United States ex rel. Hintopoulos v. Shaughnessy

PETITIONER:United States ex rel. Hintopoulos
RESPONDENT:Shaughnessy
LOCATION:Quality Photo Shop

DOCKET NO.: 205
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 353 US 72 (1957)
ARGUED: Mar 04, 1957
DECIDED: Mar 25, 1957

Facts of the case

Question

  • Oral Argument – March 04, 1957 (Part 2)
  • Audio Transcription for Oral Argument – March 04, 1957 (Part 2) in United States ex rel. Hintopoulos v. Shaughnessy

    Audio Transcription for Oral Argument – March 04, 1957 (Part 1) in United States ex rel. Hintopoulos v. Shaughnessy

    Earl Warren:

    Number 205, United States of America, on the relation of Anastasios Hintopoulos versus Edward J. Shaughnessy.

    Jay Nicholas Long:

    Mr. Chief —

    Earl Warren:

    Mr. Long.

    Jay Nicholas Long:

    — Justice, may it please the Court.

    This case it involves two Greek citizens.

    Both of whom were regularly engaged in the seafaring occupations aboard the same vessel, following their marriage in the late 1950.

    The petitioner wife about seven months after her marriage and after several arrivals in the United States found herself expecting their first child and came ashore for a medical checkup.

    During which time the doctor has indicated to her that she should stop travelling because it would jeopardize the well-being of the unborn child.

    The husband, nevertheless, continued sailing and only when the ship was again ashore did he stay ashore and for pleading of his wife until such time as the child should be born, going to the fact to the wife was completely alone here.

    Now, the petitioner wife gave birth to their American citizen child in November 1951 and in January 1952, in accordance with the then prevailing law, both petitioners applied for privilege of suspension of deportation in order to prevent serious economic detriment of their American citizen child pursuant to the Immigration Act of 1917 as amended, which provision of law had been enacted by a modification law in 1940, not for the purpose of giving special benefits to illegal aliens but for the purpose of protecting the interests of American citizens or legal American residents who were dependent upon these illegal aliens.

    I am anxious to make that distinction because of the subsequent events that come about with the new Act of 1952.

    Now, following their application for this change of status in January of 1952, they were accorded a hearing in May 1952.

    At which time, the Immigration Hearing Officer found both petitioners fully qualified for this relief they requested, that is suspension of deportation.

    But he decided that he would not give them this privilege despite the fact they were fully eligible for him in his own words because of the fact that he felt there was too great a reward to accord them because of the accidental birth of their infant child in this country.

    Despite the fact, as I pointed out before that the whole purpose of the Act of 1917 as amended, Section 19 (c) is to protect this very American citizen child.

    The counsel at that time took a — that appeal from the adverse decision of the Hearing Officer, and it is interesting to note that the Board of Immigration Appeals did not act on this appeal until March 1954.

    Now, of course in the mean time, the Immigration Act of 1952 had been enacted on June 27th, 1952, it went into effect on December 24, 1952.

    And in March 1954, when the Board handed down its decision on the appeal, it affirmed the decision of the Hearing Officer, it agreed that the aliens were qualified for suspension of deportation but again denied them that privilege without really indicating any proper reason for it.

    Whereas I submit that under the Act of 1917 as amended and by a great number of decisions here in the Court handed down by the Board of Immigration Appeals itself, they are supposed to ascribe proper reasons for denying or granting this discretionary relief.

    As a matter of fact, I have highlighted a case of Judge Bandy that came down on December 24th, 1952.

    Specifically, because the fact that he went to great pains to show the exact procedure that was then applicable in a case such as the one that needs to be reported toward at this thing.

    Following to this adverse decision of the Board, I came into the case in the spring of 1954 and I made a motion to reopen.

    And at that time, for the first time, the Board in considering my motion to reopen indicated that it have also taken into consideration the restrictive evaluation for this privilege of suspension of deportation that had been formulated under the Act of 1952, which I respectfully submit was error on the part of the Board.

    And I say that because the Act of 1952 has the saving clause in Section 405, which expressly states that the Act 1952 should not be applicable to any applications for the privilege of suspension of deportation that were pending prior to June 27th, 1952, when the Act of 1952 was enacted.

    And it was on that basis that I was thereafter forced to seek a writ of habeas corpus in the District Court of New York.

    Harold Burton:

    Didn’t you see —

    Jay Nicholas Long:

    And —

    Harold Burton:

    — that the Board had turned down this suspension before the Act of 1952 and then turned down again after the Act of 1952?

    Jay Nicholas Long:

    No, sir.

    They turned it down after the Act of 1952 was enacted.

    Jay Nicholas Long:

    Despite — but I am pointing out that in their second decision in response to my motion to reopen, that for the first time indicated that they were taking the — the elements and evaluation for the privilege of suspension of deportation that had been formulated under the Act of 1952.

