Kimm v. Rosenberg

PETITIONER:Kimm
RESPONDENT:Rosenberg
LOCATION:Fleetwood Paving Co.

DOCKET NO.: 139
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

Question

  • Oral Argument – May 16, 1960
  • 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.

    Charles E. Whittaker:

    Wouldn’t the statute say he should have to work?

    Joseph Forer:

    No, sir.

    There’s a difference between the eligibility requirements set out in Section 19 (c).

    And this, I think, will answer your question, Justice Whittaker.

    19 (c) establishes eligibility requirements which are stated as preconditions to the power of the Attorney General to grant suspension in his discretion.

    19 (d) is an exception to 19 (c), not a precondition, but an exception.

    Now, there is no question but that as to the eligibility preconditions of 19 (c), the alien has the burden of proof.

    But the contrary is true, with regard to the exceptions provided by Section 19 (d).

    And this is so for several reasons.

    First of all, in general, persons don’t have the burden of negativing exceptions.

    The person claiming that an exception is applicable has the burden of proving it.

    That is reinforced in the present case by the contrast and the text between the preconditions which the alien must prove and has the burden of proving, and the different way in which exceptions were carved out by Section 19 (d).

    Furthermore, if the alien has a burden of proving that he is not within the exception on 19 (d), then, then he has unreasonable burden of proving not only a negative, but a whole host of negatives.

    He has prove not only that he’s not or never was a member of the Communist Party, he also has the burden of proving that he was not an anarchist, that he was not a dope kind of smuggler and so forth.

    Now, the fact is that it is not reasonable to suppose that Congress intended that the applicability of Section 19 (c) would be a triable issue in the suspension hearing as distinguished from the deportation hearing.

    I suggest that Congress assume that if an alien were in fact within one of the deportable classes referred to in Section 19 (d), that would have been an issue which would have been charged and proved against them in the deportation preceding problem.

    And Congress just did not seem to have in mind the possibility that the alien might have been charged in the deportation proceeding with one cause for deportation but of course not with in 19 (d), but that he might also be subject to deportation for another uncharged cause, which was within Section 19 (d).

    Maybe it wasn’t charged because it was not known to the service, maybe it wasn’t charged because the service couldn’t carry the burden of proof.

    But I think all Congress had in mind was at Section 19 (d) would automatically preclude or even holding suspension hearings in cases where the charge for deportation was a — a cause such as anarchism, Communism and so — prostitution, of course, listed in 19 (d).

    Otherwise, if you assume as the Court of Appeals did that the alien must prove in the suspension proceeding that he is not deportable, on the various grounds referred to in Section 19 (d), you get what is virtually an impossible situation.

    Consideration of a suspension application becomes necessary only after the alien is found deportable.

    The suspension hearing is only ancillary to the deportation hearing.

    Under the Court of Appeals theory, the ancillary deportation hearing, the ancillary hearing, the suspension hearing has to become a kind of second deportation hearing.

    And in the second deportation hearing, you have to determine with the burden of proof on the alien that the alien is not deportable on some ground additional to that already charged and found against them.

    Well, I just don’t think that Congress so intended it and it — it somewhat is an unworkable system and I think therefore, it is fair to conclude that the alien does not have the burden of disproving 19 (d).

    And therefore, that ground advanced by the Court of Appeals is wrong.

    Now, let me come the third ground in —

    Charles E. Whittaker:

    Before you leave that, may I ask you —

    Joseph Forer:

    Yes.

    Charles E. Whittaker:

    Are you saying that the regulation 151.3 (e) is invalid?

    Joseph Forer:

    I am not — I think the regulation is ambiguous because I am not sure whether they represent the regulation to condition — to the burden of proving eligibility.

    It also means the burden of disproving disqualification under 19 (d) as distinguished from proving a — a conformance to the eligibility conditions, preconditions of 19 (c).

    If the regulation is broad enough, to put on the alien the burden of disproving 19 (d), then, I say that is invalid because it is not justified by the statute.

    Now, let me go to the third reason.

    And this is the reason that is at least principally and perhaps solely briefed by the Government, and that was advanced by the Board of Immigration Appeals.

    The reason — this reason goes as follows.

    They say the questions answered of the petitioner were pertinent questions and were proper for the Attorney General to answer, because after all were proper for the Attorney General to ask because after all, if — if the alien in fact gave an affirmative answer, then he wouldn’t — he would be disqualified.

    Now, they say after all the Attorney General had a right to ask the questions they were pertinent, not only that, but the alien is seeking a favor.

    Therefore, the petitioner had a duty to answer the questions.

    By refusing to answer he breached the duty and this made him ineligible eligible for suspension.

    And I think that is a fair summary of the argument of the argument of the — made by the Board of Immigration Appeals and by the Government’s brief.

    And the shorter it is that the Board of Immigration rule, Board of Immigration Appeals Rule, that is to say condition to eligibility that the alien answer questions of the Attorney General if those questions are pertinent to Section 19 (d).

    Now, I think this reason is wrong in the first place because it creates a condition, a requirement for suspension eligibility that is not provided by the statute and that goes beyond the conditions that are provided by the statute.

    Congress provided certain specific conditions before an alien could be eligible for suspension.

    It also spelled out the disqualifying exceptions of 19 (d).

    Now, Congress did not spell out the discretionary factors which the Attorney General could take into account once the alien was found eligible.

