KIMM v. ROSENBERG

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Argument of Joseph Forer

Chief Justice Earl Warren: Number 139, Diamond Kimm, Petitioner, versus George K.Rosenberg, District Director, Immigration and Naturalization Service.

Mr. Forer.

Mr. Joseph Forer: Mr. Chief Justice, may it please the Court.

This case is here from the Ninth Circuit.

The question is whether the petitioner -- the question is whether the petitioner was lawfully held ineligible for suspension of deportation because he refused on the basis of his privilege against self-incrimination to testify in the suspension proceeding whether he was or ever had been a member of the Communist Party.

The petitioner is a Korean.

In 1928, he was admitted to the United States on a student's visa and he went to school in college here and received bachelor's and master's degrees.

By 1937, he was ready to return to Korea and rejoin his wife and child.

In that year, however, war broke out between Japan and China.

Petitioner was unwilling to return to Korea, which, of course, at that time, was part of the Japanese empire, because he thought that if he'd return to Korea, he is a technician, would be put to work for the Japanese war machine.

Chief Justice Earl Warren: What year was that?

Mr. Joseph Forer: That was in 1937 --

Chief Justice Earl Warren: 1937.

Mr. Joseph Forer: -- that the war broke out.

He was ready to go back.

But if he went back, it would have meant that he would -- would have been helping the Japanese war effort against China and he was anti-Japanese.

So he continued in school for another year up until July 1938.

And after July 1938, he stopped attending school and took full-time employment in this country.

And in July 1938, the same reason that it induced him not to go back to Korea in 1937 still existed.

In 1938, he didn't want to go back because of the Japanese-Chinese War, so he continued on here.

Now, that made him deportable because he had overstayed his student's visa.

So, deportation proceedings were instituted against him and this culminated in an order of the Board of Immigration Appeals in 1943.

And this order found him deportable for overstaying his status as a student.

It also granted him the privilege of voluntary departure and this he did on a finding by a hearing officer and which was an essential finding for granting the privilege that he had been a person of good moral character for the preceding five years.

But by this time, we were at war with Japan and departure was impossible, so the petitioner stayed on (Inaudible), and he worked in defense industry as a chemist.

In July of 1945 --

Justice Potter Stewart: You said he stayed on legally or illegally or neither?

Mr. Joseph Forer: He -- he was ordered deported.

Justice Potter Stewart: (Voice Overlap) of necessity, of course.

Mr. Joseph Forer: He was granted the privilege of voluntary departure, but he couldn't avail himself up and nobody denies that.

He -- he couldn't go to -- to Japan when we were at war with Japan.

Chief Justice Earl Warren: But his conduct was not surreptitious.

He --

Mr. Joseph Forer: Oh, no.

Chief Justice Earl Warren: --he wasn't hiding or anything of that kind from the --

Mr. Joseph Forer: Not only that.

As I was about to say, the Government hired him.

He stayed on.

First, he worked in defense industry as a chemist.

And as a matter of fact, the FBI cleared him to work on a secret government contract.

And in July of 1945, the Office of Strategic Services recruited him as a volunteer for a projected hazardous mission.

He was recruited by the OSS, a group of men, Koreans who are to be trained to be dropped as American spies in Japanese occupied Korea.

He was trained for this mission, but just as his group was scheduled to depart overseas, Japan surrendered.

So he never did go overseas.

Everything was conspiring to keep him here.

So in September of 1945, he left the Office of Strategic Services and he returned to private employment.

Justice William J. Brennan: Did he -- he didn't have a military rank with OSS.

Mr. Joseph Forer: No.

They were just -- he was just going to be a spy.

He was now anxious to return to Korea because the war was over.

Japan had been defeated.

And he wanted to get back to his native country.

But although the war was over, exit permits were still required.

And they were required until late 1948.

So he, on several occasions, applied to the State Department to get an exit permit and he never received a reply and never got the permit.

As a result, he was still here in the United States on July 1, 1948.

On that date, Congress liberalized the statutory provisions for suspension of deportation.

Among other things, the Act of July 1, 1948 dropped the racial restrictions which previously had excluded Koreans, among other nationalities, from any possible consideration for suspension.