    They so stated in their —

    Harold Burton:

    When is it they first turned it down?

    Jay Nicholas Long:

    The first time they turned it down they — theoretically, were premising it on the rules prevailing under the Act of 1917.

    But in that case, I contend, that they did not ascribe any reason for denying.

    Harold Burton:

    When was that?

    Jay Nicholas Long:

    That was in March 1954.

    As I have pointed out that they left at quite a long time to go by, during which time of course the Act of 1952 had come into existence.

    And I — I believe that there — there was unquestionably even in March 1954, the new rules in their mind when they affirmed the decision, the adverse decision of April 1952 of the Hearing Officer in New York.

    Harold Burton:

    There’s nothing in this to show, is it?

    Jay Nicholas Long:

    No, but in the subsequent decision of May 1954, I — they — they expressly indicate that they are influenced by the Act of 1952.

    As the late Judge Frank also points out in his dissenting opinion in the court below.

    Tom C. Clark:

    When did the Hearing Officer first denied?

    Jay Nicholas Long:

    The Hearing Officer first denied this case in May — on May 29th, 1952.

    Tom C. Clark:

    That’s before 1952 Act?

    Jay Nicholas Long:

    That is right, sir.

    Tom C. Clark:

    There is now, based on the 1917 Act.

    Jay Nicholas Long:

    It was supposed to be, yes.

    And —

    Earl Warren:

    Mr. Long, if we should agree with you, what would be the position, legal position of your clients?

    Jay Nicholas Long:

    Well, if you should agree with me then — then of course my clients, having been found eligible by the very findings of the Hearing Officer himself for the privilege of suspension of deportation under the Act of 1917.

    They would then of course have the case remanded to the Board of Immigration Appeals for a finding consistent with such a decision on the part of this Court.

    And thereafter, the Board would make a favorable recommendation to Congress for suspension of deportation under the Act of 1917, applicable to these petitioners and the Congress would in due course act upon that recommendation.

    Earl Warren:

    If we should remand it then would there be any discretion in the Attorney General in this matter or do you consider that on the findings of the Hearing Officer and original finding of the Board that the Attorney General would be bound?

    Jay Nicholas Long:

    Well, I’ll come to that later in my brief, Mr. —

    Earl Warren:

    You — you go right ahead.

    Jay Nicholas Long:

    — Mr. Chief Justice.

    Earl Warren:

    Don’t — don’t bother answering that.

    Jay Nicholas Long:

    I’m anxious to make that distinction because of my learned opponent has placed a lot of weight on the Jay versus Boyd decision of this Court.

    Earl Warren:

    But please do it in your own —

    Jay Nicholas Long:

    All right.

    Earl Warren:

    — in your own time.

    You don’t need to do it now.

    Jay Nicholas Long:

    Now, I respect the —

    Felix Frankfurter:

    May I ask — may I just ask this —

    Jay Nicholas Long:

    Yes, sir.

    Felix Frankfurter:

    — that your argument means that whatever may be derived — that nothing may be derived from the policy governing disposition in 1952?

    Jay Nicholas Long:

    Well, naturally, if the 1952 Act prevails in this case there will be no benefit at all to the petitioners because of the additional words in his discretion.

    Felix Frankfurter:

    I am talking about assuming — the Chief Justice’s question, assuming you prevail in your view, does that mean that the policy that it — that 1952 must be shut out of the consciousness of all the authorities?

    Jay Nicholas Long:

    Precisely, Your Honor.

    Yes.

    And that is the exact point that was held by the late Judge Frank in the Circuit Court of New York.

    Well, then —

    Felix Frankfurter:

    That is as a matter of construction, isn’t it?

    That is as a matter of construction (Voice Overlap)

    Jay Nicholas Long:

    Well, now, that’s a — that’s an interesting question, Mr. Justice Frankfurter, because there have been cases that I have cited in my brief here which point out that if the alien is eligible for discretionary relief under the old Act, a denial of that discretionary relief must offer justification.

    Otherwise, of course, there is an arbitrary and capricious act on the part of the Board which would be subject to an appeal.

    Felix Frankfurter:

    What I meant is that Congress different things put before?

    Jay Nicholas Long:

    Yes, Congress has different things under the new Act and of course —

    Felix Frankfurter:

    But was not relating to prior —

    Jay Nicholas Long:

    But it expressly exempts prior cases under its own saving clause.

    That is precisely my point.

    Felix Frankfurter:

    What I want to know is that’s your argument?

    What I want to know is that whether Congress would have to — is there — are there constitutional issues lurking which will lead to one construction or rather another?

    That’s my real question.

    Jay Nicholas Long:

    Under the old law?

    Felix Frankfurter:

    Is there — are there — are there constitutional question which would have to be based at the construction other than that for which you contend?