    But what we’re talking about now is eligibility, because petitioner was found ineligible and the Board of Immigration Appeals found that the Attorney General could not exercise his discretion.

    Now, the fact is that although the statute specifies the conditions for eligibility, and although it specifies the disqualifying factor of alien deportable under 19 (d), it does not say that one of these conditions is if the alien answered questions of the Attorney General or that he cooperate with the Attorney General.

    Felix Frankfurter:

    The Congress defined the procedure or the evidentiary mode by which the Attorney General should be satisfied or if the conditions are fulfilled?

    Joseph Forer:

    Did they?

    Felix Frankfurter:

    Did they.

    Joseph Forer:

    No, Your Honor, they did not.

    Felix Frankfurter:

    So that how you still ascertain the conditions under which he is to act were left to his own sense of appropriateness into the ascertaining correct?

    Joseph Forer:

    Yes, I — I think that is correct, but I don’t think that as part of his right to investigate and ascertain, he had the right to put substantive and important conditions on eligibility which are in addition to those required by the statute.

    Felix Frankfurter:

    He didn’t do it?

    Joseph Forer:

    Well —

    Felix Frankfurter:

    After — I come back to my question of yesterday.

    How can his delegates determine what is legal limiter?

    Joseph Forer:

    Well, he’s delegates it then.

    And I will comeback to that — that question of the delegation power at the end, Mr. Justice Frankfurter, if I may defer that issue for a moment.

    Joseph Forer:

    Now, nor does the statute say that a refusal to answer the questions of the Attorney General, or a refusal to cooperate with the Attorney General is a disqualifying effect that — within Section 19 (d) or anything else.

    Assuming that the — it was proper, for the Attorney General to inquire whether the petitioner was a member of the Communist Party body, and assuming that the questions were pertinent, it doesn’t follow that the petitioner had a duty to answer the questions nor does it follow that the consequence of his not answering is that he became ineligible for having this application considered.

    On the contrary, even if a general obligation to cooperate were read into the statute and if something that has to be read in to be read in, this would be overwritten in this case by the Fifth Amendment which gives a privilege to be silent in circumstances where there is otherwise a duty to answer.

    But I say that there are good reasons why the Court should not read into the statute a provision that answering the Attorney General’s questions even to the point of surrendering the privilege against self-incrimination is a condition to eligibility for suspension.

    Felix Frankfurter:

    The — that argument means that if the Attorney General assuming you have done this, himself found, wrote, “I cannot establish whether this man does or does not come within 19 (d), because all the channels of communication — the only available channel of communication are made inaccessible to me, and therefore, I deny the grace which the — the dispensation of which Congress has placed in my chart.”

    Do you think that –and he couldn’t do that?

    Joseph Forer:

    Well, it depends on the — did he — in what he said did he hold that the alien was ineligible, or did he say he was not going to do this as a matter of discretion because there is a difference.

    If the question is, could the Attorney General say that he is ineligible to help me exercise my discretion —

    Felix Frankfurter:

    Do you know the — or because he hasn’t —

    Joseph Forer:

    — because he —

    Felix Frankfurter:

    — nor himself —

    Joseph Forer:

    — because I can’t tell, whether he is disqualified.

    Felix Frankfurter:

    But that is not why I can’t tell you and for himself within the relieving of the statute.

    Joseph Forer:

    Within?

    Well, because he hasn’t shown that he is not within 19 (d) then, I say that is beyond the power of the Attorney General.

    That is my argument.

    Yes, sir.

    Otherwise, first you have to read a condition in the statute that isn’t there.

    And it seems to me that to put such a condition into the statute requires a policy judgment preferring the policy of the Anarchist and Communist Deportation Statute to the policy of the Fifth Amendment.

    On the one end —

    Felix Frankfurter:

    But the question is as a matter of law — but if he cannot tell — if he hasn’t the basis of making up his mind, he must grant relief.

    Joseph Forer:

    It depends on what he cannot tell, Mr. Justice Frankfurter.

    If the alien has — if he cannot tell on matters on which the alien has the burden of proof, then of course, he’s — it may find the alien ineligible.

    If he cannot tell on matters on which the alien does not have the burden of proof, he may not find the alien ineligible whether or not he may use that as a factor in his discretion, is an entirely different question.

    But here, we are just dealing with eligibility.

    Now, if you —

    Felix Frankfurter:

    So he can’t just close his mind at all and no Court has mandamus and to disclose his mind and just deny the application.

    Is that right?

    Joseph Forer:

    I — I’m afraid I didn’t catch that.

    Felix Frankfurter:

    He need not just close his mind, he just denies it.

    Joseph Forer:

    The Attorney General?

    Felix Frankfurter:

    Yes.

    And no Court could mandamus in order to set forth the reason for his denial or could it?

    Joseph Forer:

    I think not, but actually in practice, the determination — in the present case, we don’t have that situation.

    In the present case, they found the alien ineligible.

    And the question of what discretion would have been exercised is not before — before us because it has not been exercised.

    Felix Frankfurter:

    Do you think in the case like this, there is really an effect and a difference in finding him ineligible and denying him relief?

    Joseph Forer:

    There certainly is.

    Felix Frankfurter:

    You think there is?

    Joseph Forer:

    Yes, sir.

    Felix Frankfurter:

    Although, you can circumvent completely by not doing anything?

