Woodby v. Immigration & Naturalization Service

*287 Mr. Justice Clark,

whom Mr. Justice Harlan joins,

dissenting.

The Court, by placing a higher standard of proof on the Government, in deportation cases, has usurped the legislative function of the Congress and has in one fell swoop repealed the long-established “reasonable, substantial, and probative” burden of proof placed on the Government by specific Act of the Congress, and substituted its own “clear, unequivocal, and convincing” standard. This is but another case in a long line in which the Court has tightened the noose around the Government’s neck in immigration cases.

I.

I agree that § 106 (a)(4), the 1961 amendment to the Immigration and Nationality Act of 1952, relates to judicial review of administrative orders of the Immigration Service but, with due deference, I cannot see how “It is hardly less clear” that § 242 (b)(4) of the Act, as the Court says, likewise applies exclusively to judicial review. Indeed, on the contrary, the latter section was specifically enacted as the only standard of proof to be applied in deportation cases.

Before § 242 (b) was enacted the immigration laws contained no detailed provision concerning the burden of - proof in deportation cases. Kessler v. Strecker, 307 U. S. 22, 34 (1939). In Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), this Court extended the provisions *288 of the Administrative Procedure Act to deportation proceedings. Congress immediately exempted such proceedings from the Administrative Procedure Act and in 1952 established in § 242 (b) an exclusive procedural system for deportation proceedings.

In essence that section, § 242 (b), provides for notice and a hearing before a “special inquiry officer” of the Immigration Service; sets the standard of proof in such cases as “reasonable, substantial, and probative evidence”; and authorizes the Attorney General to issue regulations. In issuing those regulations the Attorney General established a Board of Immigration Appeals. The Board’s relationship to the orders of the special inquiry officer is similar to the relationship an agency has to the orders of a hearing examiner under the Administrative Procedure Act. The section also specifically provides that the regulations shall include requirements that “no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence” and that this standard shall be the “sole and exclusive procedure for determining the deportability of an alien under this section.” This was the first time in our history that Congress had expressly placed a specific standard of proof on the Government in deportation cases. And the language Congress used made it clear that this standard related to the “burden of proof” as well as “the quality and nature of the evidence.” The requirement of “reasonable” evidence cannot be meant merely to exclude “unreasonable” or “irrational” evidence but carries the obvious connotation from history and tradition of sufficiency to sustain a conclusion by a preponderance of the evidence. 1 Congress in overruling Wong Yang Sung, *289 supra, carved deportation proceedings from the judicial overtones of the Administrative Procedure Act and established a built-in administrative procedure.

This is made crystal clear by the reports of both Houses of Congress on § 242 (b). The Committee Reports, S. Rep. No. 1137, 82d Cong., 2d Sess., 30; H. R. Rep. No. 1365, 82d Cong., 2d Sess., 57, state in simple, understandable language that:

“The requirement that the decision of the special inquiry officer shall be based on reasonable, substantial, and probative evidence means that, where the decision rests upon evidence of such a nature that it cannot be said that a reasonable person might not have reached the conclusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that below.”

The courts consistently applied the standard of “reasonable, substantial and probative” evidence after the adoption of § 242 (b). See, e. g., Rowoldt v. Perfetto, 355 U. S. 115, 120-121 (1957).

The Court, however, in Shaughnessy v. Pedreiro, 349 U. S. 48 (1955), once again extended the Administrative Procedure Act’s provision respecting judicial review to deportation cases. The reaction of the Congress was identical to that of 1952 when it overruled Wong Yang Sung, supra. It enacted, in 1961, § 106 (a) (4) of the Act. Just as § 242 (b) was the first statutory standard of proof, § 106 (a)(4) was the first express statutory standard of judicial review. It provided:

“. . . the petition [for review] shall be determined solely upon the administrative record upon which the deportation order is based and the Attor *290 ney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive.”

Why Congress passed § 106 (a) (4) if judicial review, as the Court holds, was already exclusively covered by § 242 (b) is beyond my comprehension — unless it was engaged in shadow boxing. I cannot believe that it was.

