the statute and two of procedural due process and of course there’s no constitutional question here raised anyway.

Earl Warren:

Well, I thought you put some limit on his discretion.

It was the reason as I am —

John V. Lindsay:

I — I would —

Earl Warren:

— that I don’t see how you could determine whether he had exceeded that discretion or not if you couldn’t show what the confidential information he acted on.

That’s — that’s my point.

John V. Lindsay:

I would agree — I would agree that if it affirmatively appears that confidential information has been used and it affirmatively increases — it is so arbitrary and capricious that it cannot — that — that no right-minded man could possibly agree with it, the Court would have the right to take a look at the exercise of that discretion —

Earl Warren:

Well, how would you —

John V. Lindsay:

— that’s a very rare case.

Earl Warren:

How would you ever know, Mr. Lindsay, if all they ever said was we do this on confidential information which we refuse to reveal, how would you ever determine that point?

John V. Lindsay:

Because you’re not determining a question of eligibility for this relief.

And that’s — and that’s what we come down to.

I’d like to suggest to you that when you back away from the proposition that Congress gave absolute power to the Attorney General, you’re getting into dangerous quagmire.

John V. Lindsay:

Well, I think you do and that’s why I said that — that I do think that — but I do think that the cases — I think I’ve got to concede this much that if it does appear and this is what a Second Circuit decisions as you will note in the Government’s brief will bear out that if it affirmatively appears that the exercise of the discretion which is this broad is entirely capricious why then it might be reviewable by the courts.

Felix Frankfurter:

May I put to you a hypothetical case (Inaudible) I think.

Suppose somebody was capable — suppose somebody on information and belief is ready to prove that the instance in confidential information and this fellow (Inaudible) says that it is a very vigorous and belligerent and it would free the disturbing (Inaudible) impression of that in one way or the other, at the last presidential election against the President of the United States.

Suppose you’re ready to prove that, would you say it can be allowed and that’s why the Attorney General exercises discretion the way he did, would you think that result from the inquiry?

John V. Lindsay:

Well, I would not think that that type of — of thing would be within the limitations of Section 22 — 244.3.

Felix Frankfurter:

You mean (Voice Overlap) —

John V. Lindsay:

It’s not in the public interest, safety or security to keep that type of information confidential.

Felix Frankfurter:

Well, he — he could then (Voice Overlap) —

John V. Lindsay:

I say that he could not keep it confidential.

I don’t —

Felix Frankfurter:

(Inaudible) a petition to put it — whatever you call it.

John V. Lindsay:

It would have to be on the record.

That would have to be given as his — if he was going to grant suspension for that reason, assuming — assuming qualification have been met, if he decided that was the reason that he wanted to grant suspension, he put it in the — he put it in his statement and send it to the Congress.

Felix Frankfurter:

(Voice Overlap) statement.

I’m assuming, the fellow is about to be deported, he denied the suspension, he files a petition for habeas corpus in which he’s ready to prove that the only matter in the file of a confidential nature where he has made various activities to complete politically for the opposing party in 1950 or was it 1952?

John V. Lindsay:

Well —

Felix Frankfurter:

Could he — could he be allowed — would you allow him to prove it?

John V. Lindsay:

I would not allow him to prove it, and I don’t thing that that would be in the file in the first place.

Felix Frankfurter:

Well, that’s — how do you know?

John V. Lindsay:

Because that doesn’t meet the standard.

Felix Frankfurter:

How — how — I have to take your word for it with every respect (Voice Overlap) —

John V. Lindsay:

You’re taking a case where suspension had been granted.

Felix Frankfurter:

No, I’m taking a case where suspension had been denied because the deportee was a mischievous active campaigner against — a successfully mischievous active campaigner in his district against the present President of the United States.

John V. Lindsay:

Unless it appeared affirmatively on the face of the proceeding, you could not inquire, you could not — you can’t probe his mind to find out what led him to grant or deny suspension —

Felix Frankfurter:

Then what is —

John V. Lindsay:

— in these cases.

Felix Frankfurter:

— your answer to the Chief Justice’s question of all the caprice that you say limits the Attorney General could in fact have moved him and exclusively moved him but you can’t establish that he did exercise it.