    Joseph Forer:

    I don’t think — think you can circumvent it completely it.

    Or you mean the Attorney General could?

    Felix Frankfurter:

    Yes, the Attorney General could.

    Joseph Forer:

    Well, I’m — I’m not absolutely certain in my mind that he could.

    I don’t think he should and I don’t think that this —

    Felix Frankfurter:

    Well, I’m not talking about should.

    I’m assuming the —

    Joseph Forer:

    Well —

    Felix Frankfurter:

    — Attorney General is a conscientious official.

    Joseph Forer:

    Well, on that assumption, I don’t think he would.

    Maybe he could, but I don’t think he would.

    Felix Frankfurter:

    If he is doubtful in his mind and he may have a good hunch, but not substantiated as it would be in the Court of Law because the issue here isn’t that kind of substantiation.

    Joseph Forer:

    But if that’s the way he feels maybe he should exercise his discretion.

    Felix Frankfurter:

    That doesn’t work as far as I’m concerned.

    He exercises discretion because he has ased on others to make a judgment but it followed.

    Joseph Forer:

    All right, but — and he has — he has no right to hold the alien ineligible because the statute gives conditions for eligibility.

    Felix Frankfurter:

    Do you think that’s just what it’s saying?

    I — I’ve denied it because he’s red headed.

    Joseph Forer:

    No, that would be an abusive discretion.

    Joseph Forer:

    But I don’t think he is entitled to say that red-haired people are — that you have to be red-haired or you have to be black-haired before —

    Felix Frankfurter:

    He isn’t saying that.

    He is dealing with the category as to which Congress had imposed a duty off on him.

    And he says, if you brought my means of establishing that that category is satisfied or he is not satisfied.

    Joseph Forer:

    Yes.

    Felix Frankfurter:

    And you’ save the Fifth Amendment by that use of that mode of discharging a duty.

    Joseph Forer:

    I think so, but at the moment, I wasn’t saying that.

    At the moment, I was saying that it seems to me you should not read into the statute a condition, the effect of which is to strip the alien of his privilege as a condition to getting suspension, because this imposes adverse consequences on the utilization of the privilege.

    Now, it’s true that if you don’t read in the condition, it is possible that despite the Attorney General’s investigatory resources, some areas might get suspension even though they would be disqualified if all the facts were known.

    But I don’t think it is a hard choice between favoring the privilege and favoring the Anarchist Deportation Act.

    First, I think the constitutional policy should be favored over the statutory policy.

    And secondly, I think from the varied case this Court has seen, the Communist deportation provisions don’t appear to be or something short of being decided.

    Now, this does not mean that the Attorney General must hopelessly watch aliens flaunt the statute by getting suspension relief to which they are not entitled just by keeping quiet.

    In the first place, the alien must affirmatively prove that he needs the eligibility conditions which are in the statute and which are listed in subsection 18 (c) including the requirements as there as this includes character.

    In the second place, if the Attorney Generals inquiries aren’t answered by the alien, the Attorney General can ask them of somebody else.

    And in fact, he does.

    In the third place, if an alien is uncooperative, the Attorney General can take that into account in determining whether he should grant suspension as a matter of discretion.

    If the alien doesn’t give a good reason for non-cooperation or his reason does not have constitutional justification, the Attorney General can, if he wishes, deny suspension in the exercise of his discretion.

    Charles E. Whittaker:

    Wouldn’t it seem to you more direct to ask the person?

    He is most likely to know mainly the petitioner who is asking for consideration?

    Joseph Forer:

    Yes, I – I don’t deny it.

    I don’t say that the Attorney General did anything wrong in asking him the question.

    I’m just saying that he can’t disqualify the alien for refusing to answer it on the base of his privilege.

    The fact that it’s a very direct, the natural thing to do, doesn’t make it a condition to the statute.

    And the fact is that my view with the statute gives the Attorney General more power and more authority than the Government’s view.

    The Government view makes it impossible for the Attorney General to exercise his discretion whenever the alien refuses to answer relevant questions.

    No matter how good a reason the alien has, no matter whether the reasons are constitutionally protected, no matter what all the circumstances are.

    Now, in the Lerner, Beilan and Nelson cases, this Court held that a municipality has the power to discharge an employee, for refusing on constitutional grounds, including the privilege against self-incrimination, to answer questions on Communist membership which the municipality had asked or had directed the employee to answer.

    Now, I think there are two reasons why these cases do not support the Government here.

    In the first place, those cases merely upheld the power of the State to discharge employees for a silence claimed to show a lack of candor or insubordination.

    Joseph Forer:

    But the initial question here is not a question of power.

    It’s a question of what Congress did in the statute.

    And as I have tried to point out, Congress prescribed only certain factors which would disqualify an alien for suspension.

    It did not prescribe non-cooperation with the Immigration Service as a disqualification.

    And in the interest of the constitutional privilege, you should not, is what I have been saying erect such a requirement by interpretation.

    In the second place, I think that Congress does not have the power to do what you permitted the States to do in Lerner, Beilan and Nelson.

    Those cases did not directly collide with the privilege against self-incrimination, although there were strong dissents of these cases.

    But those cases didn’t directly collide with the privilege because you’ve held that the privilege is not finding on mistakes, but it does collide directly with the Fifth Amendment for the Federal Government to make an alien ineligible for suspension on account of a privilege of silence.

