DOCKET NO.: 503
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
Media for Jay v. BoydAudio 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
Number 503, Cecil Reginald Jay versus John P. Boyd.
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?
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.