So that as a result of the July 1, 1948 amendment, for the first time, he had a chance for suspension of deportation.

And in June of 1950, the Immigration Service, on its own volition, ordered the deportation proceedings reopened so as to allow him to apply for suspension of deportation under the liberalized legislation.

Now, by this time, the petitioner didn't want to return to Korea.

The Syngman Rhee Regime was then in power in Korea.

The petitioner had become the editor of a Korean language newspaper in California.

This newspaper was an anti-Rhee paper.

And the petitioner was afraid that if he went back to Korea, he would incur physical persecution.

So he didn't want to go back.

And now, that the suspension possibility, for the first time, became available and the Immigration Service reopened it so as to permit him to apply for suspension, he took advantage of the opportunity and he did apply.

Justice Potter Stewart: So, his parents and wife and family in Korea?

Mr. Joseph Forer: His wife and child had come over here the same time he had, but they had come over on visitor's visas.

He had come over on a student visa.

Now, while he was still attending school, their temporary visitor's visa expired.

They tried to get permission to remain on with him even though their visitor's visas had expired.

The Immigration Service refused to extend their visitor's visas, so they had to go back.

He kept -- he stayed on expecting to finish his education and then go back and rejoin them.

And for the various (Inaudible) that I have mentioned, he never did get back.

Justice Potter Stewart: Well, now -- but you didn't answer my question (Voice Overlap) --

Mr. Joseph Forer: And his wife and child, they're in Korea when last (Inaudible).

Now, the suspension statute, under which he applied and which is the statute which is applicable here, was first enacted by the Alien Registration Act of 1940.

And this added Sections 19 (c) and 19 (d) to the Basic Immigration Act of 1917 and Section 19 (c) was amended by this liberalizing legislation that I referred to of July 1, 1948.

Now, Section 19 (c), as amended, prescribed certain conditions before a deportable alien is eligible for suspension.

If and when these conditions are met, the Attorney General then has discretionary power to grant or deny suspension.

If the conditions are not met, the Attorney General does not have discretion to grant suspension.

So far as the petitioner here was concerned, the relevant conditions of eligibility under Section 19 (c) where that they have resided in the United States for seven years, that he have resided here on July 1, 1948 and that he proved that he proved that he had been a person of good moral character for the five years preceding his application.

But in addition, Section (c) says that except as provided in section (d) or subsection (b) and section (d) or subsection (d), Section 19 (d) says that the suspension provisions of 19 (c) are not applicable to aliens who are deportable under certain specified statutes.

And among these various specified statutes was the anarchist deportation statute of 1918.Now, after the petitioner filed his application for suspension, but before it was enacted upon, this anarchist deportation statute of 1918 was amended by the Internal Security Act, the McCarran Act of September 23, 1950.

And the McCarran Act amended the anarchist deportation statute so as to require the deportation, not only of aliens who were -- who were or had been anarchists, but also of aliens who were or had ever been members of the Communist Party.

Now, the effect of this, so far as this case is concerned, is that it automatically enlarged the scope of Section 19 (d) so as to withhold from suspension the suspension provisions of 19 (c), persons who are deportable on account of Communist Party membership.

Now --

Justice Potter Stewart: Now, do you really mean as -- let's see if I understand, both from a right to suspension or a discretion to suspect?

Mr. Joseph Forer: I'm sorry, I didn't hear you.

Justice Charles E. Whittaker: Do you mean that there is a right to suspension or a right to invoke the discretion of the Attorney General?

Mr. Joseph Forer: If -- if an alien is eligible under the statute, he has the right to invoke the discretion of the Attorney General.

Unknown Speaker: Yes.

Justice Tom C. Clark: In order words, if you prevail why the Attorney General could still refuse to --

Mr. Joseph Forer: The Attorney General has exercised his discretion, if we prevail.

Up to now, he has not.

Now, hearings were held in 1950 and 1951 to determine whether the petitioner should be granted suspension.

And there's no question but that the petitioner met the resident's requirements of Section 19 (c) for eligibility for suspension.

An evidence was introduced at the hearing bearing on the requirements of eligibility that the applicant proved good moral character for the five years proceeding the application.

And the evidence on this subject included good character affidavits from persons who were well acquainted with the petitioner.