    And it — and you can’t say that this after all, is not a sanction on the use of the privilege because the sanction is applied on account on the alien’s silence without regard to whether he was silent on the basis of a claim of the Fifth Amendment, or whether he was silent for other reasons.

    Because after all, the thing that is privileged by the Fifth Amendment is the silence.

    It is not the words by which the right to the silence is involved.

    So, if as in this case, you impose denial of suspension eligibility because of a silence which admittedly was privileged by the Constitution, then it seems to me that you are imposing an adverse consequence on the use of the Fifth Amendment, or the use of the privilege.

    And that is something that I don’t think the Attorney General was authorized to do, that I don’t think should be done.

    In fact, I think it is compulsion and therefore violates the Fifth Amendment.

    Now, at an intermediate stage, the — the Commissioner’s Office, in an intermediate appeal between the Special Inquiry Officer and the Board of Immigration Appeals held not that the alien was ineligible but that they would deny a suspension on the grounds, abuses discretion because the claim is privileged.

    Both the Government and I feel that that question is not here because although this was an exercise of discretion by the Commissioners Office, it was not an exercise of discretion by the Board of Immigration Appeals which under the regulations was the last delegate of the Attorney General.

    If the question is here, I — I think that it was an abuse of discretion and even unconstitutional, but since we have both agreed that it’s not here since I am convinced that this is not, I’ll leave the matter to my brief.

    But I do want to return now to the point that Mr. Justice Frankfurter raised.

    The first thing I want to point out is that the hearing officer and the Board of Immigration Appeals held that the petitioner was ineligible for suspension and deportation.

    They did not and under their theory, they could not exercise the Attorney General’s discretion because they expressly held that the petitioner did not qualify for discretionary consideration.

    For this reason alone, it seems to me, this case does not involve any problem as to whether an alien who is found eligible for discretionary consideration is entitled to have the discretion exercise not merely by the Attorney General’s delegates but by the Attorney General himself.

    Felix Frankfurter:

    This is worse because by this mode, they shut off an opportunity to persuade the Attorney General, that he can exercise his discretion because he has lawful power to do so.

    Joseph Forer:

    It is — I don’t think it is any worse than the deportation finding itself which is universally accepted and approved, can be delegated by the Attorney General.

    In other words, there is no right to an appeal to the Attorney General from the finding of deportability.

    Felix Frankfurter:

    Does that statute vest specific power in the Attorney General?

    Joseph Forer:

    Oh, yes the statute gives the Attorney General the power to deport and he has delegated that to a special — not under the present —

    Felix Frankfurter:

    And it — and it hasn’t held that if a person wants to appeal to him, he — it wouldn’t lie — the appeal wouldn’t lie, like it held?

    Joseph Forer:

    Yes, I think so and that —

    Felix Frankfurter:

    This Court has held that?

    Joseph Forer:

    Yes.

    Felix Frankfurter:

    When?

    Joseph Forer:

    And — and I looked — I’ll — I’ll come to that in the circumstance of this case in a moment.

    But first, I want to mention the regulations which were in effect at this particular time.

    Under the regulations, then in effect, and for that matter, under the regulations now in effect, there’s been a change in wording, but not in substance.

    Decisions by the Board if Immigration Appeals, whether they were decisions on deportability or decisions denying suspension, were not appealable by the alien.

    As I pointed out yesterday, the decisions to the Board of Immigration Appeals were final unless the Attorney General himself decided to take the case from the board or unless the chairmen of the board or the majority of the board decided to refer the case to the Attorney General.

    Felix Frankfurter:

    How, practically could he take it himself — could he move if he doesn’t know anything about it —

    Joseph Forer:

    Well —

    Felix Frankfurter:

    — but he can make an appeal then.

    Joseph Forer:

    I don’t know, but that’s what the regulation said.

    Now, the regulations also said that the Commissioner could request that the case be referred to the Board.

    Under the present regulation — the Commissioner make such a request.

    It could be referred to the Attorney General.

    Under the present regulation, if the Commissioner makes such a request, it will automatically go to the Attorney General.

    Under the regulations that were in effect to 1951, the request had to be concurred in by the Board.

    The Attorney General’s regulations directed the Board to ask the Board of Immigration Appeals to exercise his discretion expressly.

    And in Jay against Boyd, decided by this Court in 1956, this Court expressly held that even as to the exercise of discretion, there is no doubt it said, that the discretion conferred upon the Attorney General by statute in suspension cases, maybe delegated by him to hearing officers, which review by the Board of Immigration Appeals and need not the exercised by the Attorney General in person.

    Now, what happened here is that the alien talked — the only administrative remedy that was available under the regulation, if the regulation was invalid in Jay against Boyd indicates that is not invalid.

    Nevertheless, as far as the alien is concern, he exhausted his remedy, I’ll reserve whatever time I have left.

    Earl Warren:

    You may.

    Mr. Davis.

    John F . Davis:

    Mr. Chief Justice, if the Court please.

    It is of prime importance in this case to understand that the issue of Mr. Kimm’s membership or not in a Communist Party arose not in connection with a determination as to his deportability, but in connection with his application for suspension of deportation.

    Mr. Kimm is being deported, not because he is a Communist, but because he has failed to maintain his status as a student.

    Certainly, when he came to this country in 1928 in order to college, no one contemplated that he was going to remain a student for 32 years.

    And in fact, there isn’t any dispute that he has not done so.