The Court says that both the special inquiry officer and the Board of Immigration Appeals failed to state what the burden of proof was in these cases. Fault is found in the officer’s use of the phrase “solidarity” of proof “far greater than required.” This language was apparently patterned after this Court’s opinion in Rowoldt, supra, where the phrase “solidity of proof” was used. The findings of both the officers and the Board in these cases show specifically that the burden of proof followed in each case was that required of the Government in § 242 (b) and the Regulations of the Attorney General, i. e., by “reasonable, substantial, and probative evidence.” This standard has been administratively followed by the Immigration Service in a long and unbroken line of cases. See Matter of Peralta, 10 I. & N. Dec. 43, 46 .

The Court now extends the standard of Schneiderman v. United States, 320 U. S. 118 (1943), in denaturalization cases, i. e., “clear, unequivocal, and convincing evidence,” to deportation cases. But denaturalization and expatriation are much more oppressive cases than deportation. They deprive one of citizenship which the United States had previously conferred. The Schneider-man rule only follows the principle that vested rights can be canceled only upon clear, unequivocal, and convincing proof; it gives stability and finality to a most precious right — citizenship. An alien, however, does not enjoy citizenship but only a conditional privilege extended to him by the Congress as a matter of grace. Both *291 petitioners, the record shows, knew this, yet they remained in this country for years — 46 in the case of Sherman and 10 in that of Woodby. Still, neither made any effort to obtain citizenship.

II.

By treating these two cases as raising only a single issue the Court ignores some aspects of Woodby which greatly trouble me. Woodby sought review of the final deportation order against her more than six months after entry of that order. Section 106 (a)(1) of the Act specifically limits the jurisdiction of the Court of Appeals to consideration of petitions for review “filed not later than six months from the date of the final deportation order.” The legislative history of that provision makes it clear that Congress intended it to be strictly enforced in order to alleviate the spectacle of aliens subject to deportation orders and able to remain in this country for long periods of time by employing dilatory legal tactics. See H. R. Rep. No. 565, 87th Cong., 1st Sess. Since there is no time limit on petitions for rehearing or reconsideration, 8 CFR §§ 242.22 , 103.5, permitting review of a final order of deportation merely because a timely petition for review of an administrative refusal to reopen the proceedings has been filed would negate the congressional purpose behind the insistence on timely filing in §106 (a)(1). Lopes v. U. S. Department of Justice, 356 F. 2d 986 , cert. denied, post, p. 839. 2

*292 The Court holds only that “no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.” (Italics added.) The ground alleged for deportation of Woodby was that she had “engaged in prostitution after entry.” It has never been contended that this ground was not properly established. In fact it is conceded that Woodby engaged in prostitution. The only factual dispute involved in her case centers on the question whether her activities arose from duress and ended when the conditions compelling her to stray ceased to exist. It seems clear to me that since Woodby is raising duress as an affirmative defense she bears the burden of establishing all elements of that defense. See Matter of M— , 7 I. & N. Dec. 251 . And the record clearly shows that both the administrative authorities and the Court of Appeals rejected Woodby’s “bizarre” story. Under familiar principles those findings are binding on this Court, Universal Camera Corp. v. Labor Board, 340 U. S. 474 , and nothing in what the Court holds today affects that conclusion.

I regret that my powers of persuasion with my Brethren are not sufficient to prevent this encroachment upon the function of the Congress which will place an undue and unintended burden upon the Government in deportation cases. I dissent.

Thus the judicial review provision of the Administrative Procedure Act, 5 U. S. C. § 1009 (e)(5), limits the scope of review to a determination of support by “substantial evidence,” and 5 U. S. C. § 1006 limits the agencies to acting on “reliable, probative, and *289 substantial evidence.” This pattern has traditionally been held satisfied when the agency decides on the preponderance of the evidence.

In Giova v. Rosenberg, 379 U. S. 18 , this Court held only that denial of a petition to reopen or reconsider is reviewable. The Court did not specify the scope of review to be applied. The Court may be depending upon a concession by the Government on this point, but it is clear that jurisdiction cannot be waived. King Bridge Co. v. Otoe County, 120 U. S. 225 ; Good Shot v. United States, 179 U. S. 87 .