Woodby v. Immigration and Naturalization Service – Oral Argument – November 17, 1966

Media for Woodby v. Immigration and Naturalization Service

Audio Transcription for Oral Argument – November 16, 1966 in Woodby v. Immigration and Naturalization Service


Earl Warren:

Number 80, John Sherman, petitioner vs. Immigration and Naturalization Service.

Mr. Gordon, you may continue with your argument.

Charles Gordon:

May it please the Court.

With the Court’s permission, I should like to spend a few moments of this time outlining the evidence.

Petitioner has chosen to concentrate on the testimony of the witness Edward Morrow.

This is only a portion of the record.

If that was the only evidence, it would concededly be inadequate.

But petitioner has conveniently grossed over some very important elements of the record which I would like to call to the Court’s attention.

Potter Stewart:

You mean, Mr. Gordon inadequate even under preponderance statute.

Charles Gordon:

Yes, under any criteria.

In totality, we believe the evidence on the record in this case would most likely satisfy any criterion of persuasion.

The evidence is summarized for the Court’s information, that’s pages 2 to 6 of our Brief.

Briefly, it is as follows.

First, there is a United States passport which was issued to one Samuel Levine in June of 1937.

Now, thoughout the proceedings, petitioner has not denied, and yesterday I heard his counsel conceived that petitioner’s photograph appears on this passport.

A witness, Samuel Robinski was called and he said, “Yes, I’m a friend of petitioner.

That is his photograph on the passport.

Petitioner asked me to go with him to the passport office and to appear as a witness on his unidentified witness on his behalf” and he said, “I signed my name ‘Robinski’ to that passport and that’s petitioner’s photograph on the passport”.

Moreover, the identifying data on the passport correspond with petitioner’s identification.

For example, he has a scar on the back of his right hand.

At the hearing, he was asked to show his hand, has a scar on the back of his right hand.

The passport shows a scar on the back of his right hand.

Next, there are documents which include notations on the passport itself which show that this passport was used.

First, there is a visa by the French Consul General in New York; couple of days after the issuance of the passport, a Visa for the holder of the passport to go to France.

Then there was a notation on the passport that the holder of the passport was admitted by the immigration authorities in France, a couple of days — a few days later when the boat ducked.

Then, there is a notation on the passport that in December of 1938, the holder of that passport again used it.

He presented that to the American Consular authorities in Barcelona and asked them to approve it for his coming to the United States.

Then, there are document, additional documents, the American Consulate in France show that a number of persons had arrived in France and these were expected to being persons who were using that passport to Spain.

Among them is less than the name of Samuel Levine And, finally, on the passport itself there was a stamp by the immigration service, showing that the holder of this passport, Samuel Levine, was admitted to the United States under that name in December of 1938.

Now, we add to that the testimony of witness Morrow.

Charles Gordon:

This is cumulative.

This is supporting evidence.

This in itself, is I say is not enough.

But added to the other evidence, it is quite impressive.

Now something about Mr. Morrow, this, as the Court indicated and counsel agreed yesterday, this is not a professional witness.

This is a reporter for the New York Times, a man who was worth as his report for over 20 years.

He himself pored in Spain and we located him after some diligent gun showing.

We found out that this person had been in Spain.

We asked him, “Do you remember this person?”

We showed this photograph.

Well, he said, “I can’t say I do.

That photograph is vaguely familiar to me.

I can’t say I don’t”.

“Do you remember the name ‘Sam or Samuel Levine?”

“That rings a bell on my mind but I can’t say.

I think there was some such fellow but I can’t say.

He was asked, “Would you want to look at the person we have in mind and see if that will refresh your recollection?”

He said, “I’d be glad to”.

So in one day when there was a hearing, unknown to the petitioner, Mr. Morrow this non-professional public expert individual, “This is the only interest, who has been telling the truth”, he said, went to the immigration office and sat down there in the lobby and observed the petitioner.

And after this observation for now, “Yes”, he said “I remember now.

This is the Sam Levine that served with me in the Spanish Loyalist forces in Spain”.