    Jay Nicholas Long:

    Well, as I have pointed out here —

    Felix Frankfurter:

    I don’t mean to argue it.

    I just want to know whether your contention is that this raises constitutional question and therefore the statute must be very restrictively — therefore the —

    Jay Nicholas Long:

    I think there — there is a constitutional —

    Felix Frankfurter:

    All right.

    Jay Nicholas Long:

    — question there.

    Yes, sir.

    When the District Court handed down its decision in 1955, the District Judge acknowledged that the Board of Immigration Appeals had been influenced by the Act of 1952 and took the position that the Attorney General could take into account the new standard laid down by Congress.

    This is precisely the error of law on which I appeal to the Court of Appeals and thereafter came before this Court for a writ of certiorari.

    And it is exactly on this point that the late Judge Frank and the Circuit Court points out that the District Judge in recognizant of the Board took into account the new standard laid down by the Congress in the Act of 1952, was actually acting improperly.

    In that, he failed to recognize the saving clause and the rights preserved to the petitioners under that saving clause.

    The — the examiner didn’t, as I understand it, consider that he had to take into account the new provisions of the new Act, did he?

    Jay Nicholas Long:

    Well, as a matter fact, we hardly examined a rule on this case in May 1952.

    The new Act was not —

    For the Board.

    Jay Nicholas Long:

    — in the picture at all.

    I mean — I’m sorry.

    The Board.

    Jay Nicholas Long:

    The Board, of course, did not — was not suppose to.

    I contend was not suppose to take into consideration the new standards at all.

    And the fact of the matter is that in May 1954, in response to my motion to reopen and reargue they acknowledged that they had been influenced by the new standards.

    And what I was getting at the theory of Judge Frank, his dissent as I read it is that he interpreted what happened as indicating that the Board on rehearing had felt bound by this new standard.

    And therefore, he said the case should go back to free the Board of that kind of a restriction which (Voice Overlap) —

    Jay Nicholas Long:

    Well, but he — he felt that the Board had — had made an error by virtue of allowing the new law to restrict the birth of the discussion — discretion that they were suppose to exercise.

    And therefore that it was an illegal act from their part.

    Of course he was the minority opinion and the majority opinion sustained Judge Dawson of the District Court.

    Well, that’s a different thing from saying that if the Board did not consider that it was restricted, that it could nevertheless not take the new standards into account, it’s a different thing, isn’t it?

    Jay Nicholas Long:

    Well, of course, if the Board had never — never gone into the question of the new Act and new standards, and had —

    You wouldn’t be here (Voice Overlap) —

    Jay Nicholas Long:

    Precisely.

    Yes.

    Harold Burton:

    Supposing, instead of a — a new act, there’s been new book published would it — would this been all right for the Board to take that into theory?

    Jay Nicholas Long:

    Well, I don’t think that this Court would be very anxious to endorse a policy like that either.

    Jay Nicholas Long:

    Because I think that they — the — the Court is anxious to preserve whatever rights these petitioners are entitled to.

    And that was the whole purpose of the saving clause.

    Harold Burton:

    The saving clause is there but the application of it continues on and the person who would — who administer makes up a discretion to the test of his knowledge probably and test of his right.

    Jay Nicholas Long:

    And yes —

    Harold Burton:

    (Voice Overlap) read from books?

    Jay Nicholas Long:

    And is — and is also bound to ascribe proper reasons for that under the saving clause.

    Now, that’s — that’s the whole point of — that Judge Bandy had made in his decision that I have cited here.

    That in proceeding under the old Act, there were certain definite rules and regulations that had to be followed by the Hearing Officer and by the Board of Immigration Appeals, step by step.

    If they granted or denied a discretionary relief, they had to ascribe reasons for it.

    And that was not done here in the original decision.

    And then on my motion to reargue, they for the first time indicated that they had been influenced by the new standards of the Act of 1952, which I contend is an error of law because the Act of 1952 had no application here by virtue of its own saving clause.

    Felix Frankfurter:

    Suppose the Board had out of its own thought, of its own imaginings, I don’t know about it, its own imagination, not (Inaudible) at large.

    They first thought about these things and — and put in the reason that it found in the policy of the 1952 Act.

    It says nothing about that Act or any either of you please know such as act had — had been passed, would you fell that — that in doing so, indulge it in a — in conduct unrelated to the deposit of this question given?

    Jay Nicholas Long:

    Well, if they used language that would indicate that they were influenced by the — by the new Act of 1952 —

    Felix Frankfurter:

    I’m assuming there was no such act in existence.

    Jay Nicholas Long:

    Yes.

    Felix Frankfurter:

    But that they — but they thought about this matter.

    When was this in 1952?

    Jay Nicholas Long:

    The matter first came into the picture in the beginning in 1952, yes.

