Brief for the Respondent in Opposition — Kimm v. Hoy

3 aa

ll

Hie

, BAS

la

2

| ; ; a E Page

ay,” I ns 8g eco e aesls ante et

'. Jurisdiction —_—_ ~~ yee 1 ory Pa 2

-* Question. preseritéd ae pee ae 32

Statutes involved 2

_ , Statement .- ae ae ; 5

; \ Argument ey =o alae - = . a 11

j Conclusion... *.._. ip Sy ae Jone 19

CITATIONS

Cases: :

Be renblatt v: “U Inited Stuter, No. 35, O.T. 1958, decided

| eG, WO0N. oon nc nes ences eee 15, 17

q Beilan v. Board of Education, 3 357 US. 399 14, £9, 16, 17

Bilokumsky’ Vv. Tod, 263 -ULS. 149 ba er 17

Brownell y; Cohen; 250 F. 24.770. 13°

Jay v. Boyd; 351 US. 345 oe 17

Konigsberg v. State Bar, 353 U.S, 252... —. 13, 47

Lerner v..Caséy, 357°U.S. 468..__- can 2 185, 16

Slochower v. Board of Education, 350 U.S. ‘BSI . 13, 14, 16

Vajtauer v. Commissioner of aaaieatien:2 273 US. 103 17-.

Wong Yang. Suny v. McGrath, 339 U S. ree 5

Constitution of the United States: ey

", * +First Amendment__._”.._____.. avec, SIEM: oc

* . Fifth Amendment ee ge a ee ” re a ae

3 Fourteenth Amendment......----.1.. . . 1. 14,15

Statutes and Regulations: r

Act of June 28, 1940, Sec tion 20(d), 54 Stat. 670,672,

amending See. 19(d) of the Immigration Act of

5 ae Ra Poe ce Ae a Fe eeepc sw etl e ey Ee, aa ae

Act of July 1, 1948, 62 ‘Stat. 1206, amending Ser,

_.19(¢) of the Immigration Act of 1917-.....02. .. 2,5, 12

. Act of-October 16, 1918, as amended by Section 22 of

>: the Internal Security Act of 1950,64 Stat. 987..._. 3, 16

Administrative Procedure Act, 5°U.S.C. 1001 1011. 5

8 CLF.R. §:151.3(e) (1949 ed... 1951 Supp.) (15 Fed.

* Reg. 7638)... ..:-.-..-.-..- re | 13

8 C.F.R. § 242:16(e). . E

- 615666—60——1..° ee :

;

Gn the Supreme Court of the Wnited States |

+ Octoser TERM, 1959

| . DismMonp KIMM, PETITIONER

me } Vv.

RICHARD oC. Hoy, District Direcror, IMMIGRATION

AND NATURALIZATION SERVICE’

\

ON PETITION FOR A WRIT OF CERTIORARI 10 THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT I IN OPPOSITION

OPINIONS BELOW

« The opinion of the court of appeals (R. +, 3-17:

Pet. App. 2a-18a) is reported at 263 F..2d 773. The

_ findings of fact and the conclusions. of law of the

‘district court (R..I, 36-41) are not reported.

The Record, which, as lodged in this Court, includes. five

volumes, is designated “R.” Volume I includes various doc-

uments related to the proceedings in the district court. Vol-

ume III contains a transcript of the pretrial. proceedings.

‘Volumes II’ and IV constitute the transcript of proceedings

‘in the district court. Volume V includes the proceedings in the

court of appeals. The transcript of proceedings before the hearing’

officer of the Immigration and Naturalization Service is included

‘in Defendant's Exhibit A. which lias been filed in this Court, and

is designated “Tr.” ’ .

oY

(i): a EF

2

a ae : JURISDICTION |

The judenent of the court of appeals (R: V, 18;

Pet. App. la) was entered on February 19, 1959.. A

' petition for rehearing was denied on March 30, 1959

(R. V, 19). The petition for a writ of certiorari

was filed on June 24, 1959. The jurisdiction of this -

Court! is invoked under 28 USS. C.1 1254(1).

QUESTION PRESENTED

Petitioner , being deportable for failure to main-

tain the ime status of a student, applied for the

discretionary relief of voluntary departure or sus-.

“pension of deportation. In the hearing on this ap-

plication, petitioner declined, on the advice of ‘coun-

‘sel, to’ answer whether he was or ever had been a

member of the Communist Party on the basis of the

First and Fifth Amendments. Petitioner's applica-

tion was denied on the ground that he had failed to

establish, as required by the statute, that he was not an

alien deportable because of membership in the Com-"

‘munist Party. The question" presented is whether

the denial of petitioner’ s application constituted an

improper exercise of the, authority to determine a

deportable alien’s eligibility for diseretionary relief. ,

| STATUTES INVOLVED =

The Act of July 1, 1948, 62 Stat. 1206, amending

Section 19(c) of the Immigration Act of 1917, pro-

vided: uth M : .

(c) In the ease of ‘any alien (other than one

to whom subsection (d) is applicable) .who is

deportable under any law of the United States

\

and who has proved good moral character for

the preceding five years, the Attorney General

g - may (1) permit stich alien to depart the United

. States to any country of his choice at his own

' expense, in lieu of deportation: or (2) suspend

deportatién of such alien-if he is not ineligible

for naturalization or if ineligible, such ineligi-

bility is solely by reason of his race, if he finds ~

(a) that sueh deportation would result in |

serious economic detriment toa citizen or le-

gally resident alien who is the spouse, parent, .

or minor child of such deportable alien; or (b)

that such alien ‘has resided continuously in the

United States for seven years or more and is

residing in the United States upon the. effective

date of this Act. * * *

The Act of June 28, 1940, Section 20(d), 54 Stat.

670, 672, amending Section 19(d’) of the ices

Act of 1917, provided:

(d) The provisions of subseetion (ce) shall

not be applicable inf the case-of any alien who is

deportable under (1) the Act of October 16,

1918 (40 Stat. 1008 [1012]; U.S.C., title 8, -sec.

137) entitled ‘‘An Act to exclude and expel

from the United States aliens who are members

of the anarchist and similar classes,” as

amended; * * *. er |

At the time of the consideration and decision of

petitioner’s application for discretionary relief,. the .

Act. of October 16, 1918, to which Section 19(d) of the

Immigration Act of. 1917, as amended, referred, had

been amehded by Section 22 of the Internal Security ~ |

ok,

a

Act of 1950, 64 Stat. 987, 1006-1008, to read:

[See 1] That any alien Who is acmember of.

any one of the following classes shall be ex-

. eluded. from-cadmission into the United States:

*

** * * aa

(2) Aliens whe, at any time, shall be or

Shall have Sheen members of any of thi

following elasses:

aa ee EEO, SE oe ee € *

(Cy ANtitis who are menibers of at

aftitinted with Ci) the Conimariint Part 7

of the Unined: Statess Choy any othe:

tolalitarian party of the Laited States.

ii) the C&miemmist Politiedl Assoei

then. Civ the Comuninist or other te

taliterian party of on State al the

Loita Stott ~ et aed Popereqy stote, ot

ol chtys polities on. veouraphiedl: sib

alivision of any foreign staterse(v) any

section, subsidiary, braneh, attiliate, on

subdivision of any such association or

party ; or (Vd) the. dircet predecessors

OV SHCCOSSOT =, ait any sue | Jayssoc lation

or party, regardless of what name such

group or organization may have used.

may now bear, or may hereafter adopt :

* * _ a +

See. 4. (a): Any alien who was at the time:

of entering the United States, or has been at.”

any time thereafter, a member of any one of

“* ©

the eldasses of aliens @¢numerated in SECs

tion 1 (2) of this Act, shall, upon the warrant

of the ‘Attorney General, be taken into custody

and deperted in the. manner provided in the.

‘Immigration Act of February 5, 1917. The

e:

e

ae

iF oe

5.

: eo oe een ee he applicable to

the classes of aliens mentioned in this Aet, ir

respective of the time of aad entry into’ the

4 hited States,

is ; _ STATEMENT

Ou April 17. °R. the Board of Pmmigration Ap:

peals, adopting tite findimos off the tril ON AMTED,

Toad thicet peritioter Wits sthhypect te Ceprort: Tiedt Pop

+

lath. Too mainte his eNCHaprt statis aso stadent.