    His own evidence as introduced in the case, and the concessions made by the counsel in his brief and in this Court indicate that he has not been enrolled in college or any educational institution since about 1938, some 22 years ago.

    And there is also no question that under the law, his failure to maintain his status as a student is a basis for deportation.

    On this issue his membership in the Communist Party is immaterial.

    And in fact, his failure to answer has no significance.

    John F . Davis:

    But Congress has provided in order to ameliorate the hardship cases that even when an alien is clearly deportable, and has been found to be deportable, still as a matter of grace, he may remain in the country so long as he fulfills certain specific conditions.

    And one of these conditions is that he not have been a member of the Communist Party.

    In which because this is one of the conditions that the hearing examiner asked Mr. Kimm whether or not he was a member, was currently a member, presently a member of the Communist Party, Mr. Kimm refused to answer, in the first place, claiming the First Amendment and the Fifth Amendment.

    Now, we — we shall assume — I shall assume during the remainder of the argument that Mr. Kimm was perfectly within his rights in claiming the privilege in both respects that no one could have directed him to answer and that no implications can be drawn from his refusal to answer.

    But the fact that he was privileged to remain silent, doesn’t answer the question as to whether or not he has sufficiently supported his application for suspension, so that he can complain because of its denial.

    I think the situation is not materially different than he saw — he’d refused to answer this question for no reason at all.

    He told the hearing examiner that for his own personal reasons, he preferred not to answer the question.

    Now with respect to these suspension proceedings, this Court has twice dealt with the — with the suspension power in recent years.

    One — in one case was Jay against Boyd — Boyd in 351 United States and the second case was Hintopoulos against Shaughnessy, in 353 United States.

    That in both these cases, the Court recognized that the suspension of deportation is a — is a grant which is similar to suspension of a criminal sentence of a grant of a parole of — or grant of probation.

    It’s a — it’s an ameliorating right given to the — to the officer who’s — has the duty to — in particular cases, make them see penalty or others remedy, less harsh than as otherwise would be.

    Judge Learned Hand has likened it to the President’s pardoning power.

    Thus, in making this kind on application to the Attorney General, the alien is in effect, throwing himself upon the mercy of the Attorney General.

    But the Attorney General has no authority to grant this right unless the alien has met the statutory conditions.

    One of those, as I say, is that he not be a member or not have been a member of the Communist Party.

    Now, the question, first question is, is that a proper condition to put in here?

    Well, this Court has considered, in connection with deportation, in several cases, whether or not membership in the Communist Party is a proper basis for deportation itself and has upheld the constitutionality of statutes which provide for deportation in the case of past membership in — in the Communist Party.

    Most recent of these cases was — he was very termed and new at the case.

    Earlier, they passed upon it the question Galvan against — you passed upon it in Galvan against the Press and counts the ideas against Shaughnessy.

    Now, if it’s a proper basis for actually determining that a man is to be deported, it seems that it would follow automatically, that it’s a proper basis for qualifying for special relief.

    As we see the situation, this condition is analogous to a man making an application for a driver’s permit and being asked whether or not he has good eyesight.

    Now, he may want to refuse to answer but he has good eyesight for one reason or another and perhaps he, perhaps he is in his — within his rights to refuse to say, but he has good eyesight.

    But certainly, he is in no position to complain when he doesn’t get a driver’s permit when he refuses to tell the — the people who were testing him whether he has good eyesight.

    Or a lawyer who is applying for admission to the bar might well be asked on his form, whether he had ever been disbarred in any other jurisdiction.

    Now, presumably the lawyer would want to be silent on this question.

    And if he — if he wished to be silent I’m sure no one would force him to — to answer, but he is not then on a position to complain if — if the admitting Committee refuses to consider his application.

    Earl Warren:

    Mr. Davis, I was — I was wondering about the probation situation that you equated this to.

    Suppose a man was up for probation under a statute, that said that the probation, a person who would — thrice been convicted of a — of a felony was not eligible to probation.

    And suppose there’s nothing in the record to indicate that he was a — a two-time looser and the — the judge on the probation hearing asked him, “Have you ever been convicted of felony?”

    And he declined to — to answer.

    Earl Warren:

    Would that support a judgment by the Court that the man was ineligible to probation because he had failed to establish that he was not twice convicted of a felony.

    Would the man — what I’m asking is, would the man not be entitled to have the Court — to exercise his discretion on the probation by saying, “Well, I’m not satisfied that this man ought to have probation, but still, he would be eligible because it hadn’t been established against him, that he was — had been — been twice convicted.

    John F . Davis:

    I’m inclined to think in that case — I think it depends somewhat on the probation system —

    Earl Warren:

    Oh, yes.

    John F . Davis:

    — and whether it was —

    Earl Warren:

    Yes.

    John F . Davis:

    — right or whether it’s privileged, but I think in most cases that if they would — if the — it the probation officer is going to — they would have to show, if they’re going to deny it on that basis, they would have to have some record.

    I don’t think his failure to — to answer could be taken in that case as — as binding from — from the example.

    Earl Warren:

    Well, of course, he could exercise his discretion and —

    John F . Davis:

    That’s right.

    Earl Warren:

    — its a —

    John F . Davis:

    That’s right.

    Earl Warren:

    Yes.

    John F . Davis:

    It would depend I think, Mr. Chief Justice, on the nature of the procedure which you set up.