    Felix Frankfurter:

    Suppose this kind of thing was in the area before and that they put it on paper as their own reasoning, although no act have been passed or is even in the legislative mill, would you have said that that consideration travelled so far out of bounds or what was relevant to the exercise of discretion that the Court would have to strike it down as arbitrary?

    Jay Nicholas Long:

    Yes, I would — I would take that position because I would — I would contend that they were bound since they found the persons eligible under the Act of 1917 to either — to — to grant them the privilege that they had applied for.

    Felix Frankfurter:

    But is it — is the granting of the privilege automatic if it —

    Jay Nicholas Long:

    No, it’s not automatic.

    But on — on — but they must ascribe reason for denying it.

    And unless that reason has a good foundation, such as a political antecedent or a criminal background, something like that, then I believe the courts would take the position that it has been arbitrary exercise of discretion on their part, but it is quite capricious.

    Felix Frankfurter:

    I agree with that.

    Jay Nicholas Long:

    Particular — particularly, what we bare in mind that the Act of 1917 is for the purpose of protecting the American citizen, relative of these aliens, not the aliens themselves.

    Felix Frankfurter:

    What was the policy that they have derived from the Act of 1952 which they then thought was relevant to the exercise of their discretion?

    Jay Nicholas Long:

    Well, the whole point is that under the Act of 1952, the Attorney General is given a much finer line of delineation in — in exercising the privilege of suspension of deportation, it’s strictly in his discretion.

    Jay Nicholas Long:

    The words in his discretion did not exist before.

    And as a matter of fact, that is the point made by this Court in — in analyzing the Jay versus Boyd decision when it handed down that decision.

    And naturally, under the Act of 1952 in adding those three words in his discretion, they have greatly restricted the granting of this privilege and have made it a much more difficult (Voice Overlap) —

    Felix Frankfurter:

    Where is the —

    Jay Nicholas Long:

    — to accomplish.

    Felix Frankfurter:

    Where is the statute of — that confined him under the — where is the 1917 statute?

    I — I’ve been — he wasn’t untrammeled before, wasn’t — he wasn’t trammeled?

    Jay Nicholas Long:

    No, sir.

    On page —

    Felix Frankfurter:

    Now, what freedom did he have?

    Jay Nicholas Long:

    On page 14 —

    Felix Frankfurter:

    What page?

    Jay Nicholas Long:

    On page 14 of my brief, sir.

    Felix Frankfurter:

    On the merit?

    Jay Nicholas Long:

    Yes.

    Felix Frankfurter:

    Speak on the merit.

    All right.

    Where is it?

    On top of the page or about —

    Jay Nicholas Long:

    No, at the lower part.

    There was —

    Felix Frankfurter:

    In the case of an alien?

    Jay Nicholas Long:

    That is right, sir.

    William J. Brennan, Jr.:

    What page did you say, Mr. Long?

    Jay Nicholas Long:

    14, sir.

    William J. Brennan, Jr.:

    Thank you.

    Jay Nicholas Long:

    On the brief.

    Felix Frankfurter:

    Well, now, what — forget about — forget about actual reference to the statute, the 1952.

    What is it that, intrinsically, the Board drew upon that it couldn’t have drawn upon in the Act that it stood in 1940?

    Jay Nicholas Long:

    They have — but that’s that, Mr. Justice.

    Jay Nicholas Long:

    The Board, when they handed down their second decision in May 1954, acknowledged that under the Act of 1952, the granting of suspension of deportation was dependent on a more severe — a more severe acid test by way of granting — part of a personal fault.

    But in other words, it became not a matter of serious economic detriment but in their own words — I’m reading it from page 12 of the argument where Judge Dawson says, “The bill accordingly established the policy that the administrative remedy should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable.

    Hardship or even unusual hardship to the alien or to his spouse, parent, or child is not sufficient to justify suspension of deportation.”

    That of course has made the standard for granting this privilege a very restrictive one and something very difficult to accomplish since the Act of 1952 came into effect.

    And on the other hand, under the Act of 1917, if the aliens were found eligible by virtue of good moral character and certain other rules of thumb that have been set — set down by law and regulation.

    Then, because of the fact that it was the intention to protect the American citizen dependent, the privilege would be granted to the alien applying for.

    Felix Frankfurter:

    Now, may I trouble you, Mr. Long, to get out of —

    Jay Nicholas Long:

    Yes, sir.

    Felix Frankfurter:

    — the argumentation of abstraction to this extent.

    Judge Hincks, the court below agreed that suspension could not be determined on the basis of the 1952 Act.

    Jay Nicholas Long:

    That was right, sir.

    Felix Frankfurter:

    They further found and concluded that, in fact, suspension was not on the latter act, is that right?

    Jay Nicholas Long:

    That was their position.

