Jay v. Boyd

• Decision Date: 11 June 1956
• Docket Number: No. 503,503
• Citation: 351 U.S. 345,100 L.Ed. 1242,76 S.Ct. 919
• Parties: Cecil Reginald JAY, Petitioner, v. John P. BOYD, District Director, Immigration and Naturalization Service
• Court: U.S. Supreme Court

351 U.S. 345

76 S.Ct. 919

100 L.Ed. 1242

Cecil Reginald JAY, Petitioner,

v John P. BOYD, District Director, Immigration and Naturalization Service.

No. 503.

Argued May 3, 1956.

Decided June 11, 1956.

[Syllabus from pages 345-346 intentionally omitted] MessersWill Maslow, New York City, John Caughlan, Seattle, Wash., for petitioner.

Mr.John V. Lindsay, New York City, for respondent.

Mr. Justice REED delivered the opinion of the Court.

Petitioner brought this habeas corpus proceeding to test the validity of the denial of his application under §§ 244(a)(5) and 244(c) of the Immigration and Nationality Act of 1952, 66 Stat. 215, 216, 8 U.S.C. §§ 1254(a)(5) and 1254(c), 8 U.S.C.A. § 1254(a)(5), (c), for discretionary suspension of deportation. He contends that the denial of his application was unlawful because based on confidential, undisclosed information. The District Court denied the writ, holding, so far as pertinent here, that, 'after complying with all the essentials of due process of law in the deportation hearing and in the hearing to determine eligibility for suspension of deportation, (the Attorney General may) consider confidential information outside the record in formulating his discretionary decision.'¹ The Court of Appeals affirmed, concluding, inter alia, that petitioner was not 'denied due process of law in the consideration of his application for suspension of deportation because of the use of this confidential information.' 222 F.2d 820, 820—821, rehearing denied 224 F.2d 957. We granted certiorari, 350 U.S. 931, 76 S.Ct. 303, to consider the validity of 8 CFR, Rev.1952, § 244.3, the Attorney General's regulation which provides:

's 244.3 Use of confidential information. In the case of an alien qualified for * * * suspension of deportation under section * * * 244 of the Immigra- tion and Nationality Act the determination as to whether the application for * * * suspension of deportation shall be granted or denied (whether such determination is made initially or on appeal) may be predicated upon confidential information without the disclosure thereof to the applicant, if in the opinion of the officer or the Board making the determination the disclosure of such information would be prejudicial to the public interest, safety, or security.'

Following a hearing, the fairness of which is unchallenged, petitioner was ordered deported in 1952 pursuant to 8 U.S.C. (1946 ed., Supp. V) § 137—3. That section provided for the deportation of any alien 'who was at the time of entering the United States, or has been at any time thereafter,' a member of the Communist Party of the United States.² Petitioner, a citizen of Great Britain, last entered the United States in 1921. At the deportation hearing he admitted having been a voluntary member of the Communist Party from 1935 through 1940. He attacked the validity of the deportation order in the courts below on the ground that there is 'no lawful power * * * under the Constitution ow laws of the United States' to deport one who has 'at no time violated any condition imposed at the time of his entry.' But that point has been abandoned, and in this Court petitioner in effect concedes that he is deportable. See Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586.

In 1953, upon motion of petitioner, the deportation order was withdrawn for the purpose of allowing petitioner to seek discretionary relief from the Attorney General under § 244(a)(5) of the Act. The application for suspension of deportation was filed and a hearing thereon was held before a special inquiry officer of the Immigration and Naturalization Service.³ The special inquiry officer found petitioner to be qualified for suspension of deportation⁴—that is, found that petitioner met the statutory prerequisites to the favorable exercise of the discretionary relief.⁵ But the special inquiry officer decided the case for suspension did not 'warrant favorable action' in view of certain 'confidential information.'⁶ The Board of Immigration Appeals dismissed an appeal, basing its decision 'Upon a full consideration of the evidence of record and in light of the confidential information available.'⁷ Thus, the Board in considering the appeal reviewed the undisclosed information as well as the evidence on the open record. Petitioner then commenced the present habeas corpus action.

