Earl Warren: Number 40, Elizabeth Rosalia Woodby, petitioner versus Immigration and Naturalization Service. Mr. Gordon.
Charles Gordon: May it please the Court. I request the permission of the Court for Mr. Francis X. Beytagh, Jr. of the Ohio Bar who is an assistant to the Solicitor General to argue this case in behalf of the respondent.
Earl Warren: The motion is granted. Mr. Myers.
Jacob A. Myers: Mr Chief Justice and may it please the Court. The petitioner in this case is a 34-year-old female who married an American soldier while he was stationed in Germany in 1956. They had one child while they were living together in Germany. The petitioner's husband in return from Germany to Harlan County, Kentucky which was his parents home and left the petitioner and their infant child in Germany for a period of approximately a year-and-a-half. After that time, the petitioner and the child came over to the United States and they moved to Harlan, Kentucky with her husband. They resided there for approximately six months and then move to Dayton, Ohio. About four months after that, which was sometime in August of 1956, they had a second child that was born approximately four months premature. About four months after that which would be somewhere around December, the petitioner got into an argument with her husband, he took her and put her on a bus and shipped her off to Pennsylvania. She turned around as soon as she got there after borrowing money from a friend to get back, arrived in Dayton, Ohio and found that her husband had taken their two children and moved back to the family homestead in Kentucky. She was without funds. She couldn't speak English at the time and then she went to work 5&10 Cent store. After that, she worked in a 5&10 Cent store for approximately three months and then she went to work as a waitress in a restaurant. Soon after she went to work, she received a telephone call from her husband who is in Kentucky, stating that their son who at that time was about four months old -- no, it would have been about seven months old was in dire need of a brain operation. She was told by her husband that the child could not have the operation unless he had $300.00 that he had no Blue Cross and the hospital refused to operate on the child unless she had the money. She told her husband that she had no way of getting the money and he told her, “If you're a mother enough, you'll know how to get it.” At this time, the petitioner testified that she was told and she did believe that if she did not get the money, the child would die as a result of this because she could -- because the child would not have an operation. The next day, a vacuum cleaner salesman came to the door to sell her a vacuum cleaner, she said, I'm sorry I can't afford a vacuum and told her, she told him the sad story. He said, well, I know how I can get you the money. He left and came back some time later with another man and a bottle of liquor, they took some pictures of her and apparently, men started coming to her apartment the next day. The petitioner testified that she continued to engage from that point for approximately two months in acts of prostitution until she had repaid the $300.00 that she got from this vacuum cleaner salesman by the name of Tom Wally. After that, she tried terminating the arrangement with him when she repaid him. He threatened to turn it over to the police and the immigration authorities even in view of that, she left Dayton approximately two weeks later and went to Knoxville, Tennessee. This two-month period of time as far as we can determine is approximately from April 1 until June 1 of 1957. She then went approximately June 1, 1957 to Knoxville, Tennessee and remained there until the 4th of July of 1957. On the 4th of July, a friend of the petitioners drove down from Dayton, Ohio, picked the petitioner up and brought her back and the petitioner resided with this lady from the 4th of July of ‘57 until September of ‘57 in one place and then they move above the place where the petitioner was working in September ‘57. In October of 1957, a Mr. Emercon was eating dinner in the restaurant where the petitioner was working and Mr. Emercon was told by his dinner companion not in the presence of the petitioner that the petitioner was quote “in the business”. This is in October of 1957. Mr. Emercon then met the petitioner that evening. He went to the petitioner's apartment, they talked at great length. She told him this whole story. He explained to her what she had been doing and everything about it.
Potter Stewart: He explained to her what she had been doing?
Jacob A. Myers: Well, she at this time in the record I think will bear this out, Your Honor that she did not recognize what she had been doing as prostitution. I don't know what she did recognize it as but she did not recognize it as prostitution.
Potter Stewart: Well, how did he know all about it in order to explain it to her?
Jacob A. Myers: Well --
Potter Stewart: He just met her.
Jacob A. Myers: He just met her and she explained the story about the child needing the operation and entering the disarrangement with Mr. Wally paying him back the $300.00 and terminating the arrangement and then he told her, I imagine what the consequences of it could be.
Earl Warren: Is this friend who brought her back to Ohio a man or a woman -- the one she was living with?
Jacob A. Myers: A woman, a Mrs. Jackson.
Earl Warren: I see.
Jacob A. Myers: She is a witness and her testimony appears in the record, Your Honor. Mr. Emercon also testified at the hearing that he dated her, went with the petitioner for some time, was engaged to her and was willing to marry her. They subsequently did no get married because Mr. Emercon at this time had been in the middle of a divorce proceeding for three years. I think it went on for several years after that. The petitioner's husband was killed in an automobile accident on July 14th, 1957 which was some six months after this occurrence. The petitioner's children are presently in the custody of the grandparents in Harlan County, Kentucky and it was until December of 1965 that we were able to get visitation rights for the petitioner with the children. She is presently working as a hostess in Cincinnati. The questions -- there are two questions basically that are raised in this. The first question is, were the decisions of the Board of Immigration Appeals and the special inquiry officer, supported by a reasonable, substantial and probative of evidence similar to the Sherman case and parenthetically, what do reasonable substantial and probative mean? The second question that is raised is did the United States Court of Appeals for the Sixth Circuit abused its discretion or commit error by not returning the case to the Immigration and Naturalization Service to adduce additional evidence as requested.