It included the petitioner's own testimony about his history.

It included a letter from the Office of Strategic Services which praised him for his service with the agency.

It also included a report of a field investigation by the Immigration Service and a report by the FBI.

These reports disclosed that petitioner had no criminal record and that no derogatory information about him have been discovered at all.

And the fact is that the record contains no evidence of any kind which adversely reflects on petitioner's character.

All the evidence is to the effect that he is and was a person of good moral character.

But during the hearing, the examining officer, he was the equivalent of a prosecutor, as distinguished from the hearing office, during the hearing, the examining officer asked the petitioner if he was a member of the Communist Party.

Now, it has not suggested that this question was asked because the service had any information that petitioner was in fact a member of the Communist Party.

The question was asked out of the blue as it were.

Now, when petitioner was asked this question, “Are you a member of the Communist Party?”

His attorney objected on the ground that the question violated the First Amendment and the privilege against self-incrimination.

And on the advice of counsel and on those grounds, the petitioner refused to answer the question.

When the hearing was resumed at a later date, the examining officer asked the petitioner, toward the end of the hearing, if he then wanted to answer the question, “Are you a member of the Communist Party?”

If petitioner said, “No.”

He would decline to answer again.

This time, he just mentioned his privilege against self-incrimination.

He didn't say anything -- he didn't incorporate the First Amendment.

Then, the examining officer asked him whether he had ever been a member of the Communist Party.

And on the advice of his counsel at his deportation hearing, the petitioner again -- the petitioner refused to answer the question as to the past on the basis of his privilege against self-incrimination.

Now, the hearing officer denied suspension of deportation.

And from there, an appeal was taken to the Adjudications Division of the service.

That was then no longer, but at that time, they had this intermediate administrative appeal.

And the Adjudications Division denied suspension, then the appeal went to the Board of Immigration Appeals and the Board of Immigration Appeals denied suspension.

Then, the petitioner brought an injunction suit in the District Court in Los Angeles to review the deportation order and the order denying suspension.

And the District Court sustained the denial of suspension and the Court of Appeals affirmed it.

So there have been five different levels of decision here, three administrative levels and two judicial levels.

Justice Felix Frankfurter: Was the -- was any step taken to ask if the Attorney General himself to pass on this?

Mr. Joseph Forer: I have no -- the -- the -- under the regulations, the Board of Immigration Appeals has the final say on behalf of the Attorney General unless they ask to go on to the Attorney General or the Attorney General himself take it.

But there's no question that when he went through the Board, he exhausted his administrative remedies.

Nothing -- it did not administratively go beyond the Board.

Justice Felix Frankfurter: Has it -- has it been tested whether -- since the statute says the Attorney General whether the man was dissatisfied with the administrative procedures that I want the Attorney General himself to say?

Mr. Joseph Forer: Well, I don't know of any test on that subject and -- that if -- if the alien here did not test it.

I mean, he made no such claim in any of the proceeding.

Justice Tom C. Clark: When was that regulation started?

Mr. Joseph Forer: Which regulation?

Justice Tom C. Clark: As I remember, when we used to pass (Inaudible) question without -- I thought the Attorney General passed on it.

Mr. Joseph Forer: It may --

Justice Tom C. Clark: Does that regulation is saying --

Mr. Joseph Forer: It may be.

All I know is that -- that the way he has --

Justice Felix Frankfurter: Maybe it's very important if -- if that access to him isn't shut off.

Mr. Joseph Forer: Well, it maybe important but the area here never claimed that access to different --

Justice Felix Frankfurter: Well, I'd say it may be important to this litigation.

Mr. Joseph Forer: Yes, it may be, but I -- I just don't see it.

Now, these five --

Justice Felix Frankfurter: What do you mean you don't see it?

Mr. Joseph Forer: No, I mean I don't --

Justice Felix Frankfurter: You said you don't see it.

That doesn't answer a question if you don't see it.

Mr. Joseph Forer: No, no, sir.

Now, these five different levels of adjudication --

Justice Felix Frankfurter: The statute says the Attorney General, not the Attorney General said you can't get to me.

Mr. Joseph Forer: I -- I should think he could not.