    And the procedure as I see it, this man really has a right to have his consideration for probation unless he is.

    Earl Warren:

    Yes.

    John F . Davis:

    And — and then it’s — I think it’s a different situation from here.

    Well, this man is — it’s more like the pardoning power really than it is the kind of probation that you’re thinking of, where he’s throwing himself really on the mercy of the — of the Governor entirely.

    There may be some thought that this is different because this question deals with political beliefs.

    If — in connection with the — with the Communist Party.

    But I submit to Your Honors, that there are circumstances where it’d be entirely proper to ask a man whether he was a Republican or a Democrat.

    Certainly, if a man was nominated for a position for a Commissionership in the Federal Power Commission of the Security and Exchange Commission where the law requires that not more than three members of the Commission based from anyone party.

    It’s entirely appropriate, indeed, it’s necessary to inquire of this man or find out in someway whether or not the man is a Republican or a Democrat.

    This isn’t because it’s holding it against the man, one way or the other, but it’s a legal — it’s a legal requirement for the job and the only way to find out is, or the appropriate way to find out is to ask the man.

    Now, what we have to do in appraising this situation, I suppose, is to fit this case into the pattern of the cases which have been before this Court in the last few years with respect to claims of privilege against incrimination in the Communist — in connection with questions on the Communist Party.

    These cases stretched from American Communications Associations against Douds to the decision of the Court this term in Nelson & Globe against Los Angeles.

    And I think in the first place, we ought to realize that this is not a loyalty oaths type of case.

    This isn’t a kind of case where — in order to — for one reason or another, a man is required to take an oath that he — that he does believe in certain things, or that he doesn’t.

    This is a mere question.

    What happens after the question is answered is another thing, but it’s not a — it’s not the kind of loyalty oath that you find in — well, it was one of the requirements in American Communications Commission against Douds, was the oath rather than the affidavit end of it.

    John F . Davis:

    And I think that the Pfizer against Randolph case is also the kind of case where the man is required to take a — a loyalty oath as such.

    Now, the second thing we must, I think realize is that this is not in itself and by nature a direct limitation on speech.

    This isn’t like the text in Pfizer against Randolph where the very purpose of the text was to restrict the man’s beliefs.

    Here we have a provision and an immigration law which says that this privilege shall not be granted if the man is a member of the Communist Party.

    And the question is asked in order to obtain information to fit within that statutory framework, so that if there is the limitation on — on speech, it goes back to the — to the regulation itself, the regulation as to the — the privilege of the suspension not being available rather than to the asking of the questions.

    Now, in the third place I want to point out that here the question is very specific.

    It’s not a question of affiliation with organizations that sponsor certain concepts.

    Here, there’s a definite question, “Were you a member of the Communist Party?”

    So that there’s no — that’s not the breadth for ground for doubt as to the man has no question.

    He can — he can answer it yes or no.

    And in the last place I want to point out that here we have a question of present membership rather than past membership.

    This is particularly important when it comes to questions of whether he is sufficiently proved his — his good character.

    When — when we have cases like the Konigsberg case or the Schware case which deal with past memberships, which may — may have been — been as long ago where the man is — is — has proved his present good character, maybe there is ground to — to — which this Court has held there is — or suggested there is ground for the past that past membership by itself doesn’t — isn’t enough to cast a shadow of the man’s character.

    But I doubt very much that those cases could uphold a question of whether question of present membership has nothing to do with the man’s character.

    So, I think when — when we put this case into the framework of the other cases decided by the Court, this really falls within those class of cases where the Court has upheld the right of employing states to ask question of their employees in order to find out whether they are fitted to hold their jobs, but they’re — they are — except — except I may say that this I think is a stronger case because in those cases, a man’s job will be taken away from him if he refuses to answer.

    And this is may be closer to the case where a man is applying for a position and where in connection with his application for a job, he is asked whether or not he is a member of the — of the Communist Party.

    Certainly, I think in that case, the Court would hold that this is in inquiry which is within the scope of the authority of the employing agency and that the man should be required to answer.

    What do you say about the question of exhaustion namely that the Attorney General is never —

    John F . Davis:

    Well —

    — given the opportunity to —

    John F . Davis:

    The — this — this case comes specifically under the 1940 Act, the alien — that’s where the suspension provision comes in.

    Section 37 (a) of the Alien Registration Act says, “The powers conferred upon the Attorney General by this Act — this is one of the powers, upon the Attorney General by this Act and all other powers of the Attorney General relating to the administration of the Immigration and Naturalization Service maybe exercised by the Attorney General through such officers of the Department of Justice including officers in the Immigration and Naturalization and Service as he may designate specifically to such —

    Felix Frankfurter:

    What is the — what’s the citation for that?

    John F . Davis:

    This is Section 37 (a) of the Alien Registration Act of 1905, that’s — was codified — was 50 — 54 Stat. 670 and it used to be codified as 8 U.S.C. 451.

    Charles E. Whittaker:

    54 Stat what?

    John F . Davis:

    54 Stat. 670.

    Charles E. Whittaker:

    Thank you.

    John F . Davis:

    There is a similar provision in the law to date.

    Since then we have the 1952 Act and the 1952 Act in Section 103, that’s codified because the present code has a similar —

    Felix Frankfurter:

    Someone referred — those citations, the one referred to those — those — the statute, the one referred to in Jay against (Inaudible)

    John F . Davis:

    Jay against Boyd?