Speaker: And do you have a third question? Isn't there a question as to whether the Court of Appeals have jurisdiction to hear this appeal that is timely?
Jacob A. Myers: I believe in the Government's brief, Your Honor, they have conceded that it is timely.
Speaker: Have they?
Jacob A. Myers: Yes, in a footnote citing -- I don't -- I don't. It's footnote 3 on page 8. The Government's brief, they have conceded that there was a timely appeal to the Court of Appeals so that question is not raised in this hearing. The statutes involve the Section 242(b) of the Immigration and Nationality Act which provides that no decision of the portability shall be valid unless it is based upon reasonable, substantial and probative evidence and then also Section 106(a)(4) of the Immigration and Nationality Act which provides that the petition shall be determined solely upon the administrative record upon which the deportation order is based and the attorney general's finding of facts if supported by a reasonable, substantial and probative evidence. It will be necessary in this case to not only discuss our brief and the Government's brief in this case but also the Government's brief as filed in the Sherman case because the Government in this -- in the Woodby case has incorporated by reference the entire brief that they filed in the Sherman case. In order to have a proper prospective of this case, it's necessary to divide the periods of time into two separate parts. The first period of time commences approximately April 1, 1957 and terminates approximately June 1, 1957. It was during this period of time that the petitioner admits having engaged in the acts of prostitution. Now, the second period of time begins at the end of the first period of time which is June 1, 1957 and continues until some time in 1958. Now, it's during the second period of time that the Government found that the petitioner did in fact engaged in prostitution where the petitioner denied these facts. Now, as far as the first period of time is concerned, the Board of Immigration Appeals stated that even if accepting duress as a defense, we find that the petitioner did engage in acts of prostitution after June 1, 1957 so we're concerned in this case with the second period of time with one, did she in fact engaged in acts of prostitution after June 1, 1957? What evidence was there to show that she did? And number two, what standards were used by the Court to determine? Now --
Earl Warren: Is there a session if she just engaged in prostitution after June 1st that she would not be deported under the circumstances of the case?
Jacob A. Myers: From my reading of the decisions, I would say -- excuse me. From my reading of the opinion of the special inquiry officer and also of the Board of Immigration Appeals, I would say yes that she was not be a subject to deportation if she did not engaged in any acts of prostitution after June 1, 1957. There is no question --
Abe Fortas: Why is that Mr. Myers?
Jacob A. Myers: Well, it seems to me from reading the opinion of the Board of Immigration Appeals that there is a concession in their decision that there wasn't duress during this first period of time. They do not find that there is not an arrest, Your Honor. There is no question that there are discrepancies in the testimony. The petitioner has related the termination of acts of prostitution to the repayment of the $300.00. The hearing before the special inquiry officer, took place early in 1962 where these acts of prostitution took place early in 1957. This is approximately five years later and if you read the decision of the special inquiry officer, it's almost nit picking as to dates and not an nit picking as to times and places. There were certain--
Earl Warren: What is the latest date you say that she --
Jacob A. Myers: That she admits?
Earl Warren: -- attempted to approve that she had engaged in these acts.
Jacob A. Myers: Well, they say up until early 1958.
Earl Warren: Early 1958.
Jacob A. Myers: The only evidence of prostitution in this entire case came from admissions by the petitioner. There were no witnesses brought by the Government who proved any acts of prostitution. The petitioner admitted engaging in acts of prostitution. She first gave a statement and in that statement, the first part of the statement that she gave, she first denied it and then she said, I have to tell the truth and she told the truth as to one engaging in acts of prostitution and why she did engage in acts of prostitution. Now, Mr. Emercon also came in as a witness for the Government and the decision of the special inquiry officer said that the petitioner was engaged in acts of prostitution at least until she met Mr. Emercon because he met her in October of 1957 and Mr. Emercon was told by a dinner companion that the petitioner was in the business. Now, the petitioner wasn't there and this type of evidence is considered hearsay evidence at best that couldn't have been any rebuttal of it and then Mr. Emercon found out that the petitioner was not engaged in acts of prostitution. Now, based upon this fact, they said that the petitioner was engaged in acts of prostitution until this date, October ‘57 and the special inquiry officer on page 78 of the record found that Mr. Emercon was wrong. It wasn't October ‘57 it had to be October ‘58. Now, Mr. Emercon testified it was October ‘57 but the special inquiry officer said, no, it was October ‘58 and again, we find out how he determined that it was October ‘58, it was by the one statement that the petitioner stated that she lived in a Summit Court apartment for approximately a year-and-a-half and this is on page 78 of the record and then they refer to Exhibit 2, pages 3 and 4 which is page 12 of the record. If we look back to page 12 of the record to determine what the year-and-a-half was, the question was this, do you recall the address on Summit Street. Answer - Salerno Street. Question - How long did you reside there? Answer - one-and-a-half years. Now, I've read this record possibly 30 or 40 times and I can't figure out with her the answer one-and-a-half year whether that means that she resided on Salerno Street for one-and-a-half year or on Summit Street for one-and-a-half years and it doesn't say when it commenced or when it seized yet based upon this answer, where the woman who could barely speak English, the special inquiry officer found that the petitioner engaged in acts of prostitution until some time in 1958.