John V. Lindsay:

Well, I think that’s the result that you reach if you concede that the Attorney General is not required to hold a hearing in these — in these proceedings.

I — I — if you give me —

Felix Frankfurter:

What if (Voice Overlap) —

John V. Lindsay:

— if you permit me —

Felix Frankfurter:

I put it to your (Inaudible) the fact that the Attorney General need not hold a hearing, it doesn’t mean if he does hold a hearing, he can be capricious in doing it.

John V. Lindsay:

But I — I will say this also that there isn’t decision of this Court which has gone so far as to say that when a — the Attorney General or any other cabinet officer prescribes a hearing or prescribes a procedure which is in aid of his making a decision that it’s got to be this type of procedure or got to be that type of procedure —

Felix Frankfurter:

(Voice Overlap) —

John V. Lindsay:

— providing — providing his regulations appear in writing that the alien in this particular case knows about them and the — and the Attorney General follows them.

Felix Frankfurter:

Suppose — suppose can the Attorney General withdraw the hearing procedure in a particular case and restore it in the next hearing?

John V. Lindsay:

Well, I — I think —

Felix Frankfurter:

(Voice Overlap) —

John V. Lindsay:

— that the Attorney General can amend his regulations and abolish a hearing.

I think he can.

Felix Frankfurter:

For a particular case?

John V. Lindsay:

No, not for a particular case.

Felix Frankfurter:

Or on a particular day?

John V. Lindsay:

I would — I would say if it followed the usual procedure of a notice through the — through the Federal Register and the rest of it that there would be — it would be perfectly permissible to do that.

In other words, if he redrafted his regulations and gave up and submitted them to the public via the Federal Register and an opportunity to be heard and all the rest of it.

And in that — in that revision, he has abolished a hearing, it would stand up in court.

Felix Frankfurter:

I’m assuming he had a hearing that was in existence at the time a particular case which came before him but he abolished it to the — the day before the hearing.

Is that all right?

John V. Lindsay:

I don’t think he could do that.

No, I don’t — I mean — I mean he’s — if I understand your question, he’s prescribed a hearing and the — and the alien conducts himself accordingly and then when the alien walks into the hearing room, a special inquiry officer gets up and walks out and says I just discovered the Attorney General has abolished the hearing.

Felix Frankfurter:

Nothing to do with that.

John V. Lindsay:

Well, I — I mean, I — I think that that’s not compliance with the existing regulations and you can’t change the regulations unless you follow other established rules.

Felix Frankfurter:

Although, Mr. Lindsay, ab initio he didn’t held any hearing.

In other words —

John V. Lindsay:

We’re getting a little — we’re getting a little technical about how you go about change in the regulations —

Felix Frankfurter:

(Voice Overlap) —

John V. Lindsay:

— it would seem to me.

Felix Frankfurter:

— the point for which I agree with you is that under the statute, the Attorney General can act without any over procedure at all —

John V. Lindsay:

Correct.

Felix Frankfurter:

I agree with you.

I do not agree with you that therefore since he could — that therefore a part is better than nothing, I do not agree with that.

It doesn’t follow it.

Let’s not withdraw, may be he could (Inaudible)

John V. Lindsay:

Well, I don’t — I’d like to point out in answer to that question a situation which the Second Circuit was confronted with in — in 1950 of a case called the Kaloudis case which is cited at page 20 of the Government’s brief.

Now, there, you have not quite this situation on all force, we did in the Second Circuit a little bit later.

We’ve got the same situation as you got here and it’s been — and it’s been settled in that Circuit.

But in the Kaloudis case this very question came up of how far can you go in probing the mind of the officer who’s exercising this discretion?

There, the case was — the alien had been sometime in the past a member of the International Workers Order.

Now, there have been no — there is no — there is no information as to whether he was a member with knowledge of any character that it may have had, that he was an actively engaged member whether he joined it for insurance purposes or why.

And the Second Circuit said this, “True without an inquiry we cannot know where the membership in the — in the IWO was prejudicial for we cannot tell whether the Attorney — the Attorney General had adequate grounds for proscribing it.

On the other hand, we cannot say that he did not and if the relator has any privilege of inquiring into the grounds he has been wronged and the rich should have gone.”

This is habeas corpus proceedings.

