# Jay v. Boyd/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Warren Black Frankfurter Douglas
United States Supreme Court
351 U.S. 345
Cecil Reginald Jay, v. John P. Boyd.
No. 503. Argued: May 3, 1956. --- Decided: June 11, 1956.
Petitioner brought this habeas corpus proceeding to test the validity of the denial of his application under §§ 244(a)(5) and 244(c) of the Immigration and Nationality Act of 1952, 66 Stat. 215, 216, 8 U.S.C. §§ 1254(a)(5) and 1254(c), 8 U.S.C.A. § 1254(a)(5), (c), for discretionary suspension of deportation. He contends that the denial of his application was unlawful because based on confidential, undisclosed information. The District Court denied the writ, holding, so far as pertinent here, that, 'after complying with all the essentials of due process of law in the deportation hearing and in the hearing to determine eligibility for suspension of deportation, (the Attorney General may) consider confidential information outside the record in formulating his discretionary decision.' The Court of Appeals affirmed, concluding, inter alia, that petitioner was not 'denied due process of law in the consideration of his application for suspension of deportation because of the use of this confidential information.' 222 F.2d 820, 820-821, rehearing denied 224 F.2d 957. We granted certiorari, 350 U.S. 931, 76 S.Ct. 303, to consider the validity of 8 CFR, Rev.1952, § 244.3, the Attorney General's regulation which provides:
's 244.3 Use of confidential information. In the case of an alien qualified for * * * suspension of deportation under section * * * 244 of the Immigration and Nationality Act the determination as to whether the application for * * * suspension of deportation shall be granted or denied (whether such determination is made initially or on appeal) may be predicated upon confidential information without the disclosure thereof to the applicant, if in the opinion of the officer or the Board making the determination the disclosure of such information would be prejudicial to the public interest, safety, or security.'
Following a hearing, the fairness of which is unchallenged, petitioner was ordered deported in 1952 pursuant to 8 U.S.C. (1946 ed., Supp. V) § 137-3. That section provided for the deportation of any alien 'who was at the time of entering the United States, or has been at any time thereafter,' a member of the Communist Party of the United States. Petitioner, a citizen of Great Britain, last entered the United States in 1921. At the deportation hearing he admitted having been a voluntary member of the Communist Party from 1935 through 1940. He attacked the validity of the deportation order in the courts below on the ground that there is 'no lawful power * * * under the Constitution ow laws of the United States' to deport one who has 'at no time violated any condition imposed at the time of his entry.' But that point has been abandoned, and in this Court petitioner in effect concedes that he is deportable. See Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586.
In 1953, upon motion of petitioner, the deportation order was withdrawn for the purpose of allowing petitioner to seek discretionary relief from the Attorney General under § 244(a)(5) of the Act. The application for suspension of deportation was filed and a hearing thereon was held before a special inquiry officer of the Immigration and Naturalization Service. The special inquiry officer found petitioner to be qualified for suspension of deportation-that is, found that petitioner met the statutory prerequisites to the favorable exercise of the discretionary relief. But the special inquiry officer decided the case for suspension did not 'warrant favorable action' in view of certain 'confidential information.' The Board of Immigration Appeals dismissed an appeal, basing its decision 'Upon a full consideration of the evidence of record and in light of the confidential information available.' Thus, the Board in considering the appeal reviewed the undisclosed information as well as the evidence on the open record. Petitioner then commenced the present habeas corpus action.
As previously noted, § 244(a)(5) of the Act provides that the Attorney General 'may in his discretion' suspend deportation of any deportable alien who meets certain statutory requirements relating to moral character, hardshop and period of residence within the United States. If the Attorney General does suspend deportation under that provision, he must file, pursuant to § 244(c), 'a complete and detailed statement of the facts and pertinent provisions of law in the 'case with Congress, giving 'the reasons for such suspension.' So far as pertinent here, deportation finally cancels only if Congress affirmatively approves the suspension by a favorable concurrent resolution within a specified period of time. There is no express statutory grant of any right to a hearing on an application to the Attorney General for discretionary suspension of deportation. For purposes of effectuating these statutory provisions, the Attorney General adopted regulations delegating his authority under § 244 of the Act to special inquiry officers; giving the alien the right to apply to suspension during a deportation hearing; putting the burden on the applicant to establish the statutory requirements for eligibility for suspension; allowing the alien-applicant to submit any evidence in support of his application; requiring the special inquiry officer to present evidence bearing on the applicant's eligibility for relief; and requiring a 'written decision' with 'a discussion of the evidence relating to the alien's eligibility for such relief and the reasons for granting or denying such application.' The Attorney General also promulgated the regulation under attack here, 8 CFR, Rev.1952, § 244.3, see p. 2, supra, providing for the use by special inquiry officers and the Board of Immigration Appeals of confidential information in ruling upon suspension applications if disclosure of the information would be prejudicial to the public interest, safety or security.
