Jay v. Boyd


DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

ARGUED: May 03, 1956
DECIDED: Jun 11, 1956

Facts of the case


  • Oral Argument – May 03, 1956 (Part 2)
  • Audio Transcription for Oral Argument – May 03, 1956 (Part 2) in Jay v. Boyd

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

    Earl Warren:

    Number 503, Cecil Reginald Jay versus John P. Boyd.

    Mr. Maslow.

    Will Maslow:

    If the Court please, this case is hereby writ of certiorari to the Ninth Circuit Court of Appeals, which had affirmed a District Court refusal to issue a writ of habeas corpus.

    The alien petitioner here had sort by that writs to review an order of the immigration service which had directed his deportation and simultaneously had denied his application for suspension.

    The alien, however, no longer contest his deportability and the sole issue, therefore, before this Court, is whether the Attorney General has lawfully denied the alien’s application for this discretionary relief.

    The alien as a British subject, 65 years old, who has lived in this country continuously since 1921, a period of 35 years, he was ordered deported in 1951 because he admittedly had been a member of the Communist Party of United States from 1935 to 1941.

    At that time, the alien was not eligible for the discretionary relief of suspension.

    However, in 1952, the Congress, when it enacted the Immigration and Nationality Act, for the first time, allowed the Attorney General to suspend the deportation of those found guilty of having been past members of the Communist Party.

    Accordingly, the alien petitioned the Board of Immigration Appeals to withdraw the order of deportation, to reopen the deportation hearing and to consider his application for suspension.

    That was done, and in 1953, the reopen hearing began.

    Now, at that time, to qualify under the statute for this discretionary relief, four conditions had to be met.

    First, the alien had to show that he had been continuously a resident of United States for the last 10 years.

    Secondly, he had to show that he had been a good moral character during that period.

    Thirdly, he had to show in the language of the statute that the deportation would result an exceptional and extremely unusual hardship to him or to his family.

    And fourthly, the — no final order of deportation could be in effect to qualify him for this discretionary relief.

    The Attorney General who was given the statutory power to suspend deportation has delegated it by regulation to a core of officers in the Immigration Service known as special inquiry officers.

    And he has likewise prescribed most precisely the hearing procedure to pass upon these claims.

    The special inquiry officer therefore who heard this alien’s application in 1953 found specifically that the alien had met all of the statutory qualifications.

    Indeed, he found in addition that the alien had not been a member of the Communist Party since 1940.

    And then his opinion goes on to state and I quote all of the opinion, it’s just two sentences and it maybe found at page 48 of the record.

    This is the language of the special officer, “However, after considering confidential information relating to the respondent, as is provided for under 8 CFR 244.3, it is concluded that the respondent’s case does not warrant favorable action and that his application for suspension of deportation should be denied.”

    There is nothing further in the opinion about it nor is there any reference — was there any reference in the hearing to any confidential information.

    At this reopened hearing, the only witnesses called were those called by the alien, the Government made no effort to introduce any evidence that in any ways derogatory to the alien.

    And as far as anyone can tell, by looking at the record, there is nothing there to justify the denial of his application.

    Was anything said at the hearing that indicated that this confidential information was going to be relied on?

    Will Maslow:

    Nothing, Your Honor.

    In fact, the Government introduced at this hearing, an FBI investigative report.

    That report discloses nothing derogatory to the alien.

    He’d simply gave his fingerprints, lack of criminal record, his alien registration number and so on.

    When the alien — when the alien’s application for a suspension was denied, he appealed as he had a legal right to do to the Board of Immigration Appeals.

    Will Maslow:

    That Board dismissed his appeal explicitly resting their dismissal on this regulation, 244.3.

    Thereafter, he made the same contention in the District Court, in the Circuit Court of Appeals and each of this likewise dismissed his appeal and explicitly upheld the validity of regulation 244.3.

    That regulation, Your Honors, may be found at page 61 of the Government brief.

    The crucial case —

    Felix Frankfurter:


    Will Maslow:

    The crucial — yes, Your Honor.

    The crucial case — the crucial question on this case therefore is whether the Attorney General, having on the one hand by regulation, directed that a hearing should be conducted to pass upon an alien’s application for suspension, may on the other hand, vitiate that hearing by authorizing his subordinates to deny such relief to an alien admittedly eligible and qualify for it solely on the basis of confidential information, not of record, and which is not disclosed to the alien.