But as far as --

Justice Felix Frankfurter: Well, if he -- if you think he couldn't --

Mr. Joseph Forer: -- I know, he did not say that here.

Justice Felix Frankfurter: -- if you think he could not, then it's a relevant question to put it mildly why you didn't -- why you didn't seek to get to him.

Mr. Joseph Forer: Well, he didn't.

He accepted the Board of Immigrations Appeals' decision as being the decision of the Attorney General.

And it is my understanding that that was permissible under that then administrative regulation.

Now, at these various levels of decision, there were various reasons given for holding that the --

Justice Felix Frankfurter: We've got that.

Could you -- either you or Mr. Davis (Inaudible).

I'd like to see that regulation because to me it's a serious question.

Mr. Joseph Forer: Yes.

Justice Felix Frankfurter: When the statute tells the Attorney General and the Attorney General says, “You can't knock at my door.”

Mr. Joseph Forer: Now --

Justice Felix Frankfurter: And when you say you don't see it, it wouldn't be the first time that -- that lawyers haven't exhausted what is the necessary administrative procedure.

Mr. Joseph Forer: I'm sure of that.

Now, four different reasons were given for denying suspension varying with the particular agency or court which passed on the question.

And I'll take up these four different reasons one at a time.

Justice William J. Brennan: (Inaudible)

Mr. Joseph Forer: The -- the Government has not taken the position that we should have gone to the Attorney General, and the alien has never taken the position that he was foreclosed from going to the Attorney General.

Now, that is -- up to now, that has not been into the case.

And what -- all I meant was when I said I don't see it, is that I don't see how, so far as the alien is concerned, he can now claim that he was foreclosed from going to the Attorney General because if he was foreclosed from going to the Attorney General, he accepted that foreclosure.

And that's why I don't see --

Justice Felix Frankfurter: But he may be foreclosed from coming here.

Mr. Joseph Forer: Well, that is possible.

Now, as I already said, a precondition to eligibility for suspension under Section 19 (c) is that the alien proved that he was a person of good moral character for the preceding five years.

Now, the hearing officer ruled, and I want to quote his ruling on this subject, “In view of his failure to answer the questions propounded, the respondent,” meaning the petitioner here or the alien, “the respondent has not affirmatively proved,” I guess I'll resume that later on.

Chief Justice Earl Warren: We'll recess now.

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Argument of Joseph Forer

Chief Justice Earl Warren: Mr. Forer --

Mr. Joseph Forer: Mr. Chief Justice --

Chief Justice Earl Warren: -- you may continue your argument.

Mr. 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.

Justice 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.

Mr. 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.

Justice Charles E. Whittaker: That's alright.

Mr. Joseph Forer: I'm just trying to get rid of --

Justice Charles E. Whittaker: Very well.

Mr. 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.

Justice Charles E. Whittaker: Wouldn't the statute say he should have to work?

Mr. 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 --

Justice Charles E. Whittaker: Before you leave that, may I ask you --

Mr. Joseph Forer: Yes.

Justice Charles E. Whittaker: Are you saying that the regulation 151.3 (e) is invalid?

Mr. 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.

Justice 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?

Mr. Joseph Forer: Did they?

Justice Felix Frankfurter: Did they.

Mr. Joseph Forer: No, Your Honor, they did not.

Justice 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?

Mr. 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.

Justice Felix Frankfurter: He didn't do it?

Mr. Joseph Forer: Well --

Justice Felix Frankfurter: After -- I come back to my question of yesterday.

How can his delegates determine what is legal limiter?

Mr. 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.

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.

Justice 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?

Mr. 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 --

Justice Felix Frankfurter: Do you know the -- or because he hasn't --

Mr. Joseph Forer: -- because he --

Justice Felix Frankfurter: -- nor himself --

Mr. Joseph Forer: -- because I can't tell, whether he is disqualified.

Justice Felix Frankfurter: But that is not why I can't tell you and for himself within the relieving of the statute.

Mr. 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 --

Justice 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.

Mr. 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 --

Justice 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?

Mr. Joseph Forer: I -- I'm afraid I didn't catch that.

Justice Felix Frankfurter: He need not just close his mind, he just denies it.