We note that petitioner does not suggest that he did not receive a full and fair hearing on evidence of record with respect to his statutory eligibility for suspension of deportation. In fact, petitioner recognizes that the special inquiry officer found in his favor on all issues relating to eligibility for the discretionary relief and that those findings were adopted by the Board of Immigration Appeals. This favorably disposed of petitioner's eligibility for consideration for suspension of deportation-the first step in the suspension procedure. Thus, we have here the case of an admittedly deportable alien who has been ordered deported following an unchallenged hearing, and who has been accorded another full and fair hearing on the issues respecting his statutory qualifications for discretionary suspension of deportation.
It is urged upon the Court that the confidential information regulation is invalid because inconsistent with § 244 of the Act. In support of this claim, petitioner argues that § 244 implicitly requires the Attorney General to give a hearing on applications for suspension of deportation. It is then said that this statutory right is nullified and rendered illusory by the challenged regulation, and that therefore the regulation is invalid. But there is nothing in the language of § 244 of the Act upon which to base a belief that the Attorney General is required to give a hearing with all the evidence spread upon an open record with respect to the considerations which may bear upon his grant or denial of an application for suspension to an alien eligible for that relief. Assuming that the statute implicitly requires a hearing on an open record as to the specified statutory prerequisites to favorable action, there is no claim here of a denial of such a hearing on those issues. Moreover, though we assume a statutory right to a full hearing on those issues, it does not follow that such a right exists on the ultimate decision-the exercise of discretion to suspend deportation.
Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility. However, Congress did not provide statutory standards for determining who, among qualified applicants for suspension, should receive the ultimate relief. That determination is left to the sound discretion of the Attorney General. The statute says that, as to qualified deportable aliens, the Attorney General 'may, in his discretion' suspend deportation. It does not restrict the considerations which may be relied upon or the procedure by which the discretion should be exercised. Although such aliens have been given a right to a discretionary determination on an application for suspension, cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace. Like probation or suspension of criminal sentence, it 'comes as an act of grace', Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566, and 'cannot be demanded as a right', Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204. And this unfettered discretion of the Attorney General with respect to suspension of deportation is analogous to the Board of Parole's powers to release federal prisoners on parole. Even if we assume that Congress has given to qualified applicants for suspension of deportation a right to offer evidence to the Attorney General in support of their applications, the similarity between the discretionary powers vested in the Attorney General by § 244(a) of the Act on the one hand, and judicial probation power and executive parole power on the other hand, leads to a conclusion that § 244 gives no right to the kind of a hearing on a suspension application which contemplates full disclosure of the considerations entering into a decision. Clearly there is no statutory right to that kind of a hearing on a request for a grant of probation after criminal conviction in the federal courts. Nor is there such a right with respect to an application for parole. Since, as we hold, he Attorney General's discretion is not limited by the suggested hearing requirement, the challenged regulation cannot be said to be inconsistent with § 244(a) of the Act.
Petitioner says that a hearing requirement, with a consequent disclosure of all considerations going into a decision, is made implicit by § 244(c) if not by § 244(a). Section 244(c), it will be recalled, requires the Attorney General to file with Congress 'a complete and detailed statement of the facts' as to cases in which suspension is granted, 'with reasons for such suspension.' This statutory mandate does not, however, order such a report on cases in which suspension is denied. Section 244(c) actually emphasizes the fact that suspension is not a matter of right. Congress was interested in limiting grants of this relief to the minimum. It evidenced an interest only in the reasons relied upon by the Attorney General for granting an application so that it could have an opportunity to accept or reject favorable administrative decisions. This in no way suggests that the applicant is to be apprised of the reasons for a denial of his request for suspension.
