385 U.S. 276 (1966), 40, Woodby v. Immigration and Naturalization Service

Docket Nº:No. 40
Citation:385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362
Party Name:Woodby v. Immigration and Naturalization Service
Case Date:December 12, 1966
Court:United States Supreme Court
 
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Page 276

385 U.S. 276 (1966)

87 S.Ct. 483, 17 L.Ed.2d 362

Woodby

v.

Immigration and Naturalization Service

No. 40

United States Supreme Court

Dec. 12, 1966

Argued November 17, 1966

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

In No. 80, the Court of Appeals for the Second Circuit originally set aside a deportation order against petitioner on the ground that the Government has the burden of proving the facts supporting deportability beyond a reasonable doubt, but then reversed itself and held that the Government need only prove its case with reasonable, substantial, and probative evidence. In No. 40, the Court of Appeals for the Sixth Circuit did not explicitly deal with the burden of persuasion imposed on the Government at the administrative level, but found only that the underlying deportation order was supported by reasonable, substantial, and probative evidence on the record considered as a whole. Section 106(a)(4) of the Immigration and Nationality Act states that a deportation order, "if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive," and § 242(b)(4) of the Act provides that "no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence."

Held: No deportation order may be entered unless the Government proves by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Pp. 282-286.

(a) Sections 106(a)(4) and 242(b)(4) of the Act are addressed to the scope of judicial review, and not to the degree of proof required at the administrative level in deportation proceedings. Pp. 282-284.

(b) Congress has not specified the degree of proof required in deportation proceedings, a matter traditionally left to the courts to resolve. P. 284.

(c) In denaturalization and expatriation cases, the Government has been required by the Court to establish its allegations by clear,

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unequivocal, and convincing evidence, and that burden of proof is likewise appropriate in deportation proceedings. Pp. 285-286.

No. 40, 370 F.2d 989, and No. 80, 350 F.2d 894, 901, judgments set aside and remanded.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The question presented by these cases is what burden of proof the Government must sustain in deportation proceedings. We have concluded that it is incumbent upon the Government in such proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence.

In Sherman (No. 80), the petitioner is a resident alien who entered this country from Poland in 1920 as a 14-year-old boy. In 1963, the Immigration and Naturalization Service instituted proceedings to deport him upon the ground that he had reentered the United States in 1938, following a trip abroad, without inspection as an

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alien.1 After a hearing before a special inquiry officer, the petitioner was ordered to be deported, and the Board of Immigration Appeals dismissed his appeal.2

The Government's evidence showed that the petitioner had obtained a passport in 1937 under the name of Samuel Levine, representing himself as a United States citizen. Someone using this passport sailed to France in June, 1937, proceeded to Spain, returned to the United States in December, 1938, aboard the S.S. Ausonia, and was admitted without being examined as an alien. To establish that it was the petitioner who had traveled under this passport, the Government introduced the testimony of Edward Morrow, an American citizen who had fought in the Spanish Civil War. Morrow was at first unable to remember the name Samuel Levine or identify the petitioner, but eventually stated that he thought he had known the petitioner as "Sam Levine," had seen him while fighting for the Loyalists in Spain during 1937 and 1938, and had returned with him to the United States aboard the S.S. Ausonia in December, 1938. Morrow conceded that his recollection of events

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occurring 27 years earlier was imperfect, and admitted that his identification of the petitioner might be mistaken.

It is not clear what standard of proof the special inquiry officer and the Board of Immigration Appeals on de novo review applied in determining that it was the petitioner who had traveled to Spain and reentered the United States under the Samuel Levine passport. At the outset of his opinion, the special inquiry officer stated that the Government must establish deportability "by reasonable, substantial and probative evidence," without discussing what the burden of proof was. Later, he concluded that the Government had established its contentions "with a solidarity far greater than required," but did not further elucidate what was "required." The Board of Immigration Appeals stated that it was "established beyond any reasonable [87 S.Ct. 485] doubt" that the petitioner had obtained the Samuel Levine passport, and added that this established a "presumption" that the petitioner had used it to travel abroad. The Board further stated that it was a "most unlikely hypothesis" that someone other than the petitioner had obtained and used the passport, and asserted that "the Service has borne its burden of establishing" that the petitioner was deportable, without indicating what it considered the weight of that burden to be.

Upon petition for review, the Court of Appeals for the Second Circuit originally set aside the deportation order upon the ground that the Government has the burden of proving the facts supporting deportability beyond a reasonable doubt.3 The court reversed itself, however, upon a rehearing en banc, holding that the Government need only prove its case with "reasonable, substantial,

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and probative evidence."4 We granted certiorari, 384 U.S. 904.

In Woodby (No. 40), the petitioner is a resident alien who was born in Hungary and entered the United States from Germany in 1956 as the wife of an American soldier. Deportation proceedings were instituted against her on the ground that she had engaged in prostitution after entry.5 A special inquiry officer and the Board of Immigration Appeals found that she was deportable upon the ground charged.

At the administrative hearing, the petitioner admitted that she had engaged in prostitution for a brief period in 1957, some months after her husband had deserted her, but claimed that her conduct was the product of circumstances amounting to duress. Without reaching the validity of the duress defense, the special inquiry officer and the Board of Immigration Appeals concluded that the petitioner had continued to engage in prostitution after the alleged duress had terminated. The hearing officer and the Board did not discuss what burden of proof the Government was required to bear in establishing deportability, nor did either of them indicate the degree of certainty with which their factual conclusions were reached. The special inquiry officer merely asserted that the evidence demonstrated that the petitioner was

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deportable. The Board stated that the evidence made it "apparent" that the petitioner had engaged in prostitution after the alleged duress had ended, and announced that "it is concluded that the evidence establishes deportability. . . ."

In denying a petition for review, the Court of Appeals for the Sixth Circuit did not explicitly deal with the issue of what burden of persuasion was imposed upon the Government at the administrative level, finding only that "the Board's underlying order is `supported by reasonable, substantial, and probative evidence on the record considered as a whole. . . .'" We granted certiorari, 384 U.S. 904.

In the prevailing opinion in the Sherman case, the Court of Appeals for the Second Circuit stated that, "[i]f the slate were clean," it

might well agree that the standard of persuasion for deportation should be similar to that in denaturalization, [87 S.Ct. 486] where the Supreme Court has insisted that the evidence must be "clear, unequivocal, and convincing," and that the Government needs "more than a bare preponderance of the evidence" to prevail. . . . But here,

the court thought, "Congress has spoken. . . ." 350 F.2d at 900. This view was based upon two provisions of the Immigration and Nationality Act which use the language "reasonable, substantial, and probative evidence" in connection with deportation orders. The provisions in question are § 106(a)(4) of the Act, which states that a deportation order, "if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive,"6 and § 242(b)(4) of the Act, which provides, inter alia, that "no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence."7

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It seems clear, however, that these two statutory provisions are addressed not to the degree of proof required at the administrative...

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