The Pedra, hhoweve 1 ntlowed Hetitioher tocdeperet vel.

+, 4 . ;

Wintorres Twat rin CH a: is te how dhe tiie: P<SUb dpe te hatin

Of ie aena! }?! Pit. et W Visqay (Md isa So Vine bey ber Sire adote

i WAptacED ent Heth fs eden te lho Peaquyy a reese

‘ ‘ ' ! cr Aer {

aS . pti H } ’ 4 4 rie ; t

s

fe Wits tot tion required te depart. GQ Mia Poy oie,

J pest Director af Pmmniienation Witertes “Pret reienl

; tee rurddas ty » tbrart bij CeEee? “WTSI beeitye tb precise Yu

baeea Vert i ry tas ng Is peel’ the levoetits preeo’s bale dodow the

od His dy TOES. ccneniditie Sceetion Toei oof the

Emami ihren Net ol LOT Cxpre, jp loo)d ehitihia tu thie

Stan pens Sheu of ci jr tation. Oy bine 0. PG. the Dis-

tries Director Wrote petitioner that hie was befus

eiven aonew hearing te detertuine his deportabitity

asa result of this Court's decision in Woy Vong Sang

MeGrath, 339 US. 33, holding that administrative

procvedings for the deportation of aliens diiist conform:

to the aequiréments of the Administrative Procedure

Act, SAS, lOQ1-101L, At the hearme on June Tb,

cusegeemeeomaemnene

* The earher procpedings are désé ribo in greater detail in ithe 4s

ophuon of the-court of appeals (Peto App. 2a Ta).

:*

>

6

1950, petitioner's counsel ayked for a continuance

which was granted, - | “i a.

The hearing was resumed on October 2, 1950.

After some questions as. to petitioner's various resi-

dences and those of his family, the hearing: officer

asked petitioner's counsel if his client was applying

for suspension ‘of deportation, and counsel—-eplied:

That's right.” The hearing oftice stated that

“fajs vour client is.applying forA relief within the

discretion of the Attorney Gyferal the Examining

Officer miay inquire into. any of his residence or any

7 his business while within the United States” (Tr. 9-

Pet. App. Ja). Subsequently, petitioner's eoun-

zs state dl (Tr. 15; Pet. App. Ta): ee

My understanding of ‘this hearing and the

%

purposes of it are to determine what the re-

spondent has done, and whether he comes under

the discretionary relief applied for * * *.

After testimony by petitioner as to the varjous jobs

he had hefd and his assets (Tr. 13-16), this colloquy

ogeurred (Tr. 17):

EXAMINING OFFICER TO RESPONDENT:

Q. Mr. Kimm, are you a member of the

Communist Party.!

COUNSEL: rr :

Mr. Hearing. Examiner, I object to the ques-

tion. IT object to the question on the- ground

that it is in vielation of the first and fifth

amendments. T object to it on the ground that

it is in violation of self-merimination under

the Smith Act and possibly under the Mc Car-

ran Bill.

fay

| 7

HEARING EXAMINER TO COUNSEL:

As I have stated before the respondent is

applying for a, relief within the discretion of

the Attorney General and the government is

entitled to knew the complete history of the

respondent in order that a fair decision may

be’ rendered. The objection is overruled with-

‘out prejudice te counsel advising her'client not

to answer.

ow « + & * * :

~ Let the record show that the simiuiia does

~ not answer on advice of counsel. i

At.the final hearing on January 15, 1951, petition-

—ef's attention was called-to the quéstion which he had

refused to answer on October 2, 1950--*Mr. Kimm,

are you a member of the Communist Party ?’’—and

he again dedlind.to answer on the ground of possible

' self-incrimination. For the same. reason, petitioner

also refused, on the advice of counsel, to answer

whether he had ever been a member ye! Ry Commu-

nist. Party of: the United States ¢Tr. , 55-56).

In a decision dated January 1, a pine in .

‘Defendant’s Exhibit A), the hearing officer concluded

that petitioner way deportable ca the: charge’ that he

had remained ‘in ‘the United States after failing to

~ mainta'n the exempt status of a student under which

he was admitted. With respect to petitioner’s ap-

plication for discretionary relief, the hearing .officer

. found (Pet. App. 8a) : $

(2% That the respondent rad failed to prove

that he has been a person of good moral char-

acter for the past 5 years; .

615586692

S |

(3) That the respondent has declined to an-

swer questions as to whether he has been a

member of a proscribed organization, on ~

ground.of self-incrimination ;

(4) That the respondent has resided in le

United States: continuously tor 7 years or more ~

_and was residing: in the United States on July

1, 1948;

(5) That the caiaied declines:to answer

questions on the ground’ of self- inerimination

which might establish that the. respondent is

deportable on grounds specified in Section 19(d)

of the Immigration Act of 1917, as amended

[supra, ‘p.3}.. é a ao

The hearing officer further elucidated the relation of

these findings to the factors relating to discretionary . -

‘. | Pelief: |

The provisions of Section 19(¢) (1) and (2)

of the Immigration Act of 1917, as amended —

[supra, pp. 2-3], provide that certain relief may

be granted aliens within thé discretion of the

Attorney General. This felief is purely dis-

eretionary with the Attorney General and. no

right to the relief vests with the alien. In eon-

sidering an alien for discretionary relief the

Government of the United States is entitled to

know his entire background and whether or not

he is or. has been a member of a: proscribed

organization, and any information which would

_ show whether or. not he is a person .to whom

the discretionary relief provided in Section

19(c) should be extended. By declining to

answer questions as to whether he had ever been

a member of a proscribed organization, on the

ground of self-incrimination, the respondent de-

os

r s

_nies [sic] the government of knowledge to which

° it is entitled and the respondent places himself

i in a class of aliens to whom discretionary relief

5 | as provided by Section 19(c) of the Immigra-

F tion Act of- 1917, as amended,.is not available.

In. view. of thé’ foregoing it must also be

_ deemed that in view of his failure to answer the

quéstions propounded the respondent ‘has’ not

affirmatively proved that hie has been a person

of good moral character for the past five years.

' The hearing officer ac cordingly coneiuded (Pet. App.

: Ya-10a) :.

(1) That under Section 19(e) (1) of the Im-

migration Act of 1917,;as amended; the re-

_ spondent has failed to establish statutory eligi-

bility for voluntary departure in ‘Tie | of |

‘deportation ; _ a

at - (2) That under Section 19(¢)(2) of the Im ©

migration ‘Act of 1917, as amended, the respond- '

- “ent has failed to establish eligibility for sus-

oe — pensidn of deportation. — s-

He further concluded that the order of April 17, 1943,

granting voluntary departure should be withdrawn.

On: March 13, 1951, the Acting Assistant Commis-

sioner ‘adopted the recommendations of -the hearing:

officer and ordered ‘petitioner deported (the opinion is

. ineluded-in Defendant's Exhibit A).

The Board of Immigragion Appeals, in an opinion

- dated January 22, 1952 (ineluded in Defendant’ S Ex-

hibit A), dismissed petitioner’s appeal: With respect

‘ to petitioner’s refusal to answer questions as to Com- —

- munist Party membership, the Board stated :

err

~The right of a defendant against self-incrim-

ination in a criminal prosecution is not the

\ a 10

samé as the right of this Board to know all |

perti ent information about an applicant for

suspension of deportation. This is not.a crim-

_ inal prosecution. Respondent is asking a

special favor and must be willing to permit a

thorough examination of his eligibility for that

favor. Membership in the Communist Party,

present or past, is Most pe ‘rtinent to an applica-

tion for stispension, beeaiise under Section 19

‘(d) of the 1917 Act and. under Section 22 of the

Internal Security <Act, amending the, Act of

1978 [supra, pp. 3-5) Communist Parts" mem-

_ bership. precludes a grant of suspension or of

any relief, including ,voluntary departure. —

; The Board also sustained the denial of petitioner ?s

application for voluntary departure on the ground that,

petitioner had been granted this privilege by the order -

of the Board in 1943 (quoted by the court of appeals *

. App. atin and’ dems deliberatély failed to

‘ 6 FD

The order-of this. Board of April 17, 1943,

* quoted above, gave the right to voluntary de-

parture frora this country at times as specific

‘as possible under the circumstances then exist-

g. dt was a generous order, designed to in-

convenience respondent as Tittle as possible. It

does not. mean that the order gave respondent

the right to depart voluntarily from the United

, States at any time then or in the. future that

he might ¢hoose. We aré informed by the De-

partment of State that exit permits ceased to -

be required in October 1948. Respondent neg-

lected to depart from the United States within

90 days after the time that exit visas hecame

no longer necessary. The responsibility was on

respondent’ tg: inform himself when exit visas

ceased to be required.