    Incidentally, I might say that in the first Accardi case, Mr. Justice Clark in Footnote Number 5 stated that that was not the issue before the Court in the Accardi case, namely, the validity of this regulation authorizing the nondisclosure of non-record information.

    Now, the alien, in this proceeding, makes three contentions.

    We contend, first of all, that the regulation promulgated by the Attorney General was not authorized by Congress and is therefore invalid.

    Secondly, we contend that even assuming that the regulation is valid, it is inconsistent with other regulations promulgated by the Attorney General and inconsistent with other provisions of the Immigration and Nationality Act and that this Court must therefore reconcile these inconsistencies by directing that a fair resume of the confidential information be disclosed to the alien.

    This is what this Court ordered in the selective service cases beginning with United States against Nugent, Simmons against United States.

    My associate, Mr. Caughlan, will argue the second point.

    Now, independently, appoints one and two —

    Did the alien asked for a resume following the coming down of this sentence?

    Will Maslow:

    No, sir he did not.

    He was no position to ask for a resume because at the time of the hearing, he did not know that confidential information would be used against him.

    But after the report, did he —

    Will Maslow:

    No, sir he did not.

    Now, independently of these two points, our third contention is that in violation of an explicit regulation of the Attorney General, which as you know, has the effective law and is binding upon the service, and in effect, spells out the alien’s rights.

    The special inquiry officer has failed to state the reasons for denying the application for a suspension.

    Now, there is a specific regulation that makes that requirement and that regulation is likewise found in the appendix to the Government brief, its regulation 242.618.

    My associate, Mr. Caughlan, will — has argued the third point.

    Now, before I address myself to the first point, namely, the validity of the regulation, I think it’s essential to describe the process by which the Immigration Service passes upon this applications.

    The service has, in the last five years, deported an average of 20,000 persons a year, and that figure, Your Honors, is exclusive of the so-called Mexican Wetbacks, hundreds of thousands of home are expelled without formal procedures.

    And even larger number of hearings is held each year and our brief cites a letter from an assistant commissioner of immigration that there are — there was in the last fiscal year, 35,00 of these deportation hearings.

    In forfeit of these hearings, deportation is not an issue so that you have perhaps 20,000 hearings a year in which the sole issue is whether or not the order of deportation shall be suspended.

    Incidentally, the term suspended is a word of art because if suspension is actually granted, the deportation proceeding is canceled and the alien’s right to remain in this country is legalized.

    Now, to deal with these mass of applications, the Attorney General, as by regulation prescribed a hearing procedure.

    First of all, he is — the regulations provide — these regulations are all cited in the brief of the amicus curiae.

    Will Maslow:

    Regulations provide that the application for a suspension can only be made during the hearing.

    In fact, this is almost a statutory requirement because until the deportation — if a deportation order is outstanding, the alien is not qualified under the statute, and therefore, the deportation order must be set aside as was done in the case at bar, or else — and that is the common procedure.

    In one hearing, the special inquiry officer disposes of the question of deportability and the second question of whether suspension shall be granted and the service encourages this because it does not want to have the expense and inconvenience of having two hearings.

    Now, the hearing whose incidents are described in regulation 24.2 in the Government’s — reprinted in the appendix to the Government’s brief is a formal one.

    The term hearing, incidentally, is in the regulation itself.

    There is a regulation that specifically says that this shall be called a hearing.

    The alien is represented by counsel, witnesses are sworn, they are examined and cross-examined, the exhibits are put to the record, a transcript is kept, there is, in other words, all of the indicia of what we know as an administrative hearing.

    Following the hearing, the regulations require the special inquiry officer to hand down a written decision.

    In that decision, according to regulations, he must dispose of the issue of deportability.

    Then the regulations provide that if the alien has made an application for suspension that his decision shall contain, and here I quote again from the regulation appearing at Government’s brief page 60, his decision shall contain, “A discussion of the evidence relating to the alien’s eligibility for relief and the reasons for granting or denying such application.”

    Then he issues an order which specifies whether or not the alien shall be deported and whether or not suspension shall be granted.

    It is unlike the practice that existed in 1947, for example, where the hearing officer may have made recommendations.

    He has the authority to issue the order.

    The order of the special officer is final unless he decides it takes an appeal to the Board of Immigration Appeals and the appeal may be taken from the order of deportability for the order granting or declining suspension.