Petitioner also points to § 235(c) of the Act, 8 U.S.C. § 1225(c), 8 U.S.C.A. § 1225(c), which specifically authorizes the Attorney General to determine under some circumstances that an alien is excludable 'on the basis of information of a confidential nature.' It is argued from this that had Congress intended to permit the use of confidential information in rulings upon applications for suspension of deportation, it would have expressly so provided in language as specific as that used in § 235(c). The difficulty with this argument is that § 235(c) is an exception to an express statutory mandate under § 236(a) of the Act, 8 U.S.C. § 1226(a), 8 U.S.C.A. § 1226(a), that determinations of admissibility be 'based only on the evidence produced at the inquiry.' No such express mandate exists with respect to suspension of deportation, and, therefore, no specific provision for the use of confidential information was needed if normally contemplated by the broad grant of discretionary power to the Attorney General.
It is next argued that, even if the confidential information regulation is not inconsistent with § 244(a), it nevertheless should be held invalid. Emphasizing that Congress did not in terms authorize such a procedure, petitioner contends that the Act should be construed to provide a right to a hearing because only such a construction would be consistent with the 'tradition and principles of free government.' On its face this is an attractive argument. Petitioner urges that, in view of the severity of the result flowing from a denial of suspension of deportation, we should interpret the statute by resolving all doubts in the applicant's favor. Cf. United States v. Minker, 350 U.S. 179, 187-188, 76 S.Ct. 281, 286, 287. But we must adopt the plain meaning of a statute, however severe the consequences. Cf. Galvan v. Press, 347 U.S. 522, 528, 74 S.Ct. 737, 741, 98 L.Ed. 911. As we have already stated, suspension of deportation is not given to deportable aliens as a right, but by congressional direction, it is dispensed according to the unfettered discretion of the Attorney General. In the face of such a combination of factors we are constrained to construe the statute as permitting decisions based upon matters outside the administrative record, at least when such action would be reasonable.
It may be that § 244(a) cannot be interpreted as allowing a decision based on undisclosed information in every case involving a deportable alien qualified for suspension. Thus, it could be argued that, where there is no compelling reason to refuse to disclose the basis of a denial of an application, the statute does not contemplate arbitrary secrecy. However, the regulation under attack here limits the use of confidential information to instances where, in the opinion of the special inquiry officer or the Board of Immigration Appeals, 'the disclosure * * * would be prejudicial to the public interest, safety, or security.' If the statute permits any withholding of information from the alien, manifestly this is a reasonable class of cases in which to exercise that power.
Our conclusion in this case is strongly supported by prior decisions of this Court. In both United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, and Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, we upheld a regulation of the Attorney General calling for the denial of a hearing in exclusion cases where the Attorney General determined that an alien was excludable on the basis of confidential information, and where, as here, the disclosure of that information would be prejudicial to the public interest. And again, as here, the statutes involved in those cases did not expressly authorize the use of such information in making the administrative ruling. It is true that a resident alien in a deportation proceeding has constitutional protections unavailable to a nonresident alien seeking entry into the United States, and that those protections may militate against construing an ambiguous statute as authorizing the use of confidential information in a deportation proceeding. Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576. But the issue involved here under § 244(a) is not whether an alien is deportable, but whether, as a deportable alien who is qualified for suspension of deportation, he should be granted such suspension. In view of the gratuitous nature of the relief, the use of confidential information in a suspension proceeding is more clearly within statutory authority than were the regulations involved in the Knauff and Mezei cases.
Concluding that the challenged regulation is not inconsistent with the Act, we must look to petitioner's claim that the use of undisclosed confidential information is unlawful because inconsistent with related regulations governing suspension of deportation procedures. As previously noted, an application for suspension is considered as part of the 'hearing' to determine deportability. 8 CFR, Rev.1952, §§ 242.53(c) and 242.54(d); and see 8 CFR, Rev.1952, § 242.5. The alien is entitled to 'submit any evidence in support of his application which he believes should be considered by the special inquiry officer.' 8 CFR, Rev.1952, § 242.54(d). The hearing to determine deportability, during which the suspension application is considered, is to be a 'fair and impartial hearing.' 8 CFR, Rev.1952, § 242.53(b). And a decision of the special inquiry officer on the request for suspension must contain 'the reasons for granting or denying such application.' 8 CFR, Rev.1952, § 242.61(a).