He says, “I remember it too that he went back with me on the S.S. Ausonia, with the group of his — who sailed from Spain back to the United States as the Loyalist were losing the war in 1938.

And, I remember he was on the ship at that time”.

Now I suggest that on the face of this record, the petitioner’s failure to offer any of these, none at all.

He didn’t testify, he didn’t produce any witnesses, could’ve produced document possibly, he could’ve produced witness.

He said nothing; he testified to nothing.

He just sat there and did not open his mouth.

Now, he is the person who knew the facts; he is the person that best knew the facts.

And, added to this record and on the face of this record, I think his silence is also significant.

Did I understand that you are trying to say that when he first present, he didn’t remember the picture?

Charles Gordon:

He said, “It is vaguely familiar to me”.

“Vaguely familiar”, that was all?

Charles Gordon:

That’s all he said.

He was a careful witness.

He didn’t want to comment so.

And how long was it then after that until he reach different conclusion?

Charles Gordon:

As I recall, it was about four months.

And how long was that after he had seen the man supposedly in Spain?

Charles Gordon:

Over 25 years.

25 years.

At first, he didn’t know as the vague familiarity.

Charles Gordon:

I think, sir, that this is a normal reaction that the person’s recollection can’t be refreshed as he thinks about the incidents, as he thinks of the events.

And as he sees the individual, his memory can be refreshed.

To me, this seems like the reaction of a very honest and a very sincere witness.

Do you think, Mr. Gordon that without his evidence, there was enough from the record by any criterion this Court —

Charles Gordon:

Well, I think, perhaps it might have been enough.

I would want to state —


Charles Gordon:

Because there was a witness, Mr. Robinski, who is a friend of the petitioners who said, “I went with him to the passport office and he asked me to be an identified witness”.

That is his photograph on the passport and that, together with the showing that the passport was used presumably by the same individual, it seems to me that that might be enough.

But if you add to it the testimony of witness Morrow and add to it the fact that the petitioner refused to give any evidence, it seems to be this is a pretty good case by any criterion.

William J. Brennan, Jr.:

But not as the defence is clear?

Charles Gordon:

I think it would satisfy any text.

Frankly, I think it would satisfy beyond –

William J. Brennan, Jr.:

Commit beyond reasonable doubt?

Charles Gordon:

It seems to me it would.

This is only a matter of opinion but it seems to me what we have here is an overwhelming showing that an individual who wants the petitioner obtain this passport and the passport says, “I intend to use it within the few days”.

The application says.

And, the showing is that the individual obtained this passport, went to France with his picture on it, mind you, this identifying data.

Everytime that passport is presented, somebody looks at it, compares the picture with the person who present the passport and that passport obtained by the petitioner was used in going to France and in returning from Spain in 1938.

Charles Gordon:

It seems to me that’s pretty overwhelming evidence.

At least, the factfinder (Voice Overlap) so.

William J. Brennan, Jr.:

We don’t get to assessing the evidence.

We think the Court of Appeals was wrong in understanding to–

Charles Gordon:

Well, and it shows it, the Court of Appeals just wrongly understand it then I think, Your Honor, might wish to remand it.

But if the Court of Appeals was right, that if the Court of Appeals —

William J. Brennan, Jr.:

What standard do you think the Court of Appeals thought to apply before the aboard?

Charles Gordon:

Your Honor, I think it’s very clear from the opinion of Judge Friendly that the Court of Appeals thought and I agree that the only standard applicable to this case is the one set forth in the statute.

William J. Brennan, Jr.:

Which really isn’t the preponderance to that?

Charles Gordon:

It is not.

These terms are apparent to the administrative procedure.

What Congress had in mind here was an assessment of facts by experts, by people who were trained to assess the fact and who didn’t need the —

William J. Brennan, Jr.:

Why do you think – do you think the statue where this standard is something less than a preponderance of the evidence?

Charles Gordon:

I think it’s something different, Your Honor.

I think all the statute –

William J. Brennan, Jr.:

What if we think the Board is absolutely correct in using a preponderance test and the Court of Appeals was absolutely wrong in saying standard is what the statute set?