    Felix Frankfurter:

    Yes.

    Now, what I want to know is this.

    What concrete considerations, not saying we decide this under the 1952 Act which has brought us suspensory — non-suspensory powers but what item, what consideration stated, not as an abstraction that one is more than the other.

    What was the consideration, which in Judge Hincks’ view was not an application of the 1952 standard but was a fact allowable to be taken into consideration until — under the 1940 authority?

    Jay Nicholas Long:

    Well, as I interpret the decision of the — of the majority of the Court of Appeals, they take the position that the — that the law is a living thing that is constantly subject to new interpretations and new analysis.

    Felix Frankfurter:

    We often hear that argument that’s —

    Jay Nicholas Long:

    Yes, sir.

    Felix Frankfurter:

    — the power of this Court.

    Jay Nicholas Long:

    Yes, sir.

    And that the Board had every right to take into consideration these new standards.

    Felix Frankfurter:

    Not as standards.

    Jay Nicholas Long:

    Not as standards but by way of a general consideration and they go on to — to point out that they still believe that the Board did not actually base its decision on that but on the old Act, whereas Judge Frank makes a distinction that how can they possibly have taken into consideration these new standards when they had no business to do so by virtue of the saving clause of the Act of 1952.

    Felix Frankfurter:

    Well, Judge Hincks says they didn’t.

    Jay Nicholas Long:

    Well, of course —

    Felix Frankfurter:

    Judge Hincks says —

    Jay Nicholas Long:

    That’s why we’re before this Court.

    Yes, Your Honor.

    Felix Frankfurter:

    I know.

    Well, therefore, that’s why you have to — from my point of view, establish a fact that although he said they didn’t take the standard into account, in fact they did.

    I don’t mean to say that Judge Hincks isn’t the most scrupulous man in the world if he — I believe him to be, scrupulous as anybody.

    But what is it that led him to say, they took into consideration a fact or a factor that was relevant but not the law of 1952?

    Jay Nicholas Long:

    That’s — that’s a little bit difficult to put my finger on, Your Honor.

    They — they took the same position.

    Judge Hincks took the same position as Judge Dawson that the Board could recognize the new standards that had been formulated in connection with the Act of 1952 without —

    Felix Frankfurter:

    Taking them into account?

    Jay Nicholas Long:

    Taking them into account.

    And of course that’s the — that’s the puzzler that has caused me, of course, to come before this Court contending that there is an error of law there.

    I say of course that that whole — that — that any consideration whatsoever of the new Act or of the discussions leading to it in Congress have absolutely no part in — in coming — coming to this decision by virtue of the saving — saving clause of the Act of 1952.

    And now, as I see it, of course, the Board of Immigration Appeals took approximately a year and a half, almost two years to come to its original decision in March 1954.

    When the new Act had been existence for the better part of two years and — and they were bound to be influenced by it, and of course we’re trying to avoid any admission of it.

    It was only when I moved for re-argument that I saw of course their — their hand and they came out and admitted it in their new decision that they were influenced by it.

    And I contend that there was an error of law on their part.

    Felix Frankfurter:

    Where is the language of the Board in which they said that, Mr. Long?

    At page 15 of the record?

    Jay Nicholas Long:

    Yes.

    In that first full paragraph on page 15 of the record, where they say in that line it is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation.

    Felix Frankfurter:

    I’m looking for the past sentence, which we interrupt in this decision.

    Hugo L. Black:

    What do you understand in the last sentence in that paragraph?

    You said the first sentence.

    Jay Nicholas Long:

    You mean what it says in both cases, the decision of the Court?

    Hugo L. Black:

    We indicated in our previous order.

    The respondents have established a statutory trial.

    What do you understand that to mean?

    Jay Nicholas Long:

    That — that I — I consider an — an open admission on their part that they — that they themselves have denied due process of law here because they’re acknowledging that the respondents, the petitioners in this case, are eligible under the Act of 1917 and therefore should have been granted the privilege of suspension of deportation.

    Felix Frankfurter:

    Well, that — that statement implies that everybody who is eligible must have suspension granted?

    Jay Nicholas Long:

    No.

    No, I wouldn’t make — I would take that position here, Mr. Justice Frankfurter.

    Felix Frankfurter:

    Well, you couldn’t — you can’t take that, can you?

    Jay Nicholas Long:

    No, sir.

    Because under the Act of 1917 there — there are certain — certain considerations that — that have to be acknowledged.

    Now, the whole point is that if the exercising of discretion under the old Act does not set forth proper reason, then of course you have the question of arbitrary and capricious conduct on the part of the Board.

    And that is what I contend here because having found the alien, the petitioners eligible under the old Act, if they denied them that privilege they have to ascribe proper reason for it.

