Kimm v. Rosenberg

• Decision Date: 13 June 1960
• Docket Number: No. 139,139
• Citation: 4 L.Ed.2d 1299,363 U.S. 405,80 S.Ct. 1139
• Parties: Diamond KIMM, Petitioner, v. George K. ROSENBERG, District Director, Immigration and Naturalization Service
• Court: U.S. Supreme Court

363 U.S. 405

80 S.Ct. 1139

4 L.Ed.2d 1299

Diamond KIMM, Petitioner,

v George K. ROSENBERG, District Director, Immigration and Naturalization Service.

No. 139.

Argued May 16 and 17, 1960.

Decided June 13, 1960.

Mr. Joseph Forer, Washington, D.C., for petitioner.

Mr. John F. Davis, Washington, D.C., for respondent.

PER CURIAM.

Petitioner applied for suspension of an order directing his deportation to Korea or permitting his voluntary departure. He does not question the validity of the deportation order, but contends that he is within the eligible statutory class whose deportation may be suspended at the discretion of the Attorney General. § 19(c) of the Immigration Act of 1917, as amended. Relief on this score was denied on the basis that the Attorney General has no power to exercise his discretion in that regard since petitioner failed to prove his eligibility under that section and the Internal Security Act of 1950.

Before the hearing officer, petitioner was asked if he was a member of the Communist Party. He refused to answer, claiming the Fifth Amendment privilege against self-incrimination. The officer refused the suspension on the grounds that petitioner had failed to prove that he was a person of good moral character and that he had not met the statutory requirement of showing that he was not a member of or affiliated with the Communist Party. The Board of Immigration Appeals affirmed on the latter ground, as did the Court of Appeals. Kimm v. Hoy, 263 F.2d 773.

Petitioner contends that he presented 'clear affirmative evidence' as to eligibility which stands uncontradicted and that the burden was on the Government to show his affiliations, if any, with the Party. He contends that the disqualifying factor of Communist Party membership is an exception to § 19(c) which the Government must prove. We think not. Rather than a proviso, it is an absolute disqualification, since that class of aliens is carved out of the section at its very beginning by the words 'other than one to whom subsection (d) of this section is applicable.¹ Subsection (d)² referred to aliens deportable under the Act of October 16, 1918. Section 22 of the Internal Security Act of 1950 amended the 1918 Act to include Communists,³ and thus terminated the discretionary authority under § 19(c) as to any alien who was deportable because of membership in the Communist Party. Petitioner offered no evidence on this point, although the regulations place on him the burden of proof as to 'the statutory requirements precedent to the exercise of discretionary relief.' 8 CFR, 1949 ed., § 151.3(e), as amended, 15 Fed.Reg. 7638. This regulation is com- pletely consistent with § 19(c). The language of that section, in contrast with the statutory provisions governing deportation, imposes the general burden of proof upon the applicant.

It follows that an applicant for suspension, 'a matter of discretion and of administrative grace,' U.S. ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652, must, upon the request of the Attorney General, supply such information that is within his knowledge and has a direct bearing on his eligibility under the statute. The Attorney General may, of course, exercise his authority of grace through duly delegated agents. Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242. Perhaps the petitioner was justified in his personal refusal to answer—a question we do not pass upon—but this did not relieve him under the statute of the burden of establishing the authority of the Attorney General to exercise his discretion in the first place.

Affirmed.

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

It has become much the fashion to impute wrongdoing to or do impose punishment on a person for invoking his constitutional rights.¹ Lloyd Barenblatt has served a jail sentence for invoking his First Amendment rights. See Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115. As this is written, Dr. Willard Uphaus, as a consequence of our decision in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090, is in jail in New Hampshire for invoking rights guaranteed to him by the First and Fourteenth Amendments. So is the mathematician, Horace Chandler Davis, who invoked the First Amendment against the House Un-American Activities Committee. Davis v. United States, 6 Cir., 269 F.2d 357. Today we allow invocation of the Fifth Amendment to serve, in effect though not in terms, as proof that an alien lacks the 'good moral character' which he must have under § 19(c) of the Immigration Act in order to become eligible for the dispensing powers entrusted to the Attorney General.