11

_ As for counsel’s statement that the Govern-

ment has ‘‘no right to deprive’’ respondent of -

voluntary departure; the alien has been in the

: United States on sufferance for 14 years. He —

has been adequately warned repeatedly of his

position. Voluntary departure is a privilege;

it‘is not a right.: It was granted him once, and

he failed to avail himself of the privilege. bil

are not going to grant it again.

’ Petitioner thereafter filed this suit in the Distriet

Court. for the Southern District of California for

review of the deportation order and for ‘injunctive

“relief (Rv I, 22-27;.R. V, 10). The district court

‘= the decision of the Board of Immigration

ppeals concluding that petitioner had failed to estab-

lish éligibility for diseretionary relief (R. I, 36-41). :

On appeal (R. I, 42), the court of appeals unanimous- -

: ly eda the hearing officer’s findings (R. V, 3-18).

| . _ ARGUMENT

1. Petitioner: suggests { Pet. 7) that he was. found

ineligible for suspension of deportation and voluntary

departure on the ground that-he had failed to prover

good moral. character. In fact, however, the only

- issue in this case ‘is whether petitioner’s refusal

to answer questions concerning. Communist Party

membership. justified a determination that he had

failed to establish thdt he was ‘not ineligible. for sus-

pension of deportation*® under the Act. of June 28,

-*The decision of the ‘Board denying voluntary departure

also rested on an independent ground, which, we submit, ade-

quately supports_ the Board’ s denial of that relief wholly apart

from the question of the effect of petitioner's refusal to answer

certain questions. The Board concluded (supra. pp. 10-11) that

petitioner, having deliberately failed to avail himself of the

’ voluntary departure allowed ‘by its 1943, order, was not en-

=,

~

~~

~s

~-

~*~,

. aliens deportable for Communist Party membership. :

Since the hearing officer found (supra, p. 9) .that peti-

_ tioner had. failed to establish his eligibility, both under

the Act of July 1, 1948 (supra, pp. 2-3)*(good, moral .

r . 2

1940 (supra, p. 3), precluditig. discretionary relief, to

charatter) and the Act of June 28, 1940 (Communist

Patty membership), his decision must be sustained if

either ground.-is, valid. Moreover, the decision of the ©

Board of Immmigration ‘Appeals (supra, pp. 9-10).

rests on petitioner: ’s failure to establish’ his. eligibility

‘under the Act of June 28, 1 1940, and not on any failure

to. prove good moral charactet. .The Board's decision

is the final and controlling one,

- 2. Petitione ‘ry also assumes (Pet. 7) that he was im- ~-

properly found ‘ineligible for discretionary: relief

solely be CAUSE his: refusal] to answer questiéns about:

~ Communist, Party, membership, on thé basis of the

First and: Fifth Ame ndments, was considered as proof

of guilt. : ‘He claims -(Pet. 7) that. such ‘‘declination,

* * * was not evidence, ner could it justify any in-

ference: of guilt..’. This statement of the proceedings

is incorrect. Wile the: hearing officer and the Board

of Immigration Appeals ie not entirely, based

their determinations on the refirsal of petitioner to

answer questions pertinent to the statutory standards

- of eligibility, they did not. conelude that: the refusals

to answer constituted evidence of guilt as to any erimi-

nal or deportable offense or even justified an inference

of such guilt. On the.contrary, the hearing. officer

"titled to have the privilege granted agaiy. In aur view, there-

fore, the issue yaised by petitioner here only affects the deter-

-“thination that he failed to establish his eligi for suspen-

~ sion of deportation. .*

>

*

.

= .

-

—————x

e

oe MET | a a

ee

13

“ (supra, ‘pp. 8-9) and the Bo. d (supra, pp. 9-10)

merely found that, by refusing to answer pertinent .

"questions, peti itioner had failed to sustain his bur-

den of establishing. eligibility’ for discretiorfary relief.

8 C.E.R. § 1L51.3(e) (1949 ed., 1951 Supp.) (15 Fed.

Reg. 7638) (now 8.C.F.R. § 249.16: see Brownell

v.-Cohen, 250 F. 2d 770, 771 (C.A.D.C.). In other

words, the hearing: ofticer and: the Board concluded

that petitioner cannot establish his eligibility for

‘discretionary relief—which it is his. burden. to do—

by testifying to certain facts, while - depriving ‘the .

‘Government of other pertinent. and essential infor-

‘mation required by the statute."

‘A single sentence in the opinion of the ‘hearing officer could

conceivably be read to. mean that petitioner had failed to’ sus-

tain his burden of proof because his refusals to answer demon-

strated lack of good moral character; pike

* * * it must also be deemed that in view of his failure

to answer the questions propounded the respondent has not

‘ affirmatively proved that he has been a. ‘person’ of good

moral character for the past five years.

As so read, this determination might raise “questions under

the decisions of this,Court ‘in. Slorhower v. Board of Educa:

tion, 350 U.S. 551, and Konigsherg v . State Bar, 353 US. 252.

270-271.. Bit, in context (see the prev ious: paragraph of the

opinion (supra? pp. 8-9)), it is lek! that, the hearing officer

“meant merely that. petifioner could nop be found fo have

‘sustained his burden of proof when his refusal fo answer had —

prevented the government from obeaining: necessary informa-

tion concerning: Communist Party activities which:could estab-

dish his ineligibility for discretionary relief, under the Act of

July 1, 1948 (good moral charaeter) («upra. pp. 2-3) as well

-as under’the Act of’ June 28, 1940 (deportability for Com- —

munist: Party membership) («upra,-p, 3). Ir ‘any’ event, the

torrectness of the detisions of the hearing officer and Board

' do not. rest on petitioner's failure to prove dite moral charaeter

(see supra, PP. ‘I1-12).,

es 14

3. While this Court has never considered the par-

ticular question raised in the ‘instant case, it has in

_ several decisions discussed the effect which. govern-

mental agencies can give, under the First, Fifth and

Fourteenth Amendments, to refusals to answer- ques-

tions asked by the same or other governmental agen-

cies. In Slochower vy. Board of Education, 350 U.S.

551, the Court held that’ the’ automatic dismissa! of a

school teacher for refusing to testify before a federal

; legislative committee on the ground of the Fifth

‘Amendment violates ‘due process. In reaching this

conelusion, the- Court held that the exercise. of the

privilege against self-incriminatien does not justify a

-_govertynental agency in finding a confession or. even

an inference of guilt. Id. at’ 5554 BAT: But this

Court also indic ‘ated that ot ill. governmental action

predicated on refusal. to. answer proper questions

would v iolate due process, even though the silence was

_ accompanied by uiypcation of the Fifth Amendment.

Thus, it was suggested that it is important in deciding -

the constitutional ‘validity of such governmental ac- :

tion whether “the plea resulted from Mistake, Inad-

vertence or legal advice conscientiously given * * *.""

Id. at 558, More important, the Court indicated that

‘a sehool teacher might validly be dismissed for re-

fusal to answer pertinent questions which are “part of

a bona fide attempt to gain needed and, relevant infor-

mation” concerning the fitness of the teacher. | Jbid..

These implications of Slochower have been made

clearer by the subsequent decision in Beilan y. Board.

of Education, 357 U.S. 399. There, the Court up-

- . —

.

