# Brief for the Respondent in Opposition — Kimm v. Hoy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1298%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1959 - **Citation:** 361 U.S. 807 ## Text 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 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 * . = . - —————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 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... 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? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1298%3A5. Public record. Not legal advice.