You still have to remand because the Court of Appeals has never looked at this case through — and assessed it on a standard of preponderance.

Charles Gordon:

Well, Your Honor –

William J. Brennan, Jr.:


Charles Gordon:

Your Honor, I don’t agree.

I think the Court of Appeals, Judge Friendly said that “the standard of reasonable, probative and substantial evidence which are set forth in the two places of the statute applies to the factfinder, it applies to the Court.

William J. Brennan, Jr.:

I know but that is a reasonable, probative and substantial are both the same.

Evidence in that reply — would satis — the Court of Appeals could — that is what is in the preponderance has anyway.

Charles Gordon:

Well, Your Honor, two different test.

If I could, I would try to stay clear of preponderance because it has no bearing yet.

There is –

William J. Brennan, Jr.:

But your client has been using it for years.

Charles Gordon:

No, Your Honor, that is not so; it has been used in isolated cases.

William J. Brennan, Jr.:

It was used in this one.

Charles Gordon:

It was not used in this one.

Charles Gordon:

That is not so, Your Honor.

There was no suggestion here of any preponderance because it’s not relevant to this record.


Charles Gordon:

Well, I think it’s hide in, Your Honor; I agree.

Our view is that the statute was saying this “that in order to make a determination, the factfinder must be persuaded”.

And I don’t care if you call it preponderance or convincing –-


Charles Gordon:

And conviction on the part of the fact-finder.

Am I convinced of the truth of these charges?

Now was the factfinder is convinced of the truth of these charges?

He makes a determination.

And the only issue then under the statute and under the criteria which have been applied by this Court is, was that determination based on substantial evidence or reasonable substantial and probative evidence as the statute says.

That, as this Court has set, means that could the factfinder — could a reasonable mind sitting in the place of the factfinder have come to the same determination?

What is the standard in the deportation case?

Charles Gordon:

The standard is that what you’re talking about the standard of evidence?

The burden of proof —

Charles Gordon:

The burden of proof unquestionably is on the government to establish —

What burden?

Charles Gordon:

The burden of showing that the person is an alien; the burden of showing that he is deportable.

To what extent, what standard of burden?

Charles Gordon:

That is told to us by the statute.

It says so specifically.

Section 242 (b) says, “No decision of deportability shall be valid unless it is based on reasonable, probative and substantial evidence.”

To me, that means –

What was the opinion of Justice Mathew Roland in number years ago with reference to the burden of proof.

Charles Gordon:

Burden of proof?


Charles Gordon:

It is always been conceded, Your Honor, and it is always been stated by this Court and agreed to by the Government that the burden of proof is on the Government.

I understand —

Charles Gordon:

Your Honor, it’s not talking about the Schneiderman case.

Well, I’m talking about the weight of the burden.

Charles Gordon:

The weight?

The different weight/proof beyond the reasonable doubt persuaded to a reasonable so and so various things.

What is that, the burden of proof?

Charles Gordon:

Your Honor, those to me our terms which were developed by Courts and are relevant in court proceedings.

Here we have a factfinder, an administrative also who was trained to make determinations.

He must act on conviction.

He must be persuaded.

To what?

He must be persuaded but how?

Charles Gordon:

By substantial evidence; that is the statutory criterion.

The preponderance, by proof beyond reasonable doubt?

Charles Gordon:

Well, Your Honor, this is –

By clear, convincing (voice overlap) of proof?

Charles Gordon:

Your Honor, in the terms of this case is not relevant because there is no question of balancing evidence here.

There’s only evidence presented by the government.

The respondent presented no proof.

But the evidence, they have to agree for some —

Charles Gordon:


The question is, does the factfinder believe this evidence.

Is that all you have to say, he believes?

Charles Gordon:

He believes it and that the evidences –

(Voice overlap)

Charles Gordon:

No, the statute goes further.

It says that the evidence must be reasonable.

As we translate it, he must be reasonably persuaded by substantial and probative evidence.