Oe CO te oes

etna So ty: age Wie

15

f held the. dischat'ge of. a school teacher. for **ineom-

: petency”? based on his refusal to answer questions

: involving Communist’ Party activities asked by the

Superintendent of Schools despite. the teacher’s con-

\ tention that to do so interfered with his rights under

the First "Amendment... The Court stated that the -

| person questioned must. bes given some indication

‘that governmental action may result) from his”

refusal to answer (id. at 408 : SOQ! Lerner NV.

Casey, 357 US, 468, 478) *° and that refusal to answer

cannot justify any inference of guilt. 357 U.S. at

409; sev also td. at 409-411 (Mr. Justice Frankfurter

hae

, .., * While the teacher did not squarely mvoke the First Amend-

f + ment in refusing to answer, he did: refuse to answer “questions

about political: and religious beliefs * * *.° 357 EUS. at 401.

Moreover, Beilan ‘explic itly claimed in arguing his case in this

Court that his discharge violated his right- under thé First

Amendment. See Brief for Petitioner, No. 63, O.T. 1957, pp.

19, 32. The Court indicated that despite Beilan’s claim of |

~ interference with: his First Amendment rights (357 U.S. at 405),

the: superintendant still had the right to ask the questions and

discharge the employee when he refused to answer.. It ‘is

Important to note that the Court's decision is not based on any

determination that the First) Amendment was unproperly in-

voked.. Cf. Barenhlatt vo United States, No. 35, O.T. 198%,

decided June S, 1959. if oe).

*In the- Lerner case, the Court upheld:the discharge of a city

¥ + employeeas a result. of his refusal to answer questions asked

‘ by the city on the ground of the Fifth Amendment. Unlike

Be ilan, hawever, the Court's decision was based, in part, on

the ground that the Fifth ‘Amendment does not apply

through the Fou-teenth Amendment to state proceedings and

that therefore. the employee had no constitutional right to si-

lence, 357 U.S. at 478-479. But the Court did hold that re-

fusal to answer justified the: city’s conclusion that the employee

“was of “doubtful trust and reliability.”

pilin

ne a

16

econeurring) ; Lerner v. Cascy, supra, 397 ULS..at 475.

In sum, this Court has held that governmental action

may be based on a refusal to answer, even when a

constitutional right to silence maybe involved, where

the governmental ageney has a strong interest In the

questions asked, where the person questioned is pro-

tected. from Inistake or surprise, and where the gov-

ermnient Ul aetion ds notta deté rmination ot cult teased

on the refusal to answer.

The decisions of the hearine. officer end the Board

Fhotieration Appeals are fidiv consistent with tie

principles stated ait Nlochower, eda, aad |

inst, the (destions coneertine -Conniaist Pea

membership were very etearly pertinent te.the stat

tory provistorn tH hy prohibiting all discretionary re

ler te giteus deportable on the efonind of Corunitnist

Party 4 ernibie istinyy (Act afe- Ene ae ri, NPWS

hak lite rhab Seenrity Net oof 1950, 6 ee Supe,

pyr. te). second, petitioner's vetusal te answer was

given on the advice of cotttisel notwithstanding the

statement bye the he aripe officer ove rruling the re Masi 1

to aliswer + thie: eround that. tie, vovernent

“is entitled to know the conmiplete ee of fay tie,

tioner| dn order that a fair deeision may be rer

dered” Csapra, pea). Third. as showmabove (sapra,

pp. 12-13), the heariic¢ officer and the Board made

** . ei . ° >

ho conclusion and did not draw an inference of

Soult” of Party membership from the refusal te

answer, | _ |

Moreover, in the instant case, there are other sig-

‘nificant factors justifying the administrative deter-

——

“

>

ete

oo

ee

ies Me

“

s

1 BRR ON

.@

17

mination that petitioner had, bv reason of his refusal

to answer pertinent questions, failed to establish his.

eligibility for suspension of deportation, © First,

unlike the cases involving. the. discharge of govern-

ment employees, the burden of proof Was on petitioner,

He was found ineligible tor’ diser ‘etionary relief for

failing to sustain this burden, without any affirmative

determimition of incompetence, unreliability, bad

nigral sage or Commitinist Party, membership.

(NM pray pop. 12-135). Seeond, it has lone been held hy

thts Court that paula proceedines, heing e¢ivil

Ihents of erinaiicd) prose eations, Vite. the Court

has alowed adverse factual iteavnees to be drrwn

loa deportation procecdine from the refusal of the

Alii cte answer questions, Biloliusiiy Ne, Tod, en

US. Pi boo 19: Vaglaaer Vv, Comintssioner of Lin-

Me tot fre 41 bined Uyeotnaar WK thee <tiiet reuiilre-

widgration, 275 U.S.. wo; 141-412" And, third. dike’

sibdacieeecd relied from deportation has beer Ss tu

an actal crace’ " Jaw vy, Boyd TUS S. ab4t),\-3-)-

L Petitioner relies heavily (Pet. 7) on am alle me

be

contliet between the detertiiiation that he had not

established eligibility. for diseretionary relief and the

decision of this Court in Noulyshorg ve State Bar,

supra, et Us. 252. Therts the Court held that the

due process clause of the Fourtecnuth Amendment was

Violated by the re ‘Tusal of the state to ) allow hKonjgs-

e

These cases, however, do not Consider whether an inference .

may be drawn whew the refusal to answer is accompanied: by a

elyim of constitutional right. 3

18

berg to practice law where the evidence did not

rationally support the two grounds of refusal, 7.e.,

‘failure to prove that H® was of good moral character

and that he did not ye “ate overthrow of the federal

or state government by unconstitutional means. Ini

reaching this , decision, however, the Court clearly

stated that it was not deciding whether the state could

have barred Konigsberg solely hee ‘ause of his refusal

to answer questions coneerning Communist . Party

activities because it did not believe that this was the

rationale underlying the state’s ene Td.

at 259-262."

. The Court did say, howevely that if the state ‘had

hewted Setiethens stele beeause of his refusal to

respond to its inquiries into. his political associations

_and his opinions about matters of public interest, then.

we W ould he compelled to decide far-reaching and com-

plex “questions relating to freedom of. speech, press

and assembly.” Id. at 261. But this question, as to

w hether governanent: | action ‘may be based on the. re-

fusal to answer. questions involving Communist

Party activities, was subsequently settled hy Betlan v.

Board of Education, supra. Moreover, in-Barenblatt

. United States, No. 35, O.T. 1958, decided Jure 8,

a this Court held that the First Amendment does

not justify the refusal of a witness before a Congres-

_ *QOn the other hand, the dissent, disagreeing as to the ra-

tionale of the state’s determination, stated that the state “was

justified in concluding that refusal to answer these questions

under these circumstances means that the applicant has failed

- to meet the requirement that he set forth his re

affirmatively.” ‘353 U.S. at 281.

‘a

>

4

19

. £

sional committee to answer questions concerning Com--

munist Party activities. It therefore seemsthat the

First Ainendment would like Wise not. Justify an alien,

voluntarily applying for discretionary rélief fron. de-

portation and bearing the burden of showing his eligi-

bility under the statute, in refusing to ayswer similar -

pertinent questions asked by the immigration hearing

officer acting within his authority, let alone support.

petitioner's nore far-reaching contention that no gov-

ernmental action of any kind can be based on the

refusal to answer, i

CONCLUSION

For the re asons stated, it is reupcettully. wiendtie d:

“that the petifion for a writ of certiorari should be

de nied, | .

J. LEE ae

Solicitor General.

Mancoum R.W ILKEY,

Assistant Attorney General.

~Ropert S. Erpaut,

: i». Ropert G. Maysack,

. + . Attorneys.

Jury 1959, f

%,

-

JS GOVERNMENT PRINTING OFFICE 1989

pal °

fo)

ite,

Ae

ILE COPY = |[-!

" "UINES-> UpPrel)

MAR 10

©

Ricnarp CL To

IN THE

Supreme Court of the United States

Oc roBER TERM, 159

@ X00

Diamonp Kiam, Petitioner,

°

v. is ‘

. District Director, Immigration

vaturalization, Service

,

+. Re

“and

for the Ninth Circuit

., ®

BRIEF FOR PETITIONER .

on)

” ,

JOSEPH FoORER

‘ | Davip Rei

‘711 Mth St. N. Wee

Washington, DOL.