    Felix Frankfurter:

    Jay against Boyd, was it?

    I don’t think so —

    John F . Davis:

    There the — well, what was referred to specifically against — in Jay against Boyd was the —

    Felix Frankfurter:

    Like — like —

    John F . Davis:

    — authority of the regulation —

    Felix Frankfurter:

    Yes.

    John F . Davis:

    — which — which delegated the authority.

    I — I can’t remember of the time when Jay against Boyd, so I can’t remember what the authority to make the delegation was.

    Felix Frankfurter:

    1950s, but — but I — I.

    John F . Davis:

    1956, it must have been the 1952 Act.

    Felix Frankfurter:

    Yes.

    There is a difference to me between delegating the — the ascertainment of facts to use the usual categories for exercising a discretion and delegating a construction of the statute which completely bars — yes, —

    John F . Davis:

    No, then —

    Felix Frankfurter:

    — then a while ago, exercising the discretion.

    John F . Davis:

    That is right.

    In these cases —

    Felix Frankfurter:

    I mean the argument made by Mr. Forer here, is that — that the Board of Appeal here lay down a rule of law.

    John F . Davis:

    Yes.

    Felix Frankfurter:

    And that added to the statute a restrictive requirement as to eligibility, not eligible within the — to application as a recognized category, but constituting or infusing a new category.

    John F . Davis:

    I — yes, I understand that design.

    Felix Frankfurter:

    And I think that’s different from Jay against Boyd, isn’t it?

    John F . Davis:

    Well, yes.

    Of course, it arises — they don’t lay down a rule of law as a —

    Felix Frankfurter:

    Quite a few, but —

    John F . Davis:

    — like a regulation or like a legislature, they decide in particular case.

    Felix Frankfurter:

    But if — what I — what my ears heard from what you read a minute ago, that statute seems to be explicit as though Congress had said in this — this act of grace maybe exercised either by the Attorney General or anybody whom he so designate.

    John F . Davis:

    That is the way we understand it.

    And —

    Felix Frankfurter:

    Well, that’s the short answer.

    John F . Davis:

    And this — I may say probably this is necessary, too.

    This — in the — in the (Inaudible) case, the question was asked the counsel as to the volume of cases where there was suspension and what — and what Congress had done with them and in — after the argument, a letter of March 29 was addressed to the clerk at this Court from the Solicitor General describing the — the nature, how many of these cases there were.

    And we find that there were — in this period which was covered — it’s a five-year period from 1954 to 1959, there were 6665 cases that were — which were covered.

    And it’s apparent that the Attorney General this time passed upon these cases automatically that has to be some weeding out.

    Felix Frankfurter:

    I have a sense of guilt because if you are right, and in fact you are, then the whole foundation of my dissenting and Jay against Boyd, was cut from under.

    John F . Davis:

    Well —

    Tom C. Clark:

    Is that the reason for — the decency to take the adverse ruling of the Board to the same case.

    John F . Davis:

    No, they’ve three ways that they can get to the Attorney General.

    He can do it informally and they often do, I’m sure.

    But it goes from the Board of — and this has always been so since the Board of Immigration feels has been setup I think, Mr. Justice Clark.

    The three ways that it can go from the Board of Immigration Appeals to the Attorney General, one is, if the Board of Immigration Appeals refers it.

    Two is that the Commission of Immigration asked that it be — he — he’s dissatisfied with the rule of law that’s the Board of Immigration, or three, if the Attorney General, himself, becomes interested in the case.

    Now, I suggest that — and he asked for it.

    I suggest that it’s quite proper and it must happen.

    I can’t give you statistics on it.

    That counsel for immigrants who are dissatisfied would write a letter to the Attorney General saying, “The Board of Immigration Appeals has made this determination and we ask you to look at this and see if you don’t want to review it.”

    And then he can or cannot review it.

    Felix Frankfurter:

    I’m impenitent if the statute doesn’t express the delegate in saying that if such power is vested in the Attorney General, he can’t rid himself completely by saying it’s all that down Congress subordinate, and the practical considerations don’t bother me very much because in the generality of cases, it wouldn’t operate.

    It would operate so as to allow such delegation.

    John F . Davis:

    Yes.

    Felix Frankfurter:

    But that without statutory authority, he can close the door and in case something — as to which the Congress thought he’d named the Attorney General to do something that he can roll this off on a subordinate, it troubles me (Inaudible).

    John F . Davis:

    Yes, but as I —

    Felix Frankfurter:

    But the only (Voice Overlap) —

    John F . Davis:

    — I say that the statute, that Congress itself —

    Felix Frankfurter:

    What you — you’ve — all that —

    John F . Davis:

    Yes, sir.

    Felix Frankfurter:

    I think I have no trouble about Congress having power to do that, none at all.

    Hugo L. Black:

    Does the statute provide any qualifications for the people to whom this power might be delegated by the Attorney General?

    John F . Davis:

    No, it would make (Voice Overlap) —

    Hugo L. Black:

    (Inaudible) delegation of the cause, and just like anybody he wants to —

    John F . Davis:

    That is right.

    Hugo L. Black:

    — pass on that this matter and exercise it and that’s fine.

    John F . Davis:

    Well, no it’s —

    Hugo L. Black:

    (Voice Overlap) —

    John F . Davis:

    — it’s not final, because he has setup a procedure for —

    Hugo L. Black:

    I’m not talking about — I’m talking about as far as statute is —

    John F . Davis:

    No.