    Each side has an appeal.

    The alien, thereafter, has no further administrative rights of appeal although the service thus.

    The service may appeal to the Attorney General or the Attorney General as on motion may review and reverse the Board of Immigration Appeals, although, this is the power which he rarely exercise.

    Now, if the Attorney General allows the order of the Board of Immigration Appeals to stand, the suspension order is still not effective.

    He is required by Section 244 (c) of the Act just likewise in the appendix of the Government’s brief to report the action taken to Congress.

    And the statute provides that each case to which suspension is granted by the Attorney General that he must furnished Congress, and I quote, “A complete and detailed statement of the facts in pertinent provisions of law in the case with the reasons for such suspension.”

    The Congress then has two alternatives.

    It may, by affirmative resolution, agree with the Attorney General, in which case, the proceedings of counsel that his stay is legalized or it may disapprove.

    If it fails to approve, the alien must depart from this country.

    Could you enlighten me in my ignorance on one thing, these regulations that refer to the hearings on the back of the Government’s brief, are those the deportation hearings?

    Will Maslow:

    Well, Your Honor, it’s only one hearing.

    If the hearing which there are two issues, a hearing on the issue of deportability and in hearing on the issue of suspension.

    So that you have to make your application for a suspension continued upon an adverse order of deportation?

    Will Maslow:

    Yes, Your Honor.

    As a matter of fact, the regulations prescribed that the very beginning of the hearing before the witness as even before the alien has — they even put on every evidence, the regulations prescribed that the special officer shall advice the alien of his right to this application.

    And then it’s within the discretion of the hearing officer of the order in which the proof is taken.

    Will Maslow:

    Now, the nub of this case therefore is regulation 244.3 which empowers these special officers aboard in the case of any alien qualified for suspension to grant or denies such relief on the basis of confidential information.

    Without disclosing it to the alien, it’s in the opinion of the special officer or of the Board, with that determinations made on appeal, such disclosure would be prejudicial to public interest safety or security.

    Your Honors will note there is no requirement that the special inquiry officer consult with anyone into the department before he labels these materials confidential.

    There is no regulation that prescribes any procedure whereby his actions can be reviewed.

    He is not required to consult with security officers of the Government.

    He does this entirely on his own.

    The Court will also note that this regulation, 244.3, is not limited to cases involving subversives, who are a very tiny percentage of all of the aliens ordered deported.

    Felix Frankfurter:

    What is the largest — what is the predominant cause for the 20,000 arguments —

    Will Maslow:

    In 90% of the cases, Your Honor, the predominant cause is an illegal entry.

    The remaining cases —

    Felix Frankfurter:

    Are your illegal entry unrelated from disclosure of adverse activity.

    Will Maslow:

    It’s an illegal entry but first —

    Felix Frankfurter:

    Yes, I know but it’s maybe illegal because of that.

    Will Maslow:

    Well, under this regulation —

    Felix Frankfurter:

    Well, I just want to (Inaudible)

    Will Maslow:

    I’m trying to answer it, Your Honor, but I want to understand the question first.

    In the — if an alien sneaks across the border or it doesn’t appear for inspection or has a made a fraudulent representation or was in a category that was excludable.

    Felix Frankfurter:

    Now, that’s what I want to know.

    The seven of the 20,000 that belongs to an excludable subversives (Inaudible) —

    Will Maslow:

    At least 90%.

    Felix Frankfurter:

    — the word I reject.

    Will Maslow:

    You’ll find that information in my article in the current issue.

    Felix Frankfurter:

    What exactly is the number?

    Will Maslow:


    Felix Frankfurter:


    Will Maslow:

    90%, it varies slightly to —

    Felix Frankfurter:

    (Inaudible) — I guess I haven’t made my point.

    90% of illegal entry, is that right?

    Will Maslow:

    90% of the total deportations are due to illegal entry.

    Felix Frankfurter:

    Now, what I want to know, of the 90%, what percentage is attributed to excludability because of associations at least per person.

    Will Maslow:

    It’s hard to tell that, Your Honor.

    I don’t see how anyone could answer it.

    Felix Frankfurter:

    So that this is in where — that is your remark, the review of a subversives activity.

    It may be excluded in causing subversive activity or would have been excluded as it came in by the questions of facts.

    Will Maslow:

    Well, that’s only a very tiny percentage.

    Felix Frankfurter:

    That’s what I want know.