Vintiam M. Samus

Poot Brooklyn Ave:

os Angles, California "

j Afforie us ig Pelitioney

ONES. BROWNS,

ry

dete ‘Verk |

‘ ; « ° ’ . 3 ‘

On Writ of Certiorari to the United States Court of Appeals -

‘d

Inde Ry :

=i Page

TE ty. eres oa ao a eaten epee ay

Jurisdiction ..... SP EA PRE LED fae ee PEL eS Wika ©

NE ee rs ee sae 2

I I oe eg fin pace Cpe henne eee ee 3

. Statement of the Case ..... See errr ee Sceteadeiceccs >

‘Summary of Argument .2.:........ ~ aes oe ave ae

sig PT ee Pe Roe EN OT OF Se ne ey ter aD 10

. Petitioner's silence on the basil of the privilege

was not a valid ground for holding that he failed A

_ tp prove good moral character Perr e ee oticss

"I: Petitioner’s-silence was Bet a valid ground for.

disqualifying him by reason of the anarchist

Bc MS Meech wae eee "12

The burden of proving applicability of that

"act was on- the Service, and that burden was

not carried by the absence of evidence on the

es ed a a eke EET SEE Eyre ae 12

B. Petitioner’s refusal to assist the’ Immigra-

_. tion Service in détermining whether he was

* under the anarchist deportation act was not

a valid ground for holding that he was in-

eligible for suspension ........ cae aga eal at odd

IIT. ‘Petitioner’s claim of the privilege Ww ould not’ ie

a valid ground for refusing suspension in’ the

exercise of the Attorney General's discretion is ee

Conelision’ .:........... Davai eae oe ee i

° ?

ii Se ~ Index Continued.

Cases Ciren |

. nue

-Beilan y. Board of Edue ‘ation, 357 ULS. 309 Peon ako ae

Caddeo v: MeGranery, 202 F. 2d S807 2.2... iiurenkaees Ee

ri v. Press, M7 U.S. 522 ..=..: Ey ree, ee gs ave ae

Grunew ald vi U nited States, 353 U. oy Perper 10, 12,15

Javierr’ y - Central Altagraci ia, 217 C ‘ 8. 502. a Se - 12:

Kimi v. Hoy, eg Sn ree a ee

Konigsberg v. State Bar of California, 353 1.6. 2e:. J

Lerner ¥, Casey, 357 U. 8. 468 .......... 2.0.5. acs 1G

Marbury v. Madison, 1 -Craneh (5 U.S.) 137. wees Pee 12

Mastrapasqua v. Shaughnessy, 180 I. 2d 909, Seat aces 17.

Melachrinos v. Brownell; 230 A. eae or, ae

Nelson v. Los Angeles, No, 152, Oct. T. 1959, Feb. 29.

ERAS Ot OPS GA ee 16

- Quinn v. United States,.349 ULS. 155 0.0... ree heya

Schlemmer v. Byffalo R. & PLR. Co., 205 U. =, Gees 13

Schware v. Board of Bar Examine Ts, 303 U.S. 282....°°11

Slochower v. Board of Education, 350 U.S. 551. sake. ae

Spectofv, United States, 193 F. od 1008 .:...... ce 30

United States ex rel. Accardi v. Shaughnessy, 347 U.S.

P60 2) O'R EM Oe Ae 8 WH 8 6 Oe eK 6 oe oes KO "Ree eee 5

United States ex rel. Belfrage v ‘, Shaughnessy, 212 F..

i Ck en LN es ay ae uae ao EP ee ee 18 saad

United ae ex rel, Hintopoulos v, Shaughnessy, 308

-ULS. a a eu, alae Shek aso. aan 17

C elton Siukes éx rel. I ‘artheriiades *, Shaughnessy, 146

ae Gara sine ae ar ele ote V7

ae. , J

Se oe STATUTES .

2, B. Code, ane. 190402) ............ ee uae ae d

. bomigration: Act.of May 26, 1924, as amended, see,

~ £(e), 43 Stat. 155, 45 Stat, ca es et, ae

Act of June 28, 1940, see. 2O(d), 54 Stat. 670, 672, .

_ amending sec. 19(d) of Immigration Act of 1917... <1

Act of July 1, 1948, 62 Stat. 1206, amending sec. 19(¢)

of Immigration Act of 1917 ................04-. 1,5

Internal See urity Act of 1950, see. 22, 64 Stat. 987,

1006-1008, amending Aét of Oct. 16, 1918 (anarchist

Do IE a ee Ae

~ Immigration and Nationality: Act, sec, - 405(a), 66 Stat.

REE ESE SIE ep Sr Se ene ae 5

| | MiscELLANEOUS

Beveridge, The Life of John Marshall (1919) ....... _

te IN THE

- Supreme Couwt of the Vnited States

Oc TOBER TE RM, aned

No. 139

DiaMonpd Kimo, Petitionér,

v.

RicHari) C, Hoy, District Director, Immigration

and Naturalization Service

On Writ of Certiorari to the United States Court of can. aie

for the Ninth Circuit © ;

.BRIEF FOR veo

s OPINION BELOW

The opinion helow (R. 89) is reported at 263 a 2a -

e..

° - JURISDICTION*

The judgment below ‘was: entered on February 19,.

1959 (R. 95). A timely petition for rehearing was

denied on March 30, 1959 (R. 95)... Petition for cer-

tiorari was filed on June 24, 1959, and was granted

- on October 12, 1959 (R. 96). The jurisdiction of the °

Court rests:‘on 28 U. &. Code, see. 1254(1).

i

STATUTES INVOLVED

The Act of July 1, 1948, 62 ‘Stat. 1206, amending

_ Section 19(¢)- of ‘the Immigration Act of 1917,

provided : aos |

(c) In the case of anv alien (other than one

to whom subsection (d)_ is applicable) who is

deportable under any law of the United ,States

and who has proved good moral character for the

preceding five vears, the Attorney General may

(1) permit such alien to depart the United States

‘to any country of his choice at his own expense,

in lieu of deportation; or (2) stispend deportation

of such alien if he is not ineligible for naturaliza-.

tion or if ineligible, such ineligibility is solely by

reason of his race, if he finds (a) that such deporta-

tion would result in serious economic detriment ©‘

to a citizen. or legally resident-alien who is the —

spouse, parent, or minor child of such deportable.

alien; or. (b) that such alien-has resided continu.

ously in the United States for seven years or more

~and is residing in the United States ipon the

effective date of this Act. * * *

The Act of une 98, 1940, Section 20(d), 54 Stat.

670. 672. amending Section 19(d) of the Immigration

Act of 1917, provided :

(d) The provisions of subsection (¢) shall not

be applicable in the case of anv alien who is deport-

able under (1) the. Act of October 16, 1918 (40° 4

Stat. 1008 [1012]; U.S.C., title 8, see. 137) entitled +

‘An Act to exelide and expel from the United

States aliens who are members of the anarchist

and similar classés,’’-as amended ; ati a

At the time of the consideration ‘and detilionn of -

petitioner’s application for discretionary relief. -the

Act of: Octoher 16, 1918, to whigh Section 19(d) ef_

the Tmmizration Act of 1917, as amended, referred, |

had been amended by Section 22 of the Internal Seeur-

ity Act of 1950, 64 Stat. 957, 1006-1008, to read:

‘{Sec. 1] That any alien who is a member of any

one of the following classes shall be excluded from

admission into the United States: :

,

. * ee . . ax. «

(C) Aliens who are members of or affiliated

with (i) the Communist Party of the- United

States, (ii) any other totalitarian party of the —

United States, (ii) the Communist Political

Association, (iv) the Communist or other totali-

tarian party of any State of the U nited States,

of any foreign state, or of any political or geo- —

- graphical subdivision of any foreign state; (v) .

any section, subsidiary, branch, affiliate, or sub-

division of any such association or party; or

(vi) the direct predecessors or successors of any

such association or party, regardless of what

name such group or organization may have used,

‘may now bei ar, or may hereafter adopt

« * * +

Sec..4. (a) Any alien who was at, the time of |

entering the United States, or has been at any time

"thereafter, a member of-any one of the classes of |

‘aliens enumerated in * * * section 1 (2) of this

Act, shal, upon the warrant of.the Attorney Gen-

- eral, be taken intd custody and deported in the

manner provided in the Immigration Act of Febxu-

“ary 5, 1917. The provisions of this section shall

‘be. applicable’ to the classes. of aliens mentioned in

this Act, irrespective of the time of their wmnry into |

‘the United States.