An alien has no such privilege unless the ground stated is on its face insufficient, he must accept the decision for it was made in the exercise of discretion which we have again and again declared that we will not review, skipping a bit.

The power of the Attorney General to suspend deportation is a dispensing power.

Like a judge’s power to suspend execution of sentence or the President’s to pardon a convict.

It is a matter of grace over which the Court’s have no review unless it affirmatively appears that denial has been actuated by considerations of Congress could not have intended to make relevant.

Now, a little bit later came the Matranga case which I shan’t go into, decided by the Second Circuit in 1952 at which this very question was in point.

And the Second Circuit squarely held that this was in the nature of a discretionary decision, not going to the question of eligibility but on the question of whether or not suspension should be sustained, should be granted or not and that the Attorney General therefore may consider confidential information.

In this case, the regulation hadn’t yet been promulgated.

It was prior to the 1952 Act and prior to the new regulations.

One — one point (Voice Overlap) —

Hugo L. Black:

What you meant there when you said emphasize and not going to the question of eligibility?

John V. Lindsay:

Well, what the Court said — said was this, “Since it was used, the confidential informations, for its bearing of — for its bearing on the formulation of a discretionary decision, our precedence bar relief.”

Then a bit — a bit up above that it — “The decision states in any event the record does not show the use of confidential information in the determination of these issues,” referring to eligibility.

John V. Lindsay:

The — the statutory minimum requirements, 10 years continuos residence, a showing of good moral character during that period, no final order of deportation being issued by the Attorney General and so forth.

Hugo L. Black:

Is it your position that the — the deported alien that have been declared deportable does not have a right to a hearing to determine his eligibility?

I’m not talking about to determine the question, to determine his eligibility.

John V. Lindsay:

He may have a hearing and he’s given a hearing.

Hugo L. Black:

He has to have, doesn’t he, under the statute?

John V. Lindsay:

I — I think —

Hugo L. Black:

It says he can prove.

John V. Lindsay:

— that — that it — it says prove and — and for the purpose of this —

Hugo L. Black:

(Voice Overlap) —

John V. Lindsay:

— argument I will concede that — that a reasonable argument could be made that he’s got to have a hearing to prove minimum qualification.

I don’t — I want to —

Hugo L. Black:

But it says — it says without any qualification that I can see that he, an alien, can be allowed, must be allowed to prove these things.

John V. Lindsay:

Well, he could do it by —

Hugo L. Black:

Now, that doesn’t mean that the Attorney General has to suspend.

John V. Lindsay:

He could — he could it for affidavit.

He could do it on paper application.

Hugo L. Black:

But whatever it is he has to be allowed to prove it.(Voice Overlap) —

John V. Lindsay:

Let me answer it this way.

Hugo L. Black:

— that could — that should carry that idea to mean.

John V. Lindsay:

Let me answer it this way if — if I may, Mr. Justice Black.

There is another provision of the Immigration and Nationality Act which says that the Attorney General may withhold deportation where there — in his opinion there is a likelihood that the alien will be subjected to physical persecution in the country to which he is being deported.

There is no hearing prescribed for that.

It’s done purely on papers but the alien is given an opportunity under the practice to submit a showing as to — as to his view as to why he would be subjected to physical persecution if he was sent to that country.

Earl Warren:

Would you say in that statute that he has an — to have an opportunity to prove it or does it just say that — that in the discretion of the officers, that being the fact, he can —

John V. Lindsay:

No, they call it —

Earl Warren:

— lose his family.

John V. Lindsay:

What it says is — what the provision says is actually this, “The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which — in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.”

Earl Warren:

That’s a little different (Voice Overlap) —

John V. Lindsay:

It’s a bit different, I’ll concede that.

I’ll concede that.

John V. Lindsay:

Let me say this, here’s — here’s one more point, it is provided in the Act that an alien who receives a pardon or an alien who has been convicted of a crime involving moral turpitude as to which the judge recommends against deportation does not come within the specific spelled out provisions as to deportability.