    Will Maslow:

    Now, these words in the regulation, 244.3, have a very awesome sound prejudicial to the public interest safety and security but in practice, the special officers of the service are not prestigious about the type of material that they label as confidential.

    I say that on the authority of a reports of the house committee on government operations which is cited on the brief of amicus, which made an intensive study of the operations of one particular suspension case.

    But in that study, they examined under oath a great many officials of the service including the assistant commissioner in charge of investigation.

    In that reports, and the transcript of the hearing reveals that without question, there are two types of confidential information.

    There’s the classified type and there’s the non-classified.

    I think particularly revealing are the descriptions under oath given by various levels of authority as to what is confidential information.

    One investigator testified that it was merely information we received off the street.

    A special inquiry officer testified, “what might be termed hearsay evidence which could not be gotten in the record.”

    A third said there was said — it — it was evidence that came from witnesses whose names at service that I want to disclose.

    And finally, this — the assistant chief himself in the describing confidential information within the meaning of this regulation says they’d included such things as income tax reports.

    Now, this is not merely occasional aberration or a violation of the regulation by one or more officers because the investigator’s manual, which was revealed that a confidential document but whose existence was revealed by this house committee goes on to instruct the investigators that they shall make a report of information offered by adverse witnesses unwilling to testify and recite bluntly that this report, “Though not made a part of the hearing record will be considered in making a decision on the case.”

    This is what special inquiry — this is what confidential information means in practice and not in the words of the regulation.

    Is there a regulation that permits the use of confidential information to the deportation proceedings?

    Will Maslow:

    No, sir that would be contrary to the Constitution.

    Limited to these suspension proceedings.

    Will Maslow:

    I must point out, Your Honor, however, that where the special inquiry officers sit alone in the case until very recently he did so.

    He has access to the confidential information on the suspension portion of the case, but he also has to decide the deportation portion of the case and he is supposed to be able to shield his mind from the prejudicial material which is not of record and not disclosed to the alien, so that it’s possible for the special officers —

    That is an issue — that issue isn’t here.

    Will Maslow:

    It’s not an issue here because here deportability is submitted, but the regulation, which we challenged, makes it possible for the special officer who has to decide deportability also with the same material that’s very prejudicial to the aid.

    Now, regulation 244.3 is certainly not indispensable to the administration of the Act because from 1940 to 1952, there was no such regulation.

    The Government brief cites an intensive study of the immigration law by the Senate Judiciary Committee in 1950 that led to the codification of this Act.

    There is one line in that 925 page reports that in any way relates to confidential information in suspension cases.

    There is nothing in the Act, there is nothing in the congressional — in the reports of the congressional committees, nor was I able to find the single line in a congressional debate that went on for weeks.

    And I suspect that the Government was not able to either because they didn’t cite it although they cite it in many other things in their brief.

    Will Maslow:

    Now, it will be noted that regulation 244.3 allows this special officer to grant as well as to deny an application on the basis of confidential information, but if he does so, that special officer would have a hard job complying with the statutory mandates that the case of suspension that a complete and detailed statement of the facts must be reported to Congress together with the reasons for granting suspension.

    Congress wanted a complete report and it’s inconceivable that Congress would allow the Attorney General to withhold the information from it since it is the final authority in passing upon the suspension cases upon the Attorney General’s claim that confidential information was involved.

    My associate will argue the points (Inaudible)

    Stanley Reed:

    What — what is done in there with the confidential information so far as the report under 5 (c) is concerned, 5 (c), yes.

    It’s — it’s not reported to Congress in any way?

    Will Maslow:

    Well, I have no way of knowing, sir, whether there is any case in which the confidential information has been reported to Congress or has not been.

    Stanley Reed:

    Those are all confidential reports —

    Will Maslow:

    Well, they are not confidential by statutes, but they are not public documents.

    They are reported to the Immigration Committee, but they’re not printed in the Congressional record or otherwise.

    Earl Warren:

    Well, if the case was decided against the deportee, it wouldn’t go to Congress.

    Will Maslow:

    There’s no report required.

    Now, when Congress — the Congress that enacted the McCarran-Walter Act, it was familiar with the problems of confidential information because there is one section of the Act where it’s authorized.

    That’s 235 (c) but it relates to exclusion of immigrant aliens.