The import of what we do is underlined by the fact that there is not a shred of evidence of bad character in the record against this alien. The alien has fully satisfied the requirements of § 19(c) as shown by the record. He entered as a student in 1928 and pursued his studies until 1938. He planned to return to Korea but the outbreak of hostilities between China and Japan in 1937 changed his mind. Since 1938 he has been continuously employed in gainful occupations. That is the sole basis of his deportability.² The record shows no criminal convictions, nothing that could bring stigma to the man. His employment since 1938 has been as manager of a produce company, as chemist, as foundry worker, and as a member of O.S.S. during the latter part of World War II. He also was self-employed in the printing business, publishing a paper 'Korean Independence.' No one came forward to testify that he was a Communist. There is not a word of evidence that he had been a member of the Communist Party at any time. The only thing that stands in his way of being eligible for suspension of depor- tation by the Attorney General is his invocation of the Fifth Amendment.

The statute says nothing about the need of an alien to prove he never was a Communist. If the question of Communist Party membership had never been asked and petitioner had never invoked the Fifth Amendment, can it be that he would still be ineligible for suspension? It is for me unthinkable. Presumption of innocence is too deeply ingrained in our system for me to believe that an alien would have the burden of establishing a negative. What the case comes down to is simply this: invocation of the Fifth Amendment creates suspicions and doubts that cloud the alien's claim of good moral character.

Imputation of guilt for invoking the protection of the Fifth Amendment carries us back some centuries to the hated oath ex officio used both by the Star Chamber and the High Commission. Refusal to answer was contempt.³ Thus was started in the English-speaking world the great rebellion against oaths that either violated the conscience of the witness or were used to obtain evidence against him. See Ullmann v. United States, 350 U.S. 422, 445—449, 76 S.Ct. 497, 510—512, 100 L.Ed. 511 (dissenting opinion).

I had assumed that invocation of the privilege is a neutral act, as consistent with innocence as with guilt. We pointed out in Slochower v. Board of Education, 350 U.S. 551, 557—558, 76 S.Ct. 637, 641, 100 L.Ed. 692: 'The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.' We re-emphasized that view in Grunewald v. United States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1 L.Ed.2d 931: 'Recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men.'

We went further in Konigsberg v. State Bar, 353 U.S. 252, 267, 77 S.Ct. 722, 730, 1 L.Ed.2d 810, and in Schware v. Board of Bar Examiners, 353 U.S. 232, 246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796, and held that even past membership in the Communist Party was not by itself evidence that the person was of bad moral character.

We therefore today make a marked departure from precedent when we attach a penalty for reliance on the Fifth Amendment. The Court in terms does not, and cannot, rest its decision on the ground that by invoking the Fifth Amendment the petitioner gave evidence of bad moral character. Yet the effect of its decision is precisely the same. In so holding we disregard history and, in the manner of the despised oath ex officio, attribute wrongdoing to the refusal to answer. It seems to me indefensible for courts which act under the Constitution to draw an inference of bad moral character from the invocation of a privilege which was deemed so important to this free society that it was embedded in the Bill of Rights.

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

Suspension of deportation may be 'a matter of discretion and of administrative grace,' United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, but eligi- bility for suspension, for the exercise of that discretion, is very much a matter of law. McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 229, 95 L.Ed. 173. The decision of the Board of Immigration Appeals was that petitioner was not, under the governing statute, eligible for suspension; and on that basis its order must stand or fall in court. Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626.

The only basis of the Appeals Board's determination of ineligibility that the Government seriously defends here is the Board's finding that the petitioner had not shown he was not deportable under §§ 1 and 4 of the Act of October 16, 1918, 40 Stat. 1012, as amended by § 22 of the Internal Security Act of 1950, 64 Stat. 1006, 1008. Those provisions retroactively made deportable an alien who had been a Communist Party member at any time since his entry into the United States; and § 19 of the 1917 Immigration Act, 39 Stat. 889, as later amended,¹ under which petitioner's eligibility for...