Congress took pains to say that this was the standard on which the factfinder must act.


Charles Gordon:

I thank you, Your Honor.

That is exactly what the statute says.

Charles Gordon:

The statute says that “deportation” –Sec. 242 (b), which is set forth in full at page 33 of our Brief in the appendix.

It says, “That deportation procedure shall be in accordance with regulations which are prescribed by the Attorney General and includes a listing of four specific safeguards, including that the decision must be based on reasonable, substantial and probative evidence”.

And that it goes on to say that “the procedure so prescribe shall be the sole and exclusive procedure for determining deportability”.

It seems to me that Congress here reposed in the Attorney General the responsibility not only for conducting the hearings but for fashioning the procedure under which the hearings were to be conducted.

And another way of saying it, did you say that it delegated to the Attorney General the power to determine the rules, the burden of proof that was imposed on the burden of Government before the man are any matter of conflict?

Charles Gordon:

Not completely, Your Honor, because the Attorney General must bear the burden of establishing that the individual was an alien and that he is deportable.

That Attorney General bears the burden of proof and the Attorney General draws the rules on the power delegated by the Congress instead of what they are?

Charles Gordon:

Well, Your Honor, I suggest one additional fact which you might wish to taken into account.

The administrate — the deportation process has always been administrative.

This has never been a judicial proceeding.

Well whatever it is, it sends the man out of the country.

Charles Gordon:

You’re right.

And it is a procedure which must be fashioned with care and it is.

The statute spells out in great details the rules, the procedures, the safeguards which shall be applicable in those cases.

And this Court sets, in addition to those rules, to assure that due process is observed.

Now, the function of this Court, it seems to me and I submit respectfully, is not to fashion rules for administrative proceedings –

But it might not be the duty of the Attorney General to do that.

Delegation of power to the court by the Congress (Inaudible).

Charles Gordon:

Well, Your Honor –-

— serious place to put it how to draw these rules from the law to determination deportation in the hands of the Attorney General?

Charles Gordon:

I agree that it is a very serious responsibility in the Attorney General in charged with regard to the — as a serious responsibility.

But Congress has spoken.

Now if Congress has no authority, then this Court comes into this picture.

But there’s no contention to hear that Congress has no authority.

The only contention here is that Congress has not spoken.

Therefore, the Court has authority.

And it seems to me that that’s a complete non-executive.

It seems to me that the power to fashion rules, the power to fashion procedures is an administrative power and that the only time this Court comes in to the picture is if there’s a violation of due process.

That’s not charged here and it seems to me that this is not the case in which the Court shall — can be asked to fashion rules.

Mr. Gordon, has this Court ever put any gush on those words of substantial and probative evidence?

Charles Gordon:

Not this Court, Your Honor, but other Courts have.

And to what extent?

Charles Gordon:

Let me lend my statement, Your Honor.

This Court in many cases has stated that it is not concerned with the weight of the evidence with the — whether the decision of the factfinder is right, with whether admissible evidence was received.

The only concern, and this is stated in case after case, the only concern of this Court or of any Court in relation to the findings of fact, is to determine whether in the old language of the old case whether there was any evidence.

And, under the more recent criteria, the only concern of the Court has been, as stated by this Court and other courts, to determine whether there is reasonable, probative and substantial evidence.

This is stated in case after case.

Now, as the substantial evidence, there had been lower court decisions, again I amend my statement, I recall something else.

This Court has said in the consolidated Edison case that substantial evidence –-

Not a deportation case?

Charles Gordon:

No, sir, an administrative case of the Labor Board.

The terms of the (Inaudible), they used throughout Administrative Laws.

They used in the administrative procedure and the language is very similar to this.

In this identical field/persons, does the Rowoldt case bear on this?

Charles Gordon:


What do we say there?

Charles Gordon:

Your Honor, the Court said that through Mr. Justice Frankfurther that “we must take into account the solidity of proof” – that was the language – “which is necessary to deport a long time resident”.

I translate that to mean we must take into account the substantiality of the evidence.

And to me the term, “Substantiality of the evidence” is an extensive one.