    A class, which this Court has said, the Congress has almost plenary power over, and there, there are many distinctions and the — the regulation itself is carefully limited so that the before the Attorney General may use his confidential information in the inclusion cases, he is required to consult with appropriate security agencies.

    Felix Frankfurter:

    That is all the Attorney General has suspended some people, has he not?

    Will Maslow:

    He suspended an average of 4000 a year.

    Felix Frankfurter:

    And am I to infer from what you said a minute ago that there is no public — this notification of Congress was not made publicly going in?

    Will Maslow:

    Well, it’s made publicly in the sense that the Congressional record reports that a communication was received from the Attorney General.

    I say it’s not made a public document.

    Felix Frankfurter:

    Is that all it says?

    Will Maslow:

    That’s all.

    Felix Frankfurter:

    Getting a list?

    Will Maslow:

    No less than nothing.

    It merely gives the date of the report.

    Felix Frankfurter:

    Well, it said — the statute says it was the reason for such suspension that such report shall be submitted on the first and 15th day of each calendar month in which Congress is in session.

    Now, am I to infer from what you’re saying that the Attorney General communicate confidentially —

    Will Maslow:


    Felix Frankfurter:

    — with somebody in Congress.

    Will Maslow:

    No, sir.

    I don’t mean that at all term.

    Felix Frankfurter:

    Does he give any reason?

    Will Maslow:

    I don’t know, sir, because that document is not a public document.

    I don’t know whether anyone would be free to examine that document.

    Felix Frankfurter:

    Then the answer that this provision of an Act of Congress requiring you to report with the reason, it’s interpreted in the Act to be that he have made — whispered to somebody’s ears what the reasons are, is that it?

    Will Maslow:

    Oh I can’t — I can’t say that.

    Felix Frankfurter:

    Of course, if you can say this, he was — you have said the contrary namely that there’s nothing in print which gives any —

    Will Maslow:

    But I note —

    Felix Frankfurter:

    — is that right?

    Will Maslow:

    Yes, but the House — the House Immigration Subcommittees and the staff of those subcommittees do have a complete file with the reasons and so on, whether —

    Felix Frankfurter:

    I mean, there were reports to Congress according to the meaning of the statute?

    Will Maslow:

    It is —

    Felix Frankfurter:

    I don’t understand that.

    Will Maslow:

    That is the actual practice as I understand it, sir.

    Earl Warren:

    Mr. Caughlan.

    John Caughlan:

    May it please the Court.

    The second point which petitioner wishes to make at this time is that the Attorney General has prescribed two regulations or two sets of regulations which both require a fair hearing and which permit the use of confidential information that these two inconsistent regulations can be reconciled only by requiring that a fair summary of the confidential information contained in — the confidential information used by the special inquiry officer shall be furnished to the applicant.

    Now, this portion of the argument assumes that the regulation 244.3, the regulation which — which permits the use of confidential information is a valid regulation.

    There is no requirement specifically, of course, in the statute in Section 244, the Immigration Act, providing for suspension of deportation that any hearing or any specific type of procedure be filed by the Attorney General in determining a suspension of deportation application.

    However, as has been pointed out by Mr. Meslow, suspension of deportation has been a very important part of the congressional scheme with reference to immigration nationality and — with reference to immigration, since the first enactment of a statute providing for suspension in 1940.

    Do you think the Attorney General could exercise his suspension powers about reporting in hearing at all?

    John Caughlan:

    Insofar as the statute indicates and so far as the statute says the Attorney General, if he saw fit to do so, could simply eliminate any hearing at all.

    Is there any substitution rejection?

    John Caughlan:

    Well, I don’t think that we — I don’t think we reach that position in this case.

    Now, we’re not contending that due process would necessarily be violated in failing to grant a — in failing to grant a hearing on suspension.

    The fact is, of course, that the Attorney General has from the first instance in which Congress pass a suspension statute, sir, has required — has authorized and is directed some kind of hearing on suspension.

    Our position here is that having directed a hearing and under the current statute which is referred to on page 23 of the amicus curiae brief of the American-Jewish Congress, under the current statute the hearing specifically referred to — that’s at the top of page 23, 8 CFR 242.53 specifically provides that the special inquiry officer conduct a fair and impartial hearing.

    Now, this requirement for a fair and impartial hearing is a requirement which is set forth to some detail, the method in which the hearing should be conducted and it’s requiring that was discussed, the requirement that was discussed by this Court in the first Accardi case.