You wouldn’t — you couldn’t make an argument that the alien would be entitled to know all of the — all of the factors and — and considerations that the judge took into consideration or that the Governor of a State took into consideration when he denied pardon in the case of the Governor or denied or declined to make a recommendation against the deportation —

Hugo L. Black:

But the point (Voice Overlap) —

John V. Lindsay:

— and yet the effect is the same — and yet the effect —

Hugo L. Black:

I was asking you for this reason, if the statute, that it seems to me, give him a right to prove his good character for 10 years that he’s been here for 10 years and then the other conditions.

Before the Attorney General can exercise his discretion, he has a right to prove that character.

Then how could the Attorney General, after he has proven good character and a hearing because that would after imply a hearing under all our interpretation of the statute.

How could the Attorney General, after it was established by hearing by the Congress that said he could prove it, tear it down by (Inaudible)

John V. Lindsay:

Well, I don’t think he does tear it down and I don’t think that — and I don’t —

Hugo L. Black:

(Voice Overlap) —

John V. Lindsay:

— I don’t go so far —

Hugo L. Black:

As far as his character was concerned.

John V. Lindsay:

I don’t go so far either as to say that — that it’s absolutely necessary under interpretations of this Court to require a hearing and — and to prove these minimum qualifications.

Felix Frankfurter:

You mean an oral hearing?

You mean an (Voice Overlap) —

John V. Lindsay:

The type — yes, I mean the normal type for adversary hearing which this is not because it’s not an adversary —

Hugo L. Black:

Some kind of hearing.

John V. Lindsay:

— it’s not an adversary case.

Hugo L. Black:

Some kind of hearing, the statute usually — I mean the Court has always interpreted as I understand it, when a man is given a right to prove something that means he’s got to have a right to have a hearing, some kind of hearing.

John V. Lindsay:

May I answer your question this way, Your Honor, and I see my time is up so I’ll make it brief.

In exclusion cases, Knauff and Mezei are two cases which deal with exclusion and they hold that confidential information there may be used without a hearing to exclude an alien.

Now, there — there isn’t any area of discretion in the Attorney General.

The alien has met all qualifications, his visa is open, he’s in line, his health is okay, his papers are in order and yet because of confidential information, the Attorney General is, under the statute and upheld by this Court, is entitled to say, “We will not let him in without any hearing.

He cannot prove anything.

He can’t even show that he’s eligible under the Code and all the rest of it.”

Now, in the instant case, the alien here is even in a worst position.

He is in an inferior status.

His status has been adjudicated, he’s out.

He is to be deported.

The alien who’s coming in hasn’t even had a chance to — to show anything.

Hugo L. Black:

But here Congress has given a status to a deportee to this extent, it has said that he can be allowed to prove three things and if — if those are proven then he’s eligible for the Attorney General to consider in his discretion —

John V. Lindsay:

That’s right.

Hugo L. Black:

— whether you will suspend him —

John V. Lindsay:

That’s right.

Hugo L. Black:

— but the — the Attorney General, as I see it, is not given a discretion with reference to these three matters, they’re subject to prove it in some kind of hearing.

John V. Lindsay:

Well, I think he’s got to take proof on that and then I think he’s got to take the alien submission of proof, just as in the case of the alien who’s being sent off to —

Hugo L. Black:

And — and if the alien prove it then he can call on the Attorney General to exercise his discretion on the basis of whether it would work in unusual hardship, I suppose.

John V. Lindsay:

Well, there — there, you and I are different.

Hugo L. Black:

But you — you would say that —

John V. Lindsay:

Very different.

Hugo L. Black:

— you’d have a right to do it, to exclude him then but could he exclude him on the basis of taking new evidence, hearsay evidence as to the matters which had been proven in the hearing to wit good character?

John V. Lindsay:

I just — I just quoted you a case decided recently by the Court of Appeals where unusual hardship — minimum requirement of unusual hardship and it was pretty tough if you read that case when you come to it in the Government’s brief and the Attorney General still said, “I will not exercise discretion in favor of the alien in this case.”

That’s the — that’s the Melachrinos case which appears in —

Felix Frankfurter:

230.

Hugo L. Black:

(Voice Overlap) —

John V. Lindsay:

— in Volume 230.

Hugo L. Black:

— I was asking which maybe — which may not be appropriate even though he has discretion, does he have discretion to deny the eligibility or to deny him the suspension by refusing to accept the previous finding that settled the question of his eligibility?