We conclude that, although undisclosed information was used as a basis for denying suspension of deportation, none of the above-mentioned regulations was transgressed. While an applicant for suspension is, by regulation, entitled to 'submit any evidence in support of his application,' that is merely a provision permitting an evidentiary plea to the discretion of those who are to make the decision. In this respect it is not unlike the 'statement' and the opportunity to present 'information in mitigation of punishment' to which a convicted defendant is entitled under Rule 32(a) of the Federal Rules of Criminal Procedure before criminal sentence is imposed. And the situation is not different because the matter of suspension of deportation is taken up in the 'fair and impartial' deportation 'hearing.' Assuming that such a 'hearing' normally precludes the use of undisclosed information, the 'hearing' here involved necessarily contemplates the use of confidential matter in some circumstances. We must read the body of regulations governing suspension procedures so as to give effect, if possible, to all of its provisions. Cf. Lawson v. Suwannee Fruit & S.S Co., 336 U.S. 198, 69 S.Ct. 503, 93 L.Ed. 611.
This same rationale leads us to conclude that the requirement of a decision containing 'reasons' is fully complied with by a statement to the effect that the application has been denied on the basis of confidential information, the disclosure of which would be prejudicial to the public interest, safety or security. Section 244.3 says that such information may be used 'without the disclosure thereof to the applicant.' Reading the provision for a statement of the 'reasons' for a decision in the light of § 244.3, it follows that express reliance on confidential information constitutes a statement of the 'reasons' for a denial of suspension within the meaning of § 242.61(a). If 'reasons' must be disclosed but confidential information need not be, the former mandate, which certainly comprehends the latter provision, must be satisfied by an express invocation of the latter provision.
Congress has provided a general plan dealing with the deportation of those aliens who have not obtained citizenship although admitted to residence. Since it could not readily make exception for cases of unusual hardship or extenuating circumstances, those matters were left to the consideration and discretion of the Attorney General. We hold that in this case the Attorney General has properly exercised his powers under the suspension statute and we affirm the judgment below.
It is so ordered.
Affirmed.
Mr. Chief Justice WARREN, dissenting.

## Notes

* ↑ The District Judge wrote no opinion. The quote is taken from the Findings of Fact and Conclusion of Law, Record 15, 17-18.
* ↑ A similar provision is now contained in 8 U.S.C. § 1251(a)(6)(C), 8 U.S.C.A. § 1251(a)(6)(C).
* ↑ 'In determining cases submitted for hearing, special inquiry officers shall exercise * * * the authority contained in section 244 of the Immigration and Nationality Act to suspend deportation.' 8 CFR, Rev.1952, § 242.6.
* ↑ The finding was:
* ↑ Section 244(a)(5) of the Act provides in pertinent part that 'the Attorney General may in his discretion suspend deportation' in the case of a deportable alien who (1) has been present in the United States for at least ten years since the ground for his deportation arose; (2) 'proves that during all of such period he has been and is a person of good moral character'; and (3) is one 'whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship.'
* ↑ In his petition for a writ of habeas corpus petitioner alleged, 'Upon information and belief,' that the 'confidential information' considered by the special inquiry officer, and later by the Board of Immigration Appeals, was nothing more than the fact that petitioner's name had appeared on a list circulated by the American Committee for the Protection of the Foreign Born, an organization which had been designated subversive by the Attorney General, ex parte. Petitioner claimed that 'Solely by reason of (his) name appearing on said list, his case for discretionary relief was prejudged and no fair or impartial consideration of his case was given * * *.' In its Return to the Order to Show Cause, the Government denied that the confidential information relied upon was as alleged by petitioner, and denied that the case had been prejudged. The District Court made no specific finding with respect to the character or substance of the confidential information, but it did determine that the special inquiry officer and the Board of Immigration Appeals 'exercised their independent judgment in denying discretionary relief.' See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, 349 U.S. 280, 75 S.Ct. 746, 99 L.Ed. 1074; Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757.
* ↑ No further administrative appeal was then available to petitioner. See 8 CFR, Rev.1952, §§ 242.61(e) 6.1(b)(2), 6.1(h)(1).
* ↑ 8 CFR, 1952 ed., § 242.6 quoted in part at note 3, supra. Petitioner does not suggest, nor can we conclude, that Congress expected the Attorney General to exercise his discretion in suspension cases personally. There is no doubt but that the discretion was conferred upon him as an administrator in his capacity as such, and that under his rulemaking authority, as a matter of administrative convenience, he could delegate his authority to special inquiry officers with review by the Board of Immigration Appeals. 66 Stat. 173, 8 U.S.C. § 1103, 8 U.S.C.A. § 1103.
* ↑ 8 CFR, Rev.1952, § 242.54(d).
* ↑ Ibid.
* ↑ Ibid.