    The requirement for a fair hearing was involved there in a suspension case at that — in that case it was at the second state before the Board of Immigration Appeals, but the Court stated that, speaking through Mr. Justice Clark and the majority of the Court, that the Board must exercise its own independent discretion after a fair hearing which is nothing more than the regulations accord the petitioner as a matter of right.

    Then the opinion goes on to say that the Attorney — that the petitioner may still fail to convince the Board or the Attorney General in the exercise of their discretion that he is entitled to suspension, but at least he will have been afforded that due process required by the regulations in such proceedings.

    Harold Burton:

    Is it your position that the Attorney General doesn’t have to give you a hearing on suspension, but if he does, it must be one that is fair in due process hearing?

    John Caughlan:

    Precisely, precisely, if he prescribes a hearing as he has done, it must be a fair hearing and we take the position that that — and we believe that that is the position which was taken by this Court in the Accardi case.

    We here have a — a situation where he has specifically, and in so many words, prescribed a fair and impartial hearing.

    Now, then we come to regulation, the confidential information regulation in which the Attorney General said, “But the special inquiry officer may utterly disregard the provisions for a fair hearing and he may base his decision — he may predicate his decision on information which is not disclosed to the applicant and which is a confidential character.”

    What could be more unfair than to provide for a hearing in words and then to say that the hearing doesn’t have anything to do with the — the decision that you remain, that the decision may be predicated on that character of information described in Mr. Meslow’s argument, namely, information got off the street, hearsay, gossip or what have you.

    Now, this represents what appears to us to be irreconcilable conflict.

    On the one hand, a provision for a fair hearing, on the other hand, a provision for a no hearing.

    Hugo L. Black:

    What is the language to which you refer from the —

    John Caughlan:

    The language —

    Hugo L. Black:

    Present in your brief.

    John Caughlan:

    To — to which I refer in connection with —

    Hugo L. Black:

    Is that — is that a fair hearing.

    Where is that (Voice Overlap) —

    John Caughlan:

    That is not — unfortunately, Your Honor, printed in full in the — in either the Government or the petitioner’s brief.

    The language is contained in Section 242 and I have the — I have the code before me and it reads as follows.

    The special inquiry officer, this is 8 CFR 242.53 subparagraph (b).

    William O. Douglas:


    John Caughlan:

    8 CFR 242.53 subparagraph (b), reading as follows, ”The special inquiry officer shall conduct a fair and impartial hearing.”

    Harold Burton:

    Is that on the suspension now?

    John Caughlan:

    That is on the — the whole hearing because there is only one hearing.

    Now, the balance of that section, Section 242 (c) — 53 (c) is quoted in the appendix to the Government’s brief at page 61 — page 60, and that — that provides that the in Section (d) provide specifically for the consideration of matters in connection with suspension of deportation so that the regulation that I’ve just quoted regarding a fair and impartial hearing, Your Honor, relates to the whole process, the deportation, the question of deportability, and the question sent of suspension of deportation.

    The two are not separate in the —

    Harold Burton:

    What is it that refers to the suspension as well as the other, does it say so?

    John Caughlan:

    It says so right in the — in the regulation, if the Court — if Your Honor please.

    Section 242 (a) — Section 242.53 (a) relates to the — the conduct of the hearing, (b) that I refer to relates to the — comparing on the fair and impartial hearing and the Section (c) relates to the order of evidence providing that — not the order of evidence but the nature of the evidence requiring that the special inquiry officer shall advice the alien of his rights that he shall state the grounds — that he shall have the right to present evidence on the grounds of deportation, factors bearing on response as eligibility, and such other matters as may be pertinent in the issue of the case.

    So that if one regulation, it applies to one hearing and that one hearing relates both to deportability and suspension.

    The application has been made at the suspension hearing.

    Now, it’s our position then that you have here what’s black on the one side and what’s white on the other, that this can be reconciled and should be reconciled, must be reconciled only by the — the procedure formulated by this Court in consideration of the Universal Military Training and Service Act in the Nugent case.

    Hugo L. Black:

    May I — do you have — now referred to 242.53 (b) implying a fair and partial hearing, is that the regulation?

    John Caughlan:

    That’s the regulation, yes, Your Honor.

    Hugo L. Black:

    Is there another regulation which provides for the use of so-called confidential information.

    John Caughlan:

    Yes, there is Your Honor.