I say that circumstance is different and at least plenty of room to determine how much evidence, how solid the evidence must be in the case of a long time resident.

I can see that it must be solid indeed.

And who must determine the solidity?

Charles Gordon:

In the first place, the administrative factfinder; in the second place, the reviewing court.

Your Honor, as I see the statute, the reference to substantial evidence or reasonable probative as substantial evidence is two-fold, one reference in 242 (b), that is addressed to the factfinder and tells him he must act on reasonable and probative and substantial evidence; and the other is in Section 106 (a) – that’s addressed to the reviewing court and tell us there that the administrative factfinding is conclusive if it is based on reasonable, substantial and probative evidence.

Alright, I see my time is running and I would like to come back to something that was discussed yesterday.

I think the Court is very much interested and that is the question of discretionary relief.

We had some discussion yesterday about the possibilities of discretionary relief and I pointed out that the opportunity to apply for such relief was given to the petitioner that his counsel said at the hearing, “I’d like sometime to think about it” and at the end of the period which is allotted to him, he did not apply for discretionary relief.

Now, we agree that this is a statute with severe consequences.

But Congress has made allowance in many ways for alleviating those consequences.

Now, if this applicant had been sincerely desirous of applying for relief, there were many obnoxious relief opened him and there were mentioned at the deportation hearing.

Charles Gordon:

He was told, “There are various types of a relief for which you can apply”.

There is, for example, and this was matches the hearing, Section 243 (h).

You may wish to claim that you’d be physically persecuted if you would deported to Poland.

There is Section 249 which deals with specifically with this type of case.

But that would still put in (Inaudible)

Charles Gordon:

No, sir.

It would permit him to remain; some of these would permit him to remain as permanent resident.


Charles Gordon:

No, sir, and I was going to get to that.

Your Honor mentioned that yesterday and he was not told anything about it and I want it indicate that this is still available.

May I ask you this, as a predicate to asking for discretionary relief, must he admit that that is deportable?

Charles Gordon:

He can dispute deportability.

That is exactly what our regulation say and ask for relief at the same time conditionally.

You may deny deportability and at the same time ask for discretion.

Charles Gordon:

Our regulations provide that exactly that, Your Honor.

But what if you’re going to (Inaudible) to that?

Charles Gordon:

It’s HCF Arm.

242.17 (d), if I recall it correctly.

It’s 242, 17 U.C. or D; I think D.

I have the regulations here.

I gave you the exact Sections.

Charles Gordon:

It says that a person who applies for discretionary relief does not thereby conceive deportability.

Amended after the hearing (Inaudible)

Charles Gordon:

Well, it is the regulation now.


Is it right?


Charles Gordon:

Yes, Your Honor.

He never applied for the relief.

We don’t know whether it is available then but he seems technically within the context of that statute.


Charles Gordon:

Yes, sir.

He is illegible but he has to show that he is otherwise admissible.

Now that might entail some difficulties but I don’t see what would the difficulties are.


Charles Gordon:

If he was otherwise admissible, the statute ways that we don’t have anything to do.


Charles Gordon:

He has a — as far as we know, we don’t, Your Honor.

You see he didn’t testify.

But counsel says he has an American citizen waiver.

If he would to tell us this, and that of course would put him within the statute, he would be entitled to the automatic waiver if he is otherwise admissible.

Now, the only thing I can see about the otherwise admissible part is that when he returned, he didn’t have a proper visa.

But there is a specific provision for waiting that ineligibility; that’s Section 211 (b).

Who lays it?

Charles Gordon:

The Attorney General.

And then generally, what is that?

Charles Gordon:

Oh, the Attorney General has many discretionary powers, Your Honor, and exercised them very freely.

There are many way of deportability.

What is this man doing now, this petitioner?

Charles Gordon:

Your Honor, this remains a mystery but yesterday, counsel said that he is a construction worker.

I myself did not know what he did.

At one point, a hearing or in a statement that he gave, he said he was a taxi driver.

But I don’t know what he was doing now.