QUESTION PRESENTED

Whether petitioner was lawfully held ineligible for

suspension of deportation because he declined on the

basis of the privilege against self-inerimination to tes-

rg

- 4

tify in the suxpension proceeding whether he was or

ever had been a member of the Communist Party.

STATEMENT OF THE CASE

| Petitioner _a native of Korea, was.admitted to ie

United States on July 6, 1928, as a non- quota immi-

grant student unger section 4(e) of the Immigration

Act of May 26, 1924, as amended, - 43 Stat..155, 45 Stat.

1009. He attended schools in the United States until |

1938, receiving baccalaureate and graduaté degrees in

minitig and metallurgy. (R. 75, 80.)

War between Japan and China had broken out in

_ 1937, and, petitioner was unwillingeto return to Japa-

nese-occupied Korea, where he would have had to con-

‘*tribute to Japan's w ar niachine by working under gov-

ernmental authority as a technician. Accordingly,

after he stopped attending school, he obtained work |

and. remained in the United States.-(R-38; 75-76, 80-

81.) . °

Deportation proceedings were -commenced against.

petitioner in December 1941, culminating in an. order

of the Beard-of Immigration Appeals of April 17, 1943.

Petitioner was found deportable for having failed to

‘maintain, the-exempt student status under which he

had been admitted. However, as a result of a finding

of good moral character ‘for the preceding five years,

he. was granted permisison to depart voluntarily from

thet nited States. (R. 14-15, 56.)

The privilege of voluntary departure was academic

during thé war, and’ petitioner continued to stay and’

work in the United States (R. 38, 48, 89). -In July

1945, he entéred the employ of the Office of Strategic:

Services at its solicitation, and was. trained for a secret

- missicn into Japanese-occupied territory as an Ameri-

can spy. The Japanese surrender came. before the

mission could be fulfilled, and m= September 1945,

: petitioner was released from the OSS. (R. 48-51, 29.)

He then made. several applications to the State De-

partment for an exit permit to return to his homeland,

but never rec veived a reply (R.38- 40. 78- 7 ).

“Thy “April 1949, the Immigration and Natuiabiation

Service ordered petitioner's deportation hearing re-

opened in order to allow him to apply for suspension

of deportation under the amendment of July 1, 1948 —

(supra, p. 2), which liberalized section 19(¢) of the

cata seal Act of 1917, as amended (RR: 53-54, 23,

77).' The amendment author ized the Attorn®y General

to suspend deportation for, inter alia, aliens (other

than those to whom section 19(d) of the Imnigration

Act was applicable) who proved good. moral character

for the preceding five years, were not ineligible for nat-

ufalization or (like petitioner) were ineligible solely

because of race, had resided continuously in the United

States for seven vears, and resided in the United States

on July 1,.1948. Among the aliens to whom the ‘bar

of section 19(d.)) applied were aliens deportable under

the anarchist deportation act of October 16, 1918. This

act, was amended by section 22 of the Internal Security

Act of 1950 to include aliensewho had ever beetiimem-

bers of the Communist Party. (See supra, pp. 2-3.)

At the reopened hearings, held-in 1950 and 1951, pe-

titioner applied for suspetision of deportation (R. 23,

'The 1948 provision remains in effect.fog suspension applications

which, like- petitioner's, were made after-its enactment and prior

to its repeal by the current Immigration «and Nationality Act.

See the savings clause, sec. 405(a) of the latter Act, 66 Stat. 280 ;

United States ex rel Accardi vy. Shaughnessy; 347 US. 260 , 261 n. 1.

Department. contracts, (R. 63).

a 6

37). He introduced affidavits attesting. to his good

character (R.°54,°64) and a letter from the War. De-

partment lauding him for his OSS. service (R. 66):

“The Immigration and Naturalization Service intro-

duced a report of an investigation it. had made of

petitioner. This-xhowed that nothing derogatory “had

been discovered conéerning petitioner’s moral char-

acter or loyalty to the United States, and that he had

‘a-respectable employment history and no criminal rec-

cord, (R. 59-62, 45.) "The Service alsd introdueed an

FBI report, which revealed no derogatory information -

and showed that in 1943 petitioner had been cleared |

by the War and Navy Departments for employment —

on classified, confidential or restricted War and Navy

ae ‘ pee ‘ : —

Petitioner was questioned. at length by a Service

representative, whose inquiries were permitted by the .

hearing officer on the theoyy that since petitioner\ was

applying for discretionary relief, the government Was -

entitled to know ‘‘all of the facts’? about him and ‘his

‘complete history’” (R. 31, 34). In the course of the

interrogation, the Service representative asked peti- -

tioner whether he was or ever had been a member of

the Communist Party. On advice of his counsel, peti-

tioner claimed the privilege against self-inerimination

and refused to answer. (R, 34. 52-53.) Na evidence

was introduced that. petitioner was or ever had been

"a member of the Communist Party. Nor was any ether |

evidence introduced derogatory to petitioner or adverse |

to his applhieation.

— The hearing officer reconimiended denial of suspen-

sion and withdrawal of the privilege of voluntary de-

parture on the ground that Hetitionér, by. asserting his

- privilege to the questions on Communist Party memher-

’

*-

a he

os

7

ship, had placed‘himself.‘‘in a class of aliens fo whom

suspension relief... is not available’* anid had failed to *

prove the statutory requiremént of good moral ehar-

acter for the preceding five years (R. 71-73). The

Acting Assistant © ommissioner of the Servivre adopted

the hearing officer’s recommendations on the ground

that as a matter of administrative discretion relief

would be denied because of petitioner’s elaim of the

privile ge against self-incrimination (R. 74). The

Board of _Immigr ation Appeals‘affirmed because of the

petitioner's refusal 1 to answer the questions about Com-

munist Party membership. (R. 77-78). We. discuss. its

a later (infra, p. 14).

% \

a \

‘Fhe petitioner brought suit against the District

Director of, the Service. to enjoin deportation, alleg-

_ ing, among” other things, that the denial of sus-

pension was illegal (R. 1, 4). The District Court re-

viewed the administrative record and ‘granted: judg-

"ment against. petitioner (R.12). -On the issye of ‘sus-

e

pension, the District Court found (R. 10):

The finding 6f the hearing officer; as affirmed by

‘the Board of Immigration Appeals, that the plain-

tiff had not affirmatively proved that he had been

a person of good moral character. for the past

five years, and that he was ineligible for the dis-

cretionary relief of suspension of deportation un-

der the provisions of Section 19(c) of the Immi-

gration Act, as amendéd [8 U.S.C.°155(¢) 1950

Ed.], is supported by reasonable, substantial and

_ probative evidence:

The Court of Appeals affirmed on the same grounds

(R. 93, 95).

g

. : . a . j 4

SUMMARY Dod ARGUMENT —

The Special lentiie v Officer found that petitioner

had failed to prove ‘good moral character by- reason of -

refusing to answer the questions on Cormmunist Party

membership, ‘and hence was ineligible for suspension

~. under the statute. The Distriet Court and the Court _

of. Appeals sustained this finding.“ . ° KS

This was clear error.’ The refusal] to answer oft Fifth

Amendment grounds was not evidence and did. not jus-

tify any inference of guilt. The only evidence in the

record amply establishes petitioner's good moral, char-

acter. Nor can reliance on the Constitution, be eon-

sidered disgre ne eoriduct.

A. The court below akso ‘held petitioner ‘ineligible

because he ‘‘failed to-sustain his burden’’ of proving

that he was not precluded from suspension by being

within the anarchist deportation act, as amended.

Disqualification under the anarchist deportation act

is.stated in the suspension statute*as an exception.

Hence the burden of proving such, disqualifieation is»

on the

overnment. Otherwise the alien would have

©

the burden.of proving a negative. Moreover, the

statutory /text draws a distinction between the pre-

conditions which the alien must prove and the dis-

“qualifying factor of coverage under the anarchist. de-

portation act. Since there was no evidence that peti-

tioner was or had been a member of the Communist

Party or was ciherwise proscribed by the anarchist.