    And no proper reason was ascribed when the Hearing Officer stated that they can’t get this kind of a privilege just because of the accidental birth of a child in this country.

    The whole point is that that child is the one who was supposed to be protected under the Act of 1917.

    Felix Frankfurter:

    There they originally ruled to suspend their — they recommended against (Inaudible) suspension.

    Jay Nicholas Long:

    That is right, sir.

    Felix Frankfurter:

    May we then ask for a rehearing and they reconsidered it?

    Jay Nicholas Long:

    That is right.

    Felix Frankfurter:

    Suppose they had said that while some hardship is worth nevertheless we conclude it.

    The suspension — suspension should now be exercised in favor of this applicant.

    They then said we are confirmed in this conclusion in the Congress instead of making us — indicating we should be more merciful or — or more generous in our — in our disposition, it’s indicated that in its policy it turned to be steeper.

    So instead of reconsidering, we are confirmed.

    Suppose they’ve said that would you have a case?

    Jay Nicholas Long:

    Well, I would say yes.

    I would — I would say yes because I would say that they have no right to consider the — the new Act of Congress or by virtue of its — of its saving clause judgment.

    Felix Frankfurter:

    I should be with you without question.

    I’m not saying I’m — I’m against you even though my question is indicating I’m trying to be against you.

    But I should be with you clearly if they had originally ordered that suspension — the recommended suspension.

    And then the Government had come in and said, “Look, Congress vindicated you but as much as we saw, the word isn’t mine but that (Voice Overlap) —

    Jay Nicholas Long:

    That is right, sir.

    Felix Frankfurter:

    And then they said, “Well, in light of that, we now realize we have been too easygoing.

    That we now see that — although we act under the old Act, we shouldn’t be so easygoing.”

    I think that would be wonderful, but if they denied suspension and then say we are confirmed in this conclusion by what is indicated that’s not meant to be an alleviation but a harshening, if you will, of the requirement.

    Jay Nicholas Long:

    Yes, sir.

    Felix Frankfurter:

    I don’t see that they didn’t fairly acted on that.

    They simply found confirmation that there shouldn’t be any easier going than they were in their original conclusion.

    Jay Nicholas Long:

    Well, as I have indicated in my brief, I have many number of cases cited of the Board itself that shows — that each of which shows that in granting suspension of deportation, time after time, they were going on the basis of protecting the American citizen or legal resident alien dependents of the aliens.

    Felix Frankfurter:

    Suppose they haven’t granted a rehearing?

    Well then granted a rehearing, they wouldn’t have to give a rehearing or do they?

    Jay Nicholas Long:

    No, they don’t have to.

    Felix Frankfurter:

    Suppose they haven’t granted the rehearing, what would be your position?

    Jay Nicholas Long:

    That they were acting on arbitrary and capricious manner.

    Felix Frankfurter:

    On the original one?

    On the original —

    Jay Nicholas Long:

    Well, that their — their complete failure on their part to — to exercise proper discretion.

    Felix Frankfurter:

    In the original order?

    Jay Nicholas Long:

    That is right, sir.

    Felix Frankfurter:

    I see.

    Oh, well.

    Well, then — then the gravamen of your position is not that they drew on the 1952 Act but that they got confirmation for what already was lawless?

    Jay Nicholas Long:

    Well, of course I came into the picture after their first decision —

    Felix Frankfurter:

    Well —

    Jay Nicholas Long:

    — and I contended, of course, that they have not properly exercised their discretionary powers after having found both petitioners eligible for suspension of deportation.

    And therefore, I ask for reconsideration, and it was in response to that that they then brought in the new standards.

    Felix Frankfurter:

    They said we stand on that and we’re strengthened in our view.

    Jay Nicholas Long:

    Yes, and we’re strengthened our view in part of the new standard which —

    Felix Frankfurter:

    What I’m suggesting —

    Jay Nicholas Long:

    — of course I say was entirely improper on their part.

    Felix Frankfurter:

    What I’m suggesting to you is that if you convince the Court, at least one member of it about his concern, that their original examination was arbitrary and baseless in law.

    You don’t have to worry about 1952.

    You don’t have to worry about —

    Jay Nicholas Long:

    That’s right.

    Felix Frankfurter:

    — their resort to 1952.

    On the other hand, I have the greatest of troubles, if you can’t do that as to the original finding that that is cut from under because they find reinforcement.

    Jay Nicholas Long:

    Well, I have made that point in my — in my brief, Your Honor, in — in this respect.

    I have pointed out that an — on the basis of their original decision, not having ascribed proper reason for granting the discretionary privilege after finding them eligible for it that there was an arbitrary and capricious act on their —

    Felix Frankfurter:

    Well, I hope you —

    Jay Nicholas Long:

    — part.

    And I cite several — several court decisions that are strictly on that point.