    That is regulation 242 — 244.3 and that appears on page 61 of the appendix of the Government’s brief.

    So that the one regulation calls for a fair hearing, the other regulation calls for the use of confidential information without that hearing.

    Hugo L. Black:

    But If he had the right to promulgate one regulation, would he — or not have the right to promulgate the other even if he was describing required things that any people might not think were consistent with the fair hearing.

    John Caughlan:

    Well, the — the two are — certainly do appear — appeared to be inconsistent.

    In other words, he has apparently taken the — the right of a hearing given under Section 242 — under Section (b) — subsection (b) a way when he has used the confidential information hearing.

    Hugo L. Black:

    So, why — why is it not the same as though in 242 (b) — 63 (b) he had said to be a fair hearing except to the extent that to accept that the — and maybe offered an evidence a confidential communication without letting the accused, if you want to call it the accused, know where it came from.

    John Caughlan:

    Well —

    Hugo L. Black:

    Isn’t it the same as though it’s all been in one just like here.

    John Caughlan:

    If he had placed the — them in the — in the same section, in Section 242, then the — it would have been in one section, that’s — that’s true.

    Hugo L. Black:

    Would it — would not and it had been the same as though it is now as were to be in a different effect?

    John Caughlan:

    If the two were — were in one section, well, if — I — I would say would have no substantially different effect if the two were included in one section, it would simply emphasize the fact that a — that some reconciliation would have to be made between the provisions of one portion of the section and the other which is what we contend for here, that this can only be reconciled by requiring some summary, not the source of the information but some fair summary of the information of some resume, of the information that was involved such as to require in the interpretation of the Universal Military Training and Services Act.

    And then to reconcile on another way, can’t you manage to say that the requirement of a hearing bear or otherwise is not an element of this discretionary branch of the deportation proceedings.

    John Caughlan:

    Well, as was already pointed out as — Mr. Justice Harlan, as was already indicated in connection with that, the Attorney General could abolish a hearing.

    He has chosen a procedure of having here and it is —

    Well, I — I don’t — if that’s so clear as you do.

    John Caughlan:

    Well, we believe that it is a necessary procedure for other reasons that is — it’s that — it is necessary in carrying out the intent of Congress that there must be a hearing upon suspension.

    It — it isn’t simply a matter of something that the Attorney General — that there must be some provision for — for formulating the information.

    Now, it’s our position then that the Nugent case represents a manner in which these two can be reconciled.

    Our third point, which I now — which to come to, is that regardless of whether Section 244.3 going for section — regulation going for confidential information is authorized regardless of whether this Court should require in reconciling these two irreconcilable provisions that the confidential, some resume of the confidential information be framed that there’s another reason in which must call for a reversal of the action in this case.

    Now, I call Your Honor’s attention to regulation regarding decisions on special inquiry officers which is printed, decisions of special inquiry officers which is printed on page 60 of the Government brief.

    This regulation, appearing at the bottom of the page, first relates to what shall be contained in a decision on the issue of deportability.

    The last sentence at the bottom of the page relates to the issue pertinent here.

    If the respondent has applied for discretionary relief in accordance with the provisions of Section 242.54 (d), the decisions shall also contain a discussion of the evidence relating to the alien’s eligibility for a relief and reasons for granting or denying such application.

    Now, here is what the record gave as to reasons for granting deportability.

    This appears on page 47 and 48 of the record.

    On page 47 and the top of page 48 in the very short decision of the special inquiry officer, which consumes only two pages of the record, there is contained a three or two and half paragraph summary of the evidence in the case in which the facts concerning the petitioner are discussed.

    The facts relating to that he has shown his good moral character is the extremely unusual, the exceptionally, extremely unusual hardship which we call him, the other fact is relating to eligibility.

    This is the only thing else in the record regarding which relates in any way to reasons for denial of suspension of deportability.

    On the record — for denial of suspension of deportation — on the record, the respondent appears to be qualified for suspension of deportation.

    John Caughlan:

    However, after considering confidential information relating to the respondent as this is provided for under Section 8 CFR 244.3, it is concluded that the respondent’s case does not warrant favorable action and that his application for suspension of deportation be denied.

    Now, if it please the Court, this is not a statement of reasons for denying suspension of deportation and I don’t see anyway in which it could be tortured into that.

    This is a statement of why no reasons are given for suspension of deportation.

    Earl Warren:

    We’ll recess now Mr. —