We don’t know much about this individual because he has never told us anything.

William J. Brennan, Jr.:

You investigated him for 25 years (Inaudible).

Charles Gordon:

Your Honor, those investigations have limitations.

We can’t tell exactly what the individual was doing.

There were limitations but not in time?

Charles Gordon:

Well, there was no limitation in time in the statute, Your Honor.

Where in the Attorney General’s regulations?

Charles Gordon:

Nothing in the regulations but as I told you –

On your practice?

Charles Gordon:

In practice, we do have a policy of not bringing proceedings in cases of excess deportship and, if Your Honor, this information I should tell there are about 2,000 such cases where deportation proceedings –

Haven’t we had cases in the last 10, 15 years coming here or somewhere in the Federal Court, the deportations were civilians who participated on the wrong side of Spanish Civil War?

Charles Gordon:

None that I know of, Your Honor.

No deportation cases.

Do you have some cases involving lawsuit where job beware licenses or –

Charles Gordon:

I’m not even familiar –

Or disbarment proceedings?

Charles Gordon:

It could be, Your Honor, but I’m not familiar with those cases.

This is the only case — in response to a question from the bench yesterday, I believe with Mr. Justice Black.

I informed the Court that there had been a number of people like this who had resorted to forge passport.

And in every one of those cases, we were able to give them relief.

We did not deport a single one of them because they applied for relief.

We found that they were worthy of relief and we granted the relief.

Now, there has not been any individual who has been deported on the similar circumstance and I suspect that if this petitioner was to apply for relief, it’s quite possible that he would obtain the relief.

And it seems to me that if I were his counsel, I would not have told this special inquiry officer, who gave him this opportunity.

special inquiry officer said, “I’d be glad to give you an opportunity to apply for discretionary relief”.

He said, “Well, let me think about it”.

This is counsel speaking, “Let me think about it for a couple of weeks”.

He thought about it special inquiry officer to mention the whole series of statute under which he could apply for relief.

And after thinking about it, he did not apply for any discretionary relief.

You say “Discretionary”.

What kind of Texas standard were on that the statute?

Charles Gordon:

Well, Your Honor, the statute said that in certain circumstances, the Attorney General, in his discretion.

That means if he wants to?

Charles Gordon:

No, sir.

He cannot act arbitrarily.

Well, he cannot act arbitrarily but he find it, as I understand as what you mean by “Discretion”.

He’s got the rich conclusion from he thinks as the why, to the contrary.

He is the man here.

Charles Gordon:

Well, I’m not wise to the contrary.

Whether the person is deserving really is more accurate.

How do they get deserving?

Charles Gordon:

And this is what Congress has done it.

It’s made a –

And if he decides he is not deserving, he could go out.

Charles Gordon:

Well, in the first place, he must be deported.

They were targeting about aliens who went to the terms of the statute are deportable.

Then the statute says, “Even though Congress has said these individuals are deportable, yet we will provide a wide area in which the Attorney General can grant relief.

And many of these types of remedies which Congress has provided apply directly to this petitioner, a long time resident for example.

If he had been going out, he would have been deported.

Charles Gordon:

That is right, but he took it upon himself to go out, Your Honor.

He took the risk.

He took it upon himself to make false statement –-

i think he took a pretty big risk.

Charles Gordon:

I would assume so.

Person who goes out of the country for 19 months, as this individual did, and chooses to fight the farn army.

However, laudable that may be from his stand point, yet he knows he is violating the law.

He knows that he is taking a risk if he comes back.

He knows –

Is it true that no statute that applies here, to what this petitioner did?

Charles Gordon:

Yes, sir.

What statute limitation –

Charles Gordon:

It’s long since passed.

Yes, what is it?

Do you remember if it’s three years?

Charles Gordon:

My recollection is five but I wouldn’t conceive the three of five.

So five years after this man faked the passport as he claimed it then, four or five years he could have been prosecuted.

Charles Gordon:

That’s true, Your Honor, but he was not.

Charles Gordon:

We didn’t know, now of course, the (Inaudible) in this case.

Thank you.