As previously noted, § 244(a)(5) of the Act provides that the Attorney General 'may in his discretion' suspend deportation of any deportable alien who meets certain statutory requirements relating to moral character, hardshop and period of residence within the United States. If the Attorney General does suspend deportation under that provision, he must file, pursuant to § 244(c), 'a complete and detailed statement of the facts and pertinent provisions of law in the 'case with Congress, giving 'the reasons for such suspension.' So far as pertinent here, deportation finally cancels only if Congress affirmatively approves the suspension by a favorable concurrent resolution within a specified period of time. There is no express statutory grant of any right to a hearing on an application to the Attorney General for discretionary suspension of deportation. For purposes of effectuating these statutory provisions, the Attorney General adopted regulations delegating his authority under § 244 of the Act to special inquiry officers;⁸ giving the alien the right to apply to suspension during a deportation hearing;⁹ putting the burden on the applicant to establish the statutory requirements for eligibility for suspension;¹⁰ allowing the alien-applicant to submit any evidence in support of his application;¹¹ requiring the special inquiry officer to present evidence bearing on the applicant's eligibility for relief;¹² and requiring a 'written decision' with 'a discussion of the evidence relating to the alien's eligibility for such relief and the reasons for granting or denying such application.'¹³ The Attorney General also promulgated the regulation under attack here, 8 CFR, Rev.1952, § 244.3, see p. 2, supra, providing for the use by special inquiry officers and the Board of Immigration Appeals of confidential information in ruling upon suspension applications if disclosure of the information would be prejudicial to the public interest, safety or security.

We note that petitioner does not suggest that he did not receive a full and fair hearing on evidence of record with respect to his statutory eligibility for suspension of deportation. In fact, petitioner recognizes that the special inquiry officer found in his favor on all issues relating to eligibility for the discretionary relief and that those findings were adopted by the Board of Immigration Appeals.¹⁴ This favorably disposed of petitioner's eligibility for consideration for suspension of deportation—the first step in the suspension procedure. Thus, we have here the case of an admittedly deportable alien who has been ordered deported following an unchallenged hearing, and who has been accorded another full and fair hearing on the issues respecting his statutory qualifications for discretionary suspension of deportation.

It is urged upon the Court that the confidential information regulation is invalid because inconsistent with § 244 of the Act. In support of this claim, petitioner argues that § 244 implicitly requires the Attorney General to give a hearing on applications for suspension of deportation. It is then said that this statutory right is nullified and rendered illusory by the challenged regula- tion, and that therefore the regulation is invalid. But there is nothing in the language of § 244 of the Act upon which to base a belief that the Attorney General is required to give a hearing with all the evidence spread upon an open record with respect to the considerations which may bear upon his grant or denial of an application for suspension to an alien eligible for that relief. Assuming that the statute implicitly requires a hearing on an open record as to the specified statutory prerequisites to favorable action, there is no claim here of a denial of such a hearing on those issues. Moreover, though we assume a statutory right to a full hearing on those issues, it does not follow that such a right exists on the ultimate decision—the exercise of discretion to suspend deportation.

Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility. However, Congress did not provide statutory standards for determining who, among qualified applicants for suspension, should receive the ultimate relief. That determination is left to the sound discretion of the Attorney General. The statute says that, as to qualified deportable aliens, the Attorney General 'may, in his discretion' suspend deportation.¹⁵ It does not restrict the considerations which may be relied upon or the procedure by which the discretion should be exercised. Although such aliens have been given a right to a discretionary determination on an application for suspension, cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace. Like probation or suspension of criminal sentence, it 'comes as an act of grace', Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566, and 'cannot be demanded as a right', Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204.¹⁶ And this unfettered discretion of the Attorney General with respect to suspension of deportation is analogous to the Board of Parole's powers to release federal prisoners on parole.¹⁷ Even if we assume that Congress has given to qualified applicants for suspension of deportation a right to offer evidence to the Attorney...