Mr. Joseph Forer: The Attorney General?

Justice Felix Frankfurter: Yes.

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

Mr. 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.

Justice 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?

Mr. Joseph Forer: There certainly is.

Justice Felix Frankfurter: You think there is?

Mr. Joseph Forer: Yes, sir.

Justice Felix Frankfurter: Although, you can circumvent completely by not doing anything?

Mr. Joseph Forer: I don't think -- think you can circumvent it completely it.

Or you mean the Attorney General could?

Justice Felix Frankfurter: Yes, the Attorney General could.

Mr. 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 --

Justice Felix Frankfurter: Well, I'm not talking about should.

I'm assuming the --

Mr. Joseph Forer: Well --

Justice Felix Frankfurter: -- Attorney General is a conscientious official.

Mr. Joseph Forer: Well, on that assumption, I don't think he would.

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

Justice 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.

Mr. Joseph Forer: But if that's the way he feels maybe he should exercise his discretion.

Justice 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.

Mr. Joseph Forer: All right, but -- and he has -- he has no right to hold the alien ineligible because the statute gives conditions for eligibility.

Justice Felix Frankfurter: Do you think that's just what it's saying?

I -- I've denied it because he's red headed.

Mr. Joseph Forer: No, that would be an abusive discretion.

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 --

Justice 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.

Mr. Joseph Forer: Yes.

Justice Felix Frankfurter: And you' save the Fifth Amendment by that use of that mode of discharging a duty.

Mr. 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.

Justice 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?

Mr. 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.

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.

Justice 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.

Mr. 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.

Justice Felix Frankfurter: Does that statute vest specific power in the Attorney General?

Mr. 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 --

Justice 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?

Mr. Joseph Forer: Yes, I think so and that --

Justice Felix Frankfurter: This Court has held that?

Mr. Joseph Forer: Yes.

Justice Felix Frankfurter: When?

Mr. 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.

Justice Felix Frankfurter: How, practically could he take it himself -- could he move if he doesn't know anything about it --

Mr. Joseph Forer: Well --

Justice Felix Frankfurter: -- but he can make an appeal then.

Mr. 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.

Chief Justice Earl Warren: You may.

Mr. Davis.

Argument of John F. Davis

Mr. 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.

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.

Chief Justice 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.

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.

Mr. John F. Davis: I'm inclined to think in that case -- I think it depends somewhat on the probation system --

Chief Justice Earl Warren: Oh, yes.

Mr. John F. Davis: -- and whether it was --

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice Earl Warren: Well, of course, he could exercise his discretion and --

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: -- its a --

Mr. John F. Davis: That's right.

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice Earl Warren: Yes.

Mr. 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.

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.

Justice John M. Harlan: What do you say about the question of exhaustion namely that the Attorney General is never --

Mr. John F. Davis: Well --

Justice John M. Harlan: -- given the opportunity to --

Mr. 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 --

Justice Felix Frankfurter: What is the -- what's the citation for that?

Mr. 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.

Justice Charles E. Whittaker: 54 Stat what?

Mr. John F. Davis: 54 Stat. 670.

Justice Charles E. Whittaker: Thank you.

Mr. 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 --

Justice Felix Frankfurter: Someone referred -- those citations, the one referred to those -- those -- the statute, the one referred to in Jay against (Inaudible)

Mr. John F. Davis: Jay against Boyd?

Justice Felix Frankfurter: Jay against Boyd, was it?

I don't think so --

Mr. John F. Davis: There the -- well, what was referred to specifically against -- in Jay against Boyd was the --

Justice Felix Frankfurter: Like -- like --

Mr. John F. Davis: -- authority of the regulation --

Justice Felix Frankfurter: Yes.

Mr. 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.

Justice Felix Frankfurter: 1950s, but -- but I -- I.

Mr. John F. Davis: 1956, it must have been the 1952 Act.

Justice 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, --

Mr. John F. Davis: No, then --

Justice Felix Frankfurter: -- then a while ago, exercising the discretion.

Mr. John F. Davis: That is right.

In these cases --

Justice 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.

Mr. John F. Davis: Yes.

Justice 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.

Mr. John F. Davis: I -- yes, I understand that design.

