# Marcello v. Bonds/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Douglas
United States Supreme Court
349 U.S. 302
Marcello v. Bonds
Argued: April 21, 1955. --- Decided: May 31, 1955
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER joins, dissenting.
Petitioner was lawfully brought to this country forty-four years ago when he was eight months old and has resided here ever since. He is married and has four children. His wife and children are American citizens. It is settled that he cannot be deported without being accorded a fair hearing in accordance with the Due Process Clause of the Fifth Amendment.
A fair hearing necessarily includes an impartial tribunal. Petitioner claims that the circumstances here deprived him of that kind of tribunal. The officer who conducted the hearings, decided the case and made recommendations for deportation was connected with the Immigration and Naturalization Service. This hearing officer was subject to the supervision, direction and control of the Attorney General and his subordinate supervisory officers of the Immigration Service who perform investigative and prosecutorial functions. Thus the hearing officer adjudicated the very case against petitioner which the hearing officer's superiors initiated and prosecuted. Petitioner's argument is that requiring him to have his cause adjudicated by such a subordinate of the prosecutors deprives him of due process. This due process challenge cannot be lightly dismissed, but I find it unnecessary to rest my dissent on a determination of that question. For Congress in the Administrative Procedure Act has barred hearing officers from adjudicating cases under the circumstances here, and I think that Act is applicable to this case.
Section 5(c) of the Administrative Procedure Act forbids hearing officers covered by the Act to conduct hearings if they are 'responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency.' In 1950 we held in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, that deportation proceedings must be conducted as required by § 5. Congress, however, later in 1950, put a rider on an appropriation bill providing that 'Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act.' Were this express modification of the Procedure Act still in effect, we would have to reach the constitutional question raised by petitioner. But this appropriation rider was repealed in the 1952 Immigration and Nationality Act. The result of this repeal was to leave § 5(c) of the Administrative Procedure Act applicable to immigration cases unless, as the Government contends, other provisions of the 1952 Immigration Act made the Procedure Act inapplicable. I think this contention of the Government should not be sustained.
Section 12 of the Administrative Procedure Act provides that 'No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.' The 1950 appropriation rider was an express modification of the prior Procedure Act, but unlike the Court I find no such express modification in the 1952 Immigration Act. Indeed that Act's legislative sponsors disclaimed any purpose to bring about even an implied modification.
Both the Procedure Act and the 1952 Immigration Act were sponsored by Senator McCarran and Representative Walter. Their original proposals which finally evolved into the 1952 Act did expressly provide that the Procedure Act should not control proceedings under the Immigration Act. The provision was that 'Notwithstanding any other law, including the Act of June 11, 1946 (the Administrative Procedure Act), the proceedings so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien who is in the United States'. Hearings on these proposals brought strong protests from some organizations, including the American Bar Association, against the provision making the Administrative Procedure Act inapplicable to deportation proceedings. Afterwards the sponsors of the immigration measures introduced new bills which significantly omitted from that provision the words 'Notwithstanding any other law, including the Act of June 11, 1946 (the Administrative Procedure Act).' Consequently when the bill finally passed there was no language which 'expressly' superseded or modified the binding requirement of § 5(c) of the Administrative Procedure Act.
Senators who voted for the new version which became the 1952 Immigration Act were assured by the senatorial sponsor:
'The Administrative Procedure Act is made applicable to the bill. The Administrative Procedure Act prevails now. * * * The bill provides for administrative procedures and makes the Administrative Procedure Act applicable insofar as the administration of the bill is concerned.'
And House members voting for the 1952 Immigration Act were assured by its House sponsor:
'Instead of destroying the Administrative Procedures Act, we undo what the Congress did in a deficiency appropriation bill several years ago when it legislated to overturn a decision of the Supreme Court, which ruled that the Administrative Procedures Act is applicable in deportation proceedings. We undo that. So here, instead of our destroying the Administrative Procedures Act, we actually see that it is reinstated in every instance.'
Reassuring the House again the next day, Representative Walter said:
'We have been very zealous to see that the philosophy underlying that act (Administrative Procedure) is embodied in this measure. I am sure that if the gentleman will look at page 163, paragraph 46, he will find that the law as it was before the House adopted this amendment to an appropriation bill, has been reinstated and that the decision of the Supreme Court in the Sung case will be the law of the land when this code is adopted.'
As previously pointed out the Sung case held that § 5(c) of the Administrative Procedure Act did apply to deportation cases.
Other statements in the discussions of the 1952 Act may look in a different direction from the statements just quoted. But whatever was said, no language in the 1952 Immigration Act expressly authorizes deportation cases to be heard, contrary to the Administrative Procedure Act, by hearing officers who are the dependent subordinates of the immigration agency's prosecutorial staff. The idea of letting a prosecutor judge the very case he prosecutes or supervise and control the job of the judge before whom his case is presented is wholly inconsistent with our concepts of justice. It was this principle on which Congress presumably acted in passing the Procedure Act. Only the other day we had pointed out to us an instance in which the immigration authorities had relieved an immigration hearing officer from his duties because they believed that the hearing officer had failed adequately to present available derogatory information against an alien. It is hard to defend the fairness of a practice that subjects judges to the power and control of prosecutors. Human nature has not put an impassable barrier between subjection and subserviency, particularly when job security is at stake. That Congress was aware of this is shown by the Procedure Act, and we should not construe the Immigration Act on a contrary assumption.
I would reverse this case.

## Notes

* ↑ Japanese Immigrant Case, Yamataya v. Fisher, 189 U.S. 86, 100-101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Wong Yang Sung v. McGrath, 339 U.S. 33, 49-51, 70 S.Ct. 445, 453-454, 94 L.Ed. 616.
* ↑ 60 Stat. 237, 5 U.S.C. §§ 1001-1011, 5 U.S.C.A. §§ 1001 1011.
* ↑ 64 Stat. 1048, 8 U.S.C. (1046 ed.) § 155a.
* ↑ 66 Stat. 166, 8 U.S.C. § 1101 et seq., 8 U.S.C.A. § 1101 et seq.
* ↑ Emphasis supplied.
* ↑ Joint hearings before the Subcommittees of the Committees on the Judiciary S. 716, H.R. 2379, H.R. 2816, 82d Cong., 1st Sess. 526-537, 591, 691-692, 739.
* ↑ 98 Cong.Rec. 5778, 5779.
* ↑ 98 Cong.Rec. 4302.
* ↑ 98 Cong.Rec. 4416.
* ↑ Shaughnessy v. U.S. ex rel. Accardi, 349 U.S. 284, 75 S.Ct. 748 (dissenting opinion).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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