    Felix Frankfurter:

    I hope it will seem to you — desirably in the use of your remaining time that you deal with that a little bit, because if you establish that and you didn’t bother about the 1952 Act.

    William J. Brennan, Jr.:

    May I ask one question, Mr. Long?

    Jay Nicholas Long:

    Yes, sir.

    William J. Brennan, Jr.:

    Did you, on your motion for reconsideration, suggest that the Board had in fact, in its first determination, applied the 1952 standards rather the 1917 standards?

    Jay Nicholas Long:

    I raised the question.

    William J. Brennan, Jr.:

    Well, I — did you charge that in the motion or how did you do it?

    Jay Nicholas Long:

    I have to go back a little on my whole record on that, Your Honor.

    But as I recall in my motion for reopening and reconsideration, I did raise the question of the new standard set down by the Congress by way of pointing out the distinction and the importance of preserving the rights of the petitioners under the old Act as against the new Act.

    William J. Brennan, Jr.:

    Yes, but did you affirmatively suggest that the Board’s original determination, which as I understand it, came down to 1954, two years after the 1952 Act came on the books?

    Jay Nicholas Long:

    Yes.

    William J. Brennan, Jr.:

    Did you affirmatively suggest that they had determined, made their original determination on the 1952 standards?

    Jay Nicholas Long:

    No, I don’t believe I did that, Your Honor.

    Well, the whole point is that the original decision of the Board as it came down in March 1954, affirming the decision of the Hearing Officer, acknowledged that these people were eligible for suspension of deportation but denied them that privilege without giving them any proper reason for it.

    And I contend, as I have pointed out in a number of decisions cited in my brief, that they were bound to give proper reason for denying this, otherwise they were acting in an arbitrary and capricious manner.

    I have cited —

    William J. Brennan, Jr.:

    In other words, does that — does that go this — along this line that the eligibility requirements having been met?

    Jay Nicholas Long:

    Yes.

    William J. Brennan, Jr.:

    And conceding that discretion?

    Nevertheless, is vested that despite satisfying the eligibility premise is nevertheless discretion under the 1917 Act whether or not to grant suspension.

    If they’re going to deny it, admitting the eligibility requirements were met, they have to ascribe reasons for the denial?

    Jay Nicholas Long:

    Precisely.

    William J. Brennan, Jr.:

    And your point was that that had not been done in the initial determination?

    Jay Nicholas Long:

    That is right, sir.

    Isn’t the trouble with that though, Mr. Long, that the examiner gave reasons and all the Board did was to say, we reviewed the examiner’s report and agree with him.

    Jay Nicholas Long:

    Well, of course I contend that the — the examiner’s reason were actually a hollow thing, a shallow thing that they were —

    But he gave them.

    Jay Nicholas Long:

    Well —

    He gave them.

    Jay Nicholas Long:

    — when he — when he contended that — that the — it was an abuse to the detriment of people waiting in long — in long lines on the quota lists.

    As I pointed out in my brief, when it’s to referring to quotas that are oversubscribed to the — past the year 2000, it’s a — it’s actually a sham argument on the part of the Hearing Officer.

    Particular instance, when the Act of 1917 was amended in — in 1940, it was provided that under these circumstances not more than 50% of the annual quota of these countries could be hypothecated by virtue of taking away numbers for people to whom the privilege of suspension of deportation would be given.

    And when you’re speaking now of a quota for a country that is oversubscribed to the — to pass the year 2000, it becomes a — a completely academic argument because we are really concerned fundamentally under the Act of 1917 with preserving the right of the American citizen dependent of the alien and not the alien himself.

    And then you have to shift your ground somewhat because it isn’t — your position then would be not that he gave no reasons but that the reasons that he gave were inadequate and they should be reversed —

    Jay Nicholas Long:

    Were inadequate —

    — as an abuse of discretion.

    Jay Nicholas Long:

    Precisely.

    As I pointed out when I say that when he — when he makes a statement of this is too great a reward to give these aliens by virtue of the accidental birth of their child in America.

    I think that he is — is acting into the tongue-in-cheek and is acting in a very arbitrary manner because we’re not concerned about that, we’re concerned about that very American child that was born here or be (Voice Overlap)

    Felix Frankfurter:

    That isn’t all we are concerned about.

    You can’t — you can split up the whole Immigration policy which to me is full of outrageous objects.

    You can’t just call out one consideration in the case of our system that has all the purposes, as I say hardships and cruelty that I think it has and say we must construe it merely with reference of their child.

    Otherwise we talk about writing legislation, otherwise big enough to deal with that.

    Jay Nicholas Long:

    No, but as the courts have held number — a number times, Mr. Justice, if — if they’d rendered denied this discretionary privilege under the old Act, they must give a good and — good and bonafide reason.

    Otherwise, there’s no question that their acting in a capricious manner.