Justice Felix Frankfurter: And I think that's different from Jay against Boyd, isn't it?

Mr. John F. Davis: Well, yes.

Of course, it arises -- they don't lay down a rule of law as a --

Justice Felix Frankfurter: Quite a few, but --

Mr. John F. Davis: -- like a regulation or like a legislature, they decide in particular case.

Justice 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.

Mr. John F. Davis: That is the way we understand it.

And --

Justice Felix Frankfurter: Well, that's the short answer.

Mr. 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.

Justice 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.

Mr. John F. Davis: Well --

Justice Tom C. Clark: Is that the reason for -- the decency to take the adverse ruling of the Board to the same case.

Mr. 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.

Justice 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.

Mr. John F. Davis: Yes.

Justice 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).

Mr. John F. Davis: Yes, but as I --

Justice Felix Frankfurter: But the only (Voice Overlap) --

Mr. John F. Davis: -- I say that the statute, that Congress itself --

Justice Felix Frankfurter: What you -- you've -- all that --

Mr. John F. Davis: Yes, sir.

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

Justice Hugo L. Black: Does the statute provide any qualifications for the people to whom this power might be delegated by the Attorney General?

Mr. John F. Davis: No, it would make (Voice Overlap) --

Justice Hugo L. Black: (Inaudible) delegation of the cause, and just like anybody he wants to --

Mr. John F. Davis: That is right.

Justice Hugo L. Black: -- pass on that this matter and exercise it and that's fine.

Mr. John F. Davis: Well, no it's --

Justice Hugo L. Black: (Voice Overlap) --

Mr. John F. Davis: -- it's not final, because he has setup a procedure for --

Justice Hugo L. Black: I'm not talking about -- I'm talking about as far as statute is --

Mr. John F. Davis: No.

Well --

Justice Hugo L. Black: If there's a statute provided.

Mr. John F. Davis: No, the statute -- that's -- you're quite right.

Justice Hugo L. Black: He's got whatever --

Mr. John F. Davis: The statute doesn't -- wouldn't require any appeals at all I think.

Justice Hugo L. Black: It requires no appeal --

Mr. John F. Davis: And he couldn't --

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

Mr. John F. Davis: As far as the language --

Justice Hugo L. Black: Conversations to binding without review.

Mr. 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.

Justice Hugo L. Black: Under the statute?

Mr. John F. Davis: Under the interpretations of the statute by this Court.

Justice Hugo L. Black: By the reason of the Board.

What's the --

Mr. John F. Davis: No.

Justice Hugo L. Black: -- reason why?

Mr. 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.

Justice Hugo L. Black: Because the regulations had been set up, wasn't it?

Mr. John F. Davis: No.

No, because the -- the regulations don't provide for court review, that's done --

Justice Hugo L. Black: I understand that.

Mr. John F. Davis: -- under habeas corpus or -- under the -- under the administrative procedure.

Justice Hugo L. Black: What -- what case first held that there could be a review of the action?

Mr. 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.

Justice 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.

Mr. John F. Davis: That's right.

He couldn't exercise the discretion -- discretion for an improper purpose that's -- that was mentioned.

Justice Felix Frankfurter: Or it -- it didn't fail to exercise discretion.

Mr. John F. Davis: That's right.

That is right.

But as far as the statute goes there's no -- there's no specification.

Justice Felix Frankfurter: No review, no review given the statute at all.

Mr. John F. Davis: Not -- not the kind of according to the terms of the fact.

Justice Tom C. Clark: First Board of Immigration Appeals (Inaudible)

Mr. John F. Davis: Oh, yes.

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

Justice Felix Frankfurter: Well that much be before (Voice Overlap) --

Mr. 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.

Justice 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.

Mr. John F. Davis: I -- I don't really remember, it goes back along way because --

Justice Tom C. Clark: As I understand (Inaudible)

Justice Felix Frankfurter: Well, that's when it was transferred.

Justice Tom C. Clark: We know that.

Mr. John F. Davis: I think it goes back, I think -- I think you're right Mr. Justice.

Chief Justice Earl Warren: Thank you, Mr. Davis.

Mr. Forer.

Rebuttal of Joseph Forer

Mr. 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.

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.