_\ deportation act, petitioner cannot be held ine¥igible as °

disqualified under that aet. °

! . ,

B. The biel of Dmigration Appeals apparently

denied suspe nsion on the ground that petitioner hada

duty, which he failed to discharge, to answer the Serv-

ice’s. questions relating to the possible applic thility

of the anarchist deportation act. But “nothing in

the statute requires, as a term of eligibility, that

the alien coaperate with the Service ‘in its inves-

tigation of him. Even if a general obligationoto

cooperate were read into the statute, this would be

overridden by the Fifth Amendment, which gives a

pr ivilege of Silene e.

To interpre t the statute as conditionirig suspension

“on-the alien’s non-assertion of his privilege would

prefer the dubious policy of the anarchist deportation

‘net over. the policy of the Fifth Amendment.

The Court hes Sustained the power of cities de dis-_

charge employees for refusing to answer, on constitu-

tional grounds, questions asked or direc ted to be an-

swered by the cities. These cases mere J¥ sustained the

power of the cities to discharge for hon-cooperation

_¢laimed to evine ne lack of candor or. insubordination.

The “initial question. here, however, is not the power

of. Congress, but what it did. It did not make rion-

cooperation a disqualification. Furthermore, what-

, ' ; f —

ever may be the case.as tostate power, which is not hm-

ited by the privilege against self-incrimination. the

Fifth. Amendment - prohibits the federal government

from inflicting adverse, dise ‘riniinator Vy consequences”

on account of a privileged silence.

ccc 7

It is doubtful that this case presetits, in its present

posture, the issue of.whether the Attorney General

abused his discretion. Since the Board of Immigra-

s 7 . ; ' . _ *

tion Appeals: held petitioner ineligible for discretion-

ary consideration, the discretion was not exercised. But

it the question’ iN here, it is unconstitutional, and at a

minimum an abuse of discretion, for administrative

_ .offigials to denigrate the Constitution by penahzing or.

- diserediting an atien for exercising his* constitutional

pr ivilege. : .

" ARGUMENT

I. PETITIONER'S SILENCE ON THE BASIS OF THE PRIVILEGE

WAS NOT A VALID. GROUND FOR HOLDING THAT HE

FAILED TO PROVE GOOD MORAL CHARACTER.

' Under the applicable suspension statute, an ‘alien

must satisfy certain preconditions before he is entitled

to have ‘the Attorney General exercise discretion as

to whether to suspend his deportation. in addition,

aliens deportable under the anarchist deportation act,

as amended, including those w ho were ever ‘members

of the ( ‘onmunist: Party. are exgepted: from relief.

“Oneot? the prec -onditions is that: the alien prove good

moral character for the five vears preceding his ap-

plication. The Special Inquiry Officer fotind that peti-

tioner hid failed to meet this requirement because of.

| his failure to answer the questions about Communist.

~ Party membership (R. 72:73).. The District Court

“(R. 10) -and the ¢ ‘ourt of ‘Appeals (R. 93) sustained .

the finding. ¢

The finding Was ¢ Jeavly. wrong. Pe titloner's refusal

to answer on Fifth. Amendment grotinds was not evi-

dence and cannot: justify any inference of . guilt.

Slochower Vv. Board of Education, 390 U.S. 551; (rane-

wald vy. United States, 353 U.S. 391, 421. The only’.

- evidence in the record amply estiublished petitioner’s

good moral character, there was no. jevidence to the

-

°

2

d1

_ contrary, and the Service's investigation had oo

nathing derogatory about himi ( supra,,p. 6).

In Konigaberg Vv. State Bar of California, 353 Ss.

252, a Committee of Bar Examiners, rejected an ape

plication for admission to the bar on tlie grounds that

the applicant, by refusing to answer questions about |

Communist’ Party membership, hail ‘failed to demon-

“strate that he was a person of good. moral character

and had “failed to show that he did not advocate the

overthrow the Government of the United States or of

the S “s by’ force, violence or other unconstitutional

means’’ (at 259). ‘This Court held that the rejection |

was so arbitrary and discriminatory as to constitute a

detiial of due process and equal protection. | It follows

that the determination in this ease that petitioner had »

failed to prove good moral character is invalid.

Furthermore, even if petitioner had answered the. -

questions in the affirmative, there would have been no

adequate basjs for a finding that he laked or had failed

to prove good moral character! A finding that (om-

-mutmist Party membership ipso faeto establishes bad

‘mor al haracter was. held in Schware vy. Board of Bar

Eraminers, 853 U8. 232, to be so arbitrar¥ as to vio-

late due pracess and the equal protection clause. -A

contrary view would compel. the obviously irrational

conclusion -that. the many millions of Communists

throughout. the warld, including “famous scientist's.

Writers, musicians, and artists, are .all morally ,de-

Jinquent. : “ath Oe ie

~

Nor can it, he: argued that granting that no atv Ese

inference can bé drawn from petitioner’s silence, never- *

theless his assertion of the privilege. was itself a

disreputable’ action. It is unthinkable that reliance _

; 2 4 ; . °

a 12.

upon ‘the Constitution is disgr acing conduct. Grune-

-wald vy. United States, supra, held that a clainr of the

privilege does not reflect on the credibility of a wit- .

ness, As the-concurring opinion there stated (at 425-—

426), ‘It seems: peculiar]; incongruous and. indefens-

ible, for. courts which ce: °-t and act only under the

- Constitution to. draw icferénces of lack of honesty

for inveeation of a privilege’ deemed worthy of en-

<hrinement in the Constitution": 7

be pr ivilege against self- -iner imination was founded

in struggles’ for- religions and political liberty, and his-

_ tory is replete with irs wauces i which it. was invoked

by persons of high. morality. At the December 1801

Term, Levi’Lineoln, Jefferson's Attorney General, in-

voked the privilege before this Court. See Marbury v.

Madison, 1 Cranch (5 U.S.) 137, 144. No one sec us

to have considered that he thereby ineurred discredit.

On the contrary, in 1810, President Madison on Jeffer-

son's recommendation offered Lincoln appointment to

the Supreme Court. Lincoln declined hee ‘ause of ap-

.proaching | blindness, and the vacancy was filled by

Joseph Story. IV Beveridge, The - of John Mar-

“shall (1919) 108-10. ak /

Il. P ONER’S SILENCE WAS NOT A VALID GROUND FOR.

DISQUALIFYING HIM BY REASON vOF THE ANARCHIST

’ _DEPORTATION ACT. /

-A, The Biiyden of edits Applicability’ a That Act: Was on |

the Service, °and That Burden Was Not Carried by the

Absence of Evidence‘on the Subject

The an below seems to have ‘also held that peti-

. tioner was- ineligible because by. refusing .to answer

the questions on Communist. Party membership he -

had “failed to ) sustain his, burden”? of proving that

*

3.

were

che was not precluded from suspension by being within

the anarchist deportation act, as amended (R, 93).

- As we have seen, aliens deportable .undér the anarch-

ist deportation act, as amended (including aliens who

ever were members of the Communist Party), were dis-.

qualified from receiving suspension of .deportation.

This disqualification appears in the statutory text as

an exception to the general operation of the suspension

statute. Hence, under standard principles of construe-

tion, the burden of proving the disqualification.is on the

party claiming that the exception applies. Schlemmer

v. Buffalo, Rod P. R. Coy, 205 U.S. 1,10: Javierre v.