    There you have that as recently as 1915 in the Mastrapasqua case which I have cited.

    But in 1953, you have the (Inaudible) case here in the district and then you have the (Inaudible) case in the district as well.

    Now, all of these have taken the position that unless the Board of Immigration Appeals gave proper reason for denying or granting discretionary relief, there was an abuse of discretion on their — on their part which would be subject to judicial review.

    Felix Frankfurter:

    A proper — I understand something that’s rationally related for the task of judgment.

    But I’m — what I would do, I can assure you I do very different things in most of these cases.

    Earl Warren:

    Mr. Roberts.

    Maurice A. Roberts:

    May it please the Court.

    I should like to advert briefly to some of the facts which were before the Hearing Officer and the Board of Immigration Appeals when they rendered their discretionary decision in this case.

    The petitioners applied for admission to the United States as seaman in pursuit of their calling.

    They were granted surely for the length of time their vessel was to remain in port and in any event not to exceed 29 days.

    They remained.

    A female petitioner did not tell the immigrant inspector that she was pregnant at that time.

    They never applied for an extension of stay and they never revealed their unlawful presence here until two months after their child was born.

    At that time and that was roughly six months after the female petitioner had arrived, five months after the male petitioner had arrived, they appeared at the office of the Immigration Service in New York and stated, “We are here unlawfully,” and they filed their applications for suspension of deportation on the ground that their deportation would result in serious economic detriment to their newly born child.

    Maurice A. Roberts:

    The Hearing Officer conducted their hearing on May 29th, 1952, a month before the 1952 Act was even enacted.

    He found that they have established —

    William J. Brennan, Jr.:

    I thought the 1952 Act did — wasn’t enacted from December 1952?

    Maurice A. Roberts:

    It took effect in December of 1952 but it was enacted on June 27th, 1952.

    The Hearing Officer found that they had established the statutory requirements for eligibility to suspension.

    He found that there was serious economic detriment to their child and that they were persons of good moral character and that they were not aliens ineligible to citizenship and the other items which the statute required.

    But in the exercise of discretion he felt that this bounty, the maximum bounty which the statute provided, suspension of deportation should not be granted to them.

    And instead he granted the lesser bounty of voluntary departure for which they had applied in the alternative if —

    Felix Frankfurter:

    They were deported, well, because they came here unlawfully?

    Maurice A. Roberts:

    He found them deportable because they were really immigrants at the time of arrival rather than non-immigrants.

    Felix Frankfurter:

    Where?

    Maurice A. Roberts:

    He found that — that they had an undisclosed intention not to depart with their vessel.

    And therefore, they were immigrants and needed visas which they did not have.

    Now, in — in denying this discretionary relief of suspension, he stated clearly why he felt the petitioners did not merit this relief and his reasons are set forth in his opinion which is set forth in the record appearing at page 7.

    At page 9 of the opinion — of the Hearing Officer’s opinion he states, “It is not believed that as a matter of administrative discretion the respondent’s application for suspension of deportation should be granted.

    They have been on the United States for a period of less than one year.

    They have no relatives in this country other than each other and their son.

    To grant both this form of relief upon the accident of birth in the United States of their son would be to deprive others who are patiently awaiting visas under their already oversubscribed quotas.

    It is noted also that neither respondent reported his and her presence in the United States at any time until January 1952 when they filed applications for suspension.”

    So that it cannot be said that the Hearing Officer ascribed no reason for the denial of suspension.

    Felix Frankfurter:

    Mr. Roberts, would you mind dealing with the point that my Mr. Long raised that I’m ignorant about.

    Suppose there are 100 illegally entered Greeks, would that affect those waiting for visas to come here?

    I don’t mean merely on his mathematics but on generally?

    Maurice A. Roberts:

    As a matter of fact, Mr. Justice Frankfurter, in this particular case it is not the Greek quota which would be affected at all.

    Felix Frankfurter:

    I’m sorry.

    I thought these are Greeks.

    Maurice A. Roberts:

    These are Greek nationals but the record brings out that the female petitioner was born in Russia and the male petitioner was born in Turkey, and under the Immigration laws it is the country of birth which determines the quota rather than the country of nationality.

    Felix Frankfurter:

    And Turkey has a very low quota.

    Maurice A. Roberts:

    Turkey has a low quota and both the Russian and the Turkish quotas are oversubscribed.

    Although, they are not mortgaged nearly so heavily as the Greek quota.

    Maurice A. Roberts:

    So that counsel’s reference to the fact that this is a very impractical reason ascribed by the Hearing Officer is not — is not accurate.

    Actually, I’ve been informed by the State Department that the — the waiting list on the Turkish quota is until 1965.

    And apart from that I see the —

    Earl Warren:

    We’ll recess now, Mr. Roberts.