Woodby v. Immigration and Naturalization Service Sherman v. Immigration and Naturalization Service
| Decision Date | 12 December 1966 |
| Docket Number | Nos. 40 and 80,s. 40 and 80 |
| Parties | Elizabeth Rosalia WOODBY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE. Joseph SHERMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE |
| Court | U.S. Supreme Court |
Jacob A. Myers, Dayton, Ohio, for petitioner, Woodby.
Joseph Forer, Washington, D.C., for petitioner, Sherman.
Francis X. Beytagh, Jr., Cleveland, Ohio, pro hac vice, by special leave of Court, Charles Gordon, Washington, D.C., for respondent.
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 re-entered the United States in 1938, following a trip abroad, without inspection as an
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
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 re-entered 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 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,
and probative evidence.'4 We granted certiorari, 384 U.S. 904, 86 S.Ct. 1345, 16 L.Ed.2d 357.
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
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, 86 S.Ct. 1345, 16 L.Ed.2d 357.
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 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
It seems clear, however, that these two statutory provisions are addressed not to the degree of proof required at the administrative level in deportation proceedings, but to quite a different subject—the scope of judicial review. The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law.8 The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt.9 But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence.10
That § 106(a)(4) relates exclusively to judicial review is made abundantly clear by its language, its context, and its legislative history. Section 106 was added to the Act in 1961 in order 'to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States.'11 The section is entitled 'Judicial Review of
Orders of Deportation and Exclusion,' and by its terms provides 'the sole and exclusive procedure for' the 'judicial review of all final orders of deportation.' Subsection 106(a)(4) is a specific directive to the courts in which petitions for review are filed.12
It is hardly less clear that the other provision upon which the Court of Appeals for the Second Circuit relied, § 242(b)(4) of the Act, is also addressed to reviewing courts, and, insofar as it represents a yardstick for the administrative factfinder, goes, not to the burden of proof, but rather to the quality and nature of the evidence upon which a deportation order must be based.13 The provision declares that 'reasonable, substantial, and probative evidence' shall be the measure of whether a deportability decision is 'valid'—a word that implies scrutiny by a reviewing tribunal of a decision already reached by the trier of the facts. The location of this
provision in a section containing provisions dealing with procedures before the special inquiry officer has little significance when it is remembered that the original 1952 Act did not itself contain a framework for judicial review—although such review was, of course, available by habeas corpus or otherwise. See Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. And whatever ambiguity might be thought to lie in the location of this section is resolved by its legislative history. The Senate...
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