    Well —

    Hugo L. Black:

    If there’s a statute provided.

    John F . Davis:

    No, the statute — that’s — you’re quite right.

    Hugo L. Black:

    He’s got whatever —

    John F . Davis:

    The statute doesn’t — wouldn’t require any appeals at all I think.

    Hugo L. Black:

    It requires no appeal —

    John F . Davis:

    And he couldn’t —

    Hugo L. Black:

    (Voice Overlap) to be decided by anybody, the Attorney General selects without any statutory qualifications of any time or type.

    John F . Davis:

    As far as the language —

    Hugo L. Black:

    Conversations to binding without review.

    John F . Davis:

    Well, no it’s not.

    It’s not binding without review because there is a review in the courts with — with respect to — to the fact.

    Hugo L. Black:

    Under the statute?

    John F . Davis:

    Under the interpretations of the statute by this Court.

    Hugo L. Black:

    By the reason of the Board.

    What’s the —

    John F . Davis:

    No.

    Hugo L. Black:

    — reason why?

    John F . Davis:

    No, I mean a review of the decisions by the Attorney General on his designee reviewed by the courts.

    There is a limited review of the exercises of this discretion by the courts.

    Hugo L. Black:

    Because the regulations had been set up, wasn’t it?

    John F . Davis:

    No.

    No, because the — the regulations don’t provide for court review, that’s done —

    Hugo L. Black:

    I understand that.

    John F . Davis:

    — under habeas corpus or — under the — under the administrative procedure.

    Hugo L. Black:

    What — what case first held that there could be a review of the action?

    John F . Davis:

    Well, I’m not sure whether it was Jay against Boyd or not, but there has been a review of the action suspension in this Court in — in quite a few cases and to this Court comes to Jay against Boyd and Hintopoulos against Shaughnessy, and the Accardi case, was another case.

    Felix Frankfurter:

    Well, you — you’re using the word, “review” in a rather loose sense.

    Meaning by that, that you can challenge anybody who gives him authority to exercise discretion that he must exercise discretion and not — not exercise discretion.

    John F . Davis:

    That’s right.

    He couldn’t exercise the discretion — discretion for an improper purpose that’s — that was mentioned.

    Felix Frankfurter:

    Or it — it didn’t fail to exercise discretion.

    John F . Davis:

    That’s right.

    That is right.

    But as far as the statute goes there’s no — there’s no specification.

    Felix Frankfurter:

    No review, no review given the statute at all.

    John F . Davis:

    Not — not the kind of according to the terms of the fact.

    Tom C. Clark:

    First Board of Immigration Appeals (Inaudible)

    John F . Davis:

    Oh, yes.

    Well, I — as far as the regulations go, the — the —

    Felix Frankfurter:

    Well that much be before (Voice Overlap) —

    John F . Davis:

    The Attorney General has made careful provisions, I don’t mean present Attorney General.

    The — the Attorney Generals have made specific provisions to protect these rights and to have a review not by people in the ordinary work of the Immigration Service but by the Board of Immigration Appeals which is independent, so to speak of the — of the services.

    Felix Frankfurter:

    We go back, am I wrong about this, I think they go back about the time that enforcement of the immigration laws or transfer of the Department of Labor to the Department of Justice.

    John F . Davis:

    I — I don’t really remember, it goes back along way because —

    Tom C. Clark:

    As I understand (Inaudible)

    Felix Frankfurter:

    Well, that’s when it was transferred.

    Tom C. Clark:

    We know that.

    John F . Davis:

    I think it goes back, I think — I think you’re right Mr. Justice.

    Earl Warren:

    Thank you, Mr. Davis.

    Mr. Forer.

    Joseph Forer:

    The Court, please.

    Mr. Davis, referred to a distinction between questions as to present membership and past membership as having some relevance to the issue of whether good conduct or moral character was true.

    Joseph Forer:

    But in the Konigsberg case the questions which were asked Konigsberg and which Konigsberg refused to answer related both the present and past membership.

    And the Court said that it was not only unwarranted but so unwarranted as to be unconstitutional to treat that silence as overweighing affirmative evidence and that’s what happened in this case as far as the Court below is concerned.

    Secondly, it is not accurate to say that Section 19 (d) provides that the suspension provisions are not applicable to persons who are or were members of the Communist Party.

    It says that it does not apply to persons who are deportable because of Communist Party membership, among others.

    Now, there are certain types of Communist Party membership which are not deportable as this Court has proven in the Grunewald case and in the (Inaudible) case.

    And what is emphasized is just the point I made that if you are going to go into 19 (d), it completely dislocates the suspension proceeding because it becomes a whole proceeding involving the facts relating to the court below.

    Finally, I just don’t think that the situation is advanced by comparing the situation here, the pardon and by referring to the fact that it is a matter of a favor or grace.

    The fact is that this is a favor that Congress made provisions for and Congress said certain people are eligible for the favor.

    It is also a fact that the Court, this Court has held and lower courts have held that the exercise of discretion after eligibility has been determined, is subject to court review as to abuse of discretion.

    But I still have to see where the Government, in addition to saying that the man was asking for a favor, is able to show how this particular alien who was held disqualified for that failure, failed to meet any of the conditions for the favor that were erected by Congress.

    Thank you.