Central Altagracia, 217 US. 502, 508. This principle

_is fortified. in its present application bécause placing

oo

the burden on, the alien would require him to prove

a negative. Even more important, the statutory schenie.

shows a clear demarcation between what the alien

must prove—these appearing-in the text as precondi-

tions to eligibility—and the disqialifying factor of

coverage by the anarchist deportation. act. ~Accord-.

ingly, the court below was mistaken in its uneritic: il

assumption that petitioner had the burden of proving

that he was net deportable under the anarchist depor-

tation act. s ,

In the present case, thereis not the slightest evidence

that petitioner everswas aemember of the Communist

Party or was within any other category proscribed by

the anarchist deportation act. No suggestion to that

éffect appears eventhough he was investigated by the

FE, B.. 1. and the Immigration Service. The questions.

were asked of him not out of sass but as a hap-

“ petistanee ina random i inquir ‘vy. And, as we have seen,

petitioners assertion of the privilege has no. eviden-

tiary signific ance.” Accordingly. the Service’s burden

4

of proy ing that petitioner was disqualified by reason of,

being under the anarchist deportation net was not

carried, : ; ee

$. Petitioner's Refusal to Assist the Immigration Service in

Determining Whether He Was Under the Anarchist De-

portation Act Was Not a Valid Ground for Holding That

He Was Ineligible for Suspension ;

The Board of Immigration Appeals did. not rely on.

the ground, advanced by the Special Inquiry Officer —

and approved by the Distriet Court and the court be-

low, that petitioner had by asserting the privilege failed

- to prove good moral character. “Its reasoning was as

follows (R. 77-78): .

The right of a de ‘fendant against sel f-inerimination

in a ‘criminal prosecution is not the same as the

right of this Board to know all pertinent informa-

tion about an applicant for-suspension of deporta-_

tion. This is not a criminal] prosecution. Respond-

ent is asking a special favor and must be willing

to permit a thorough examination.of his eligibility

of that favor. Membership in the Communist

Party, present or past, is most pe A tg to an

application for suspension, because under Section:

19(d) of the 1917 Act and tinder Section 2 29 of the

Internal See ‘urity Act, amending the Aet of 1918, |

Communist Party membe ship precludes a grant:

of suspension or of any relief, ne luding mentary

departure.

aad

, As we reafl this passage, its. theory is.that petitioner,

‘is ineligible: beeauke he failed to discharge a duty ‘to

permit a thorough,examination of his eligibility.” This

scoms a differenggoncept than the erroneous view of the

court below, which we ,have just examined, that peti-

tioner had the burden of proving that he. was not a

member of the Communist Party.

15

i

The error of the Board's holding is that it imports

into the statute a requirement that is not there. The

statute provides the terms of eligibility, none of which

is that the alien cooperate with the Service in its in-

vestigation of him-to determine-whether he is disquali- ’

fied by reason of Communist Party membership. It

does not follow, as the Board supposed, that because the”

Service and the Board-have a “right ..... to -know all

pertinent information,’ the alien has’a duty to supply

such Information, regarding a subject on which the

burden of proof is on the Service. On the contrary,

even if a general obligation to cooperate were read into -

the statute, this would be. overridden by the Fifth

Amendment. which, when claimed, gives a- privilege of

silence. — :

The choice is between giving respect to the constitu-

‘tional privilege or extending the statutory language in

order to bolster the legislative policy of the anarchist

deportation act, as amended? On the one hand, **The

value of constitutional privileges is largely destroyed

if persons. ean he penalized for ey on them.**

Grunewald vo United States, supra, at 425-26 (con-

eurving opinion). On the other, if the choice is for the

privilege, suspension may, ‘on rare .oeeasions and: do-

spite the investigatory resources of the government, be.

granted to persons who might ac ‘tually be disqualified.

The Foimders, however, enshrined the privilege even.

sat the cost of permitting serious crimes to go unpun-

ished. Surely, then, the policy of the privilege deserves

greater: deference than that behind the dubious provi-

sions for the expulsion of alien Comnmmnists.’ > More-

ioe “a Galvan v. Press. 347 VR. 228. 50. ae Court though sus-

taining deportation. for Communist Party membership, stated that.

the enactment “strikes one with a sense of harsh incongruity.’

=f 16 oh

over, Lt is precisely at such times—when the privilege —

is under attack. by those who wrongly conceive of itas |

merely a shield for the guilty—that governmental bod- |

ies must be most scrupulous in protecting its exercise.’

Quinn v. United States, 349 US. +155, 164.

‘The Court has held that a city may discharge an em-

ployee for refusing on constitutional grounds to an-

sWer questions on Communist membership asked, .or-

directed to be answered, by the city. Lerner’y. Casey,,

357. U.S. 468; Beilan v. Board of Education, 357 U.S S.

399; Nelson v. Los Angeles, No, 152, Oct. Term, 1959,

decided Feb. 29, 1960. These cases. go no further than,

sustaining state power to discharge an employee for

non-cooperation claimed to evince .a lack of candor or

insubordination. The initial question here, however, is

what Congress did, not what it could have done. It

prescribed only certain factors w shich would disqualify ,

an alien for suspension. It did not -prescribe non-

cooperation with the Immigration Service as a disquali-

fication. And, in the interests‘ of the constitutional

privilege, no ‘such requirément should be erected by

inter pretation:

Nor does the Congress have the power to*do what

Levies, Beilan and Nelson permitted the states to do.

Those cases do not directly collide with the privilege

against self-incrimination ‘because the Court has held

that the privile ge is not binding on the states. But it

flies in the face of the Fifth Ame ndment for the fed-

eral governme nt to inflict adverse, discriminatory con--

sequences on account of a privileged silence, © For suc ‘h

action isa compulsion on the alien to ine ‘riminate him-

self.

=~

v

SP at emer

NL PETITIONER'S CLAIM OF THE PRIVILEGE WOULD NOT BE

A VALID GROUND FOR REFUSING SUSPENSION IN THE .

SxEnCwe OF THE ATTORNEY GENERAL'S DISCRETION.

If an alien satisfies the statutory preconditions and |

is not disqualified by reason of the anarchist deporta-

tion act, the Attorney General has discretion as. to

whether to grant’suspension. .His exervise of this au- -

‘thority istrey iewable for abuse-of discretion. United

‘States ex rel. Hintopoulos v v. Shaughnessy, 353 US272,

17-78; Caddeo V. McGranery, 202 F. 2d 807; Melach-

_rinos v. Brownell, 230 F.2d 42, 45: Mastrapasqua vy.

Shaughnessy, 180 F. 2d 909, 1002: United States er rel,

Partheniades v, Shaughne ssy, 146 BF. Supp. 772.

The Special, beanies Officer and the Board of [mmi-

gration Appeals did not exercise the discretion com-

mitted to the Attorney General hee ‘ause they held peti-

tioner ineligible for dise ‘retionary “consideration. The

court below took a like view. The Adjudications Divi-

sion of the Service, however, approved the recommen-

dations of the Special Inquiry Officer on the ground

that suspension should be denied as **a matter of ad-

ministrative discretion’? beeause ‘Of petitioner's re-

hance on his constitutional privilege (R. 74).

Since this ruling was made only in an intermediate

administrative appeal, we doubt that this case presents

in the present postire the question ef whether the At-

torney General's discretion Was abused: The fact. is

that discretion was not exercised by the Attorney Gen-

eral’s last delegate, the Board of Dnmigration Appe als.,

But if the question of diseretion is here, then it Was °

unconstitutional, and at a minimum an abuse of disere-

tion, to deny discretionary relief ‘solely heeause peti-

tioner had relied on his constitutional privilege. Since

administrative officials also operate, under the Censti-

*

> i

18

tution, they are no freer than the courts to ‘denigraty

the constitutional policy by penalizing on discrediting

‘an alien for exercising his constitutional right. An

alien’s non-cooperation may be a valid ground for .

denving him discretionary relief, but not when the non--

‘cooperation is the exercise of a constitutionally guaran- .

teed privilege.

In conformity with this principle, United States ex

2 ‘rel. Belfrage v. Shaughnessy, 212 F. 2d 128, held that. -

an administrative denial of bail pending deportation

proceedings Was an abuse of discretion because based

in part on the alien's claini of the privilege. Similarly,

the amount of judicial bail may not be-affeeted by a

defendant's reliance on the privilege. Speétor v.

United States, 193 F. 2d 1002, 1005-1006.:

CONCLUSION |

~The judgment below should be reversed.

Respectfully submitted,

JOBsEPH FoRER-

Davip REIN .

—-711.14th St. No Wa.

Washington, D. C. a

~ WIiiam M. SaMvets

2334 Brooklyn Ave.,

Los Angeles, California

Attorneys for Petitioner

ree?