Kimm v. Rosenberg

LOCATION: Fleetwood Paving Co.

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 363 US 405 (1960)
ARGUED: May 16, 1960 / May 17, 1960
DECIDED: Jun 13, 1960

Facts of the case


Media for Kimm v. Rosenberg

Audio Transcription for Oral Argument - May 16, 1960 in Kimm v. Rosenberg

Audio Transcription for Oral Argument - May 17, 1960 in Kimm v. Rosenberg

Earl Warren:

Mr. Forer --

Joseph Forer:

Mr. Chief Justice --

Earl Warren:

-- you may continue your argument.

Joseph Forer:

-- if the Court -- the hearing officer ruled that the petitioner had failed to establish eligibility toward suspension under the statute, because he had failed to make the precondition to eligibility of proving good moral character for the preceding five years.

And the ruling reads as follows and I quote, “In view of his failure to answer the questions propounded, the respondent, meaning the petitioner here, has not affirmatively proved that he has been a person of good moral character for the past five years.”

Now, this finding was approved by both the District Court and the Court of Appeals.

The ground was not relied on by the Board of Immigration Appeals and it is not now defended by the Government in its brief.

On the other hand, the Government had not concede that the ground is wrong.

Charles E. Whittaker:

Assuming that it is Mr. Forer -- assuming that it is wrong, then what have you to say about the remaining finding that he is asking for an act of executive grace and he, himself, must show eligibility.

Joseph Forer:

Yes, well, I'm trying to take up, Mr. Justice Whittaker, each one of the various grounds at a time and that will be a later ground.

Charles E. Whittaker:

That's alright.

Joseph Forer:

I'm just trying to get rid of --

Charles E. Whittaker:

Very well.

Joseph Forer:

-- move on this ground first.

This -- the finding that he didn't prove good moral character, and limiting myself to that for the moment, is clearly indefensible.

The only evidence in the record, including the services on field investigation, shows good moral character.

There is absolutely no contrary evidence showing bad moral character.

And the hearing officer based his ruling, not on any insufficiency or inadequacy in the evidence on record, but expressly and solely on the failure to answer the questions.

And the failure to answer the questions was not evidence.

As to this ground, this case is governed by the Konigsberg case.

In Konigsberg, an applicant for admission to the bar, submitted good character evidence, but he refused, on First Amendment grounds, to answer questions about Communist Party membership.

The California Board of Bar Examiners held that because of this refusal to answer, the applicant had failed to prove good moral character and had failed to show that he did not advocate violent revolution.

The Court held that the -- that giving such effect to silence as to overcome affirmative evidence of good character was so unwarranted and that the exclusion of the applicant was so arbitrary and discriminatory that it denied the applicant due process and equal protection.

I want to turn now to the second ground given for denying the petitioner's eligibility for suspension.

Subsection 19 (d), as I've pointed out, provides that the suspension provisions of subsection (c) are not applicable to aliens who are deportable under various statutes including the Anarchist Deportation Act.

And the Anarchist Deportation Act was amended to include members of the Communist Party.

The Court of Appeals held that by refusing to answer the Communist questions, the petitioner had failed to carry his burden approving that he was not deportable as a member of the Communist Party and therefore, had failed to carry the burden of showing that he was not disqualified from suspension relief under the provisions of subsection 19 (d).

Now, this ground also was not advanced by the Board of Immigration Appeals.

And I think that the ground is wrong, and clearly wrong, for the simple reason that the petitioner did not have the burden approving, the nonapplicability of the Anarchist Deportation Act, and the other statutes referred to in Section 19 (d).

Since he did not have the burden of proof, he cannot be held disqualified for failing to carry a burden that was not his.