* ↑ 8 CFR, Rev.1952, § 242.53(c).
* ↑ 8 CFR, Rev.1952, § 242.61(a).
* ↑ See notes 4 and 5, supra, and accompanying text.
* ↑ Congress first provided for suspension of deportation in 1940 by adding a new provision to the Immigration Act of 1917. 54 Stat. 672, as amended, 62 Stat. 1206, 8 U.S.C. (1946 ed., Supp. V) § 155(c). That new provision provided that 'the Attorney General may * * * suspend deportation' under certain circumstances. In enacting the Immigration and Nationality Act of 1952, Congress added the phrase 'in his discretion' after the words 'the Attorney General may.' In an analysis of draft legislation leading up to the 1952 Act, prepared by the Immigration and Naturalization Service for the assistance of the congressional committees, it was stated that the new words were suggested 'in order to indicate clearly that the grant of suspension is entirely discretionary * * *.' That analysis was considered by the congressional committees. See S.Rep. No. 1137, 82d Cong., 2d Sess., p. 3; H.R.Rep. No. 1365, 82d Cong., 2d Sess., p. 28.
* ↑ As stated by Judge Learned Hand, 'The power of the Attorney General to suspend deportation is a dispensing power, like a judge's power to suspend the execution of a sentence, or the President's to pardon a convict.' United States ex rel. Kaloudis v. Shaughnessy, 2 Cir., 180 F.2d 489, 491. See also S.Rep. No. 1137, 82d Cong., 2d Sess., p. 25, for an indication that suspension of deportation is a matter of grace to cover cases of unusual hardship. And see 81 Cong.Rec. 5546, 5553, 5554, 5561, 5569-5570, and 5572, where early proposed legislation for administrative suspension of deportation was variously described as a procedure for 'clemency' and 'amnesty,' and was compared with presidential discretion. And see S.Rep. No. 1515, 81st Cong., 2d Sess., p. 600, emphasizing that suspension of deportation is an entirely discretionary action which does not follow automatically from compliance with the formal eligibility requirements.
* ↑ '* * * if in the opinion of the Board (of Parole) such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.' (Emphasis supplied.) 18 U.S.C. § 4203, 18 U.S.C.A. § 4203. See United States ex rel. Anderson v. Anderson, 8 Cir., 76 F.2d 375, 376; Losieau v. Hunter, 90 U.S.App.D.C. 85, 193 F.2d 41.
* ↑ A sentencing court 'may suspend * * * sentence and place the defendant on probation' if it is 'satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby.' 18 U.S.C. § 3651, 18 U.S.C.A. § 3651.
* ↑ 'If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.' 18 U.S.C. § 4203(a), 18 U.S.C.A. § 4203(a).
* ↑ See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317, and Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, upholding a regulation of the Attorney General to a similar effect which had been promulgated prior to the existence of § 235(c) or any other such specific statutory authority.
* ↑ It is not claimed that a contrary construction would render the statute and regulation unconstitutional, or even that a substantial constitutional question would thereby arise. The thrust of the argument is rather that the statute should be construed liberally in favor of the alien as a matter of statutory interpretation. In any event, in this case we have not violated our normal rule of statutory interpretation that, where possible, constructions giving rise to doubtful constitutional validity should be voided. That rule does not authorize a departure from clear meaning. E.g., United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297; Hopkins Federal Savings & Loan Ass'n v. Cleary, 296 U.S. 315, 334-335, 56 S.Ct. 235, 239, 240, 80 L.Ed. 51. Moreover, the constitutionality of § 244 as herein interpreted gives us no difficulty. Cf. Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.
* ↑ Petitioner presents the claim that the decision of the special inquiry officer was void in that the 'so-called confidential matter * * * was of such a character that its consideration was not authorized by applicable regulations established by the Attorney General.' See note 6, supra. To the extent that this is an allegation that the undisclosed information, if revealed, would not have been prejudicial to the public interest, petitioner is arguing that the decision violated 8 CFR, Rev.1952, § 244.3. The Board of Immigration Appeals, the District Court, and the Court of Appeals concluded, in effect, that the special inquiry officer found that the disclosure of the information would have been contrary to public interest, safety or security. We accept that finding. Nothing more is required by the regulation.
* ↑ The substance of this regulation is now incorporated in § 235(c) of the Act, 8 U.S.C. § 1225(c), 8 U.S.C.A. § 1225(c). See pp. 10-11, supra.
* ↑ See note 18, supra.
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