John V. Lindsay:

No, because of his own regulation.

Hugo L. Black:

Well, without regulation, I’m talking about the statute.

John V. Lindsay:

I — I would prefer —

Hugo L. Black:

The eligibility.

John V. Lindsay:

I’d prefer when it comes to the — this question of proof to adopt the suggestion of Mr. Justice Minton that — that he could still — that the requirements of due process, procedural due process in this extraordinary type of relief couldn’t be met on proof by a submission on papers.

I’d go — I’d go that far and I think that —

Hugo L. Black:

But — but —

Felix Frankfurter:

That would take care of the problem.

Hugo L. Black:

But if proven, how then can — proven under authority of Congress, under a statute, how then can the Attorney General refuse to regard him as proven?

John V. Lindsay:

Well, I don’t think he can.

I think he finds — he —

Hugo L. Black:

(Voice Overlap) —

John V. Lindsay:

— he finds that the alien then has met the minimum qualifications for eligibility.

Earl Warren:

Mr. Maslow.

Will Maslow:

I’d like to address myself, Your Honors, to two points.

First, the meaning of Section 235 (c) and second the claimed analogy between the power to suspend and the power to pardon.

Section 235 (c) relates to the exclusion of immigrants aliens.

That is the class which for all practical purposes has no rights under the Constitution.

This class here is not a deportee.

It’s an alien who is deportable because under the statute suspension cannot be granted if a final order of deportation has been issued.

At the moment, therefore, when his application is considered, he’s not a deportee, he’s a person against whom a deportation proceeding is pending.

Now, when Congress authorized the use of confidential information and by the way this Court has not yet upheld that use and Knauff and Mezei cases dealt with the war time or emergency statute.

Section 235 (c) is the statute that has nothing at all to do with emergencies.

But assuming that 235 (c) is valid, Congress said, “You don’t have to give him a hearing if you use confidential information,” because it recognized that you can’t have both concepts, a hearing and confidential information.

Mr. Lindsay has said that half a loaf is better than none.

I think that the half a loaf is poisoned, it is not better than none.

The alien who comes to the hearing, thinking that he is getting a right of some kind and as said walks into a snare, he’s no better off and that there were no hearing at all.

As a matter of fact, he may be worst off.

Now, as to the analogy to pardon, the action of a president in refusing to issue a pardon is absolutely non-reviewable, no matter how arbitrary it is.

The acts of the President or those of an independent branch of the Government and this Court cannot review them.

But this Court can review and the Government has conceded that this Court can review a manifest abuse of discretion by an attorney general and there are cases where the lower courts have made this reversal.

I want to point out other distinctions in the pardoning power.

The pardoning power, unlike the power here, is not divided among the whole hierarchy with a special officer, Board of Immigration Appeals, the Attorney General and Congress, it’s the act of a single man who in private, according to his own conscience, decides to act.

Secondly, there is a vast difference in the power to review the two.

Now, Mr. Lindsay was asked by several members of the Court as to where the judges — where the Attorney General’s discretion ends and the Government’s brief concedes that where it appears in someway that there’s been abuse of discretion, this Court can review them.

Now, it doesn’t have to appear on the record if we can show by independent means that the Attorney General has been bribed or is corrupt or is actuated by racial or religious prejudice, the Court would still review it whether it appeared on the record or in his decision.

I’d like to emphasize as well that this Court in McGrath against Kristensen stated that the alien had a legal right to be considered for suspension.

That’s the right that granted him by the regulations.

That’s a far different situation from the criminal — convicted criminal, who as of matter of grace, entreats the President to pardon him.

He has no rights at all.

This alien has a right to be considered.

And in the McGrath case, this Court reversed the Attorney General when he found that the alien was not eligible for it.

I’d like also to quote, because I think the language is apt, the paragraph from a decision in this Circuit — in this District, the decision of Judge Morris involving the use of confidential information.

Will Maslow:

He said there is no place in this government for arbitrary actions and there is no way to know whether such action is arbitrary or not, unless the basis upon which it is taken is revealed.

If — when Congress gave the Attorney General the power to act in his discretion, it didn’t intend that he would have an absolute and limitless power.

The term discretion is a word that means implicit in it that the discretion will not be arbitrary.

Thank you.