Earl Warren: Was she working at some other job --
Jacob A. Myers: Yes.
Earl Warren: -- in October ‘57?
Jacob A. Myers: Yes. She was working as a waitress in the restaurant and the -- Mr. Emercon came into the restaurant where she was working. She was then living above the restaurant in an apartment with his friend.
Earl Warren: Is she working all the time as a waitress between April and June (Voice Overlap).
Jacob A. Myers: Yes sir. Now, the question then that comes up in this case is what standard are we using? What do reasonable, substantial and probative mean? As far as this Court is concerned in the Gastellum case at 374 U.S., this Court held that substantial was more than by a preponderance of the evidence. In Rowoldt versus Perfetto at 355 U.S., this Court held that a solidity of proof is required in a judgment entailing the consequences of deportation. In denaturalization cases the statute requires clear, unequivocal and convincing evidence. In a criminal case, it's evidence beyond unreasonable doubt. Now, the question arises, does this Court have the right to establish a higher standard of proof than a -- why a preponderance of the evidence.
Hugo L. Black: What did you say it is in denaturalization issue?
Jacob A. Myers: Clear, unequivocal and convincing which is the equitable standard of the project.
Hugo L. Black: Do you consider that a heavier burden and a substantial evidence?
Jacob A. Myers: Yes, there are three -- I would say there are three -- yes. There are three burdens, preponderance of the evidence is the least burden, the middle burden which is the fraud type of burden is by a preponderance of the -- excuse me. The clear and convincing evidence and then the heaviest burden is beyond a reasonable doubt of the criminal burden.
Byron R. White: Where does the statutory standard could have?
Jacob A. Myers: Well, if I may. I'm just coming to that. Section 8 U.S.C 1105(a)(4) provides that the finding of deportability shall be based upon reasonable, substantial and probative evidence on the record considered as a whole. Now, the Government contends that this section therefore prohibits the use of either of the other two standards which would be beyond the reasonable doubt or by clear and convincing evidence. They say that this statute sets the standard as reasonable, substantial and probative. Now, reasonable, substantial and probative, this phrase refers to the quality of the evidence and not to a burden of proof. The statute is silent as to who has the burden of proof in a deportation case and this is submitted in the Government's brief in the Sherman case. They have held that there is no place in the deportation code is stated, who was the burden of proof. They concede that the statute is silent as to who has the burden of proof. If it is conceded that the statute is silent as to who has the burden of proof, the statute is also silent as to what the burden of proof is. That is either clear and convincing or proof beyond a reasonable doubt. It is always been a function of this Court to determine what a burden or what burden or degree of persuasion is to be required in a particular case and this degree or burden of persuasion would depend upon the type of case that you're dealing with. That is whether it be a criminal case, whether it be a type of a deportation case and what effect it would have upon the person and what the causes of deportation are.
Hugo L. Black: Do you say it's always been held in this Court?
Jacob A. Myers: Excuse me. I'm --
Hugo L. Black: You say it's always been held as the duty of this Court.
Jacob A. Myers: I'm sorry. I meant “a court” and not necessarily this Court. This is always been a judicial function to establish what --
Hugo L. Black: Rather than a legislative?
Jacob A. Myers: It's possible that it could be a legislative function but in this instance, the legislation --
Hugo L. Black: It's more than possible, isn't it? It could be done by the legislature.
Jacob A. Myers: It could be, yes sir.
Hugo L. Black: If what you're arguing in the sense of legislature has not -- said to us to use the language?
Jacob A. Myers: Yes sir. Since reasonable, substantial and probative referred to the quality of the evidence produced, this phrase is obviously intended to refer to the standard to be used on review to determine if the special inquiry officer used the correct burden of persuasion and that is beyond the reasonable doubt or clear and convincing evidence.
Byron R. White: Or preponderance.
Jacob A. Myers: -- or by a preponderance.
Hugo L. Black: Do those mean -- is there any real difference between them, except words?
Jacob A. Myers: I feel there's a great deal of difference. If you're using the standard by a preponderance of the evidence, this would mean that there is just a little more weight of evidence on one side than on the other. We have the other end of the spectrum if it's beyond the reasonable doubt, this means almost certainly true.
Hugo L. Black: If you're getting support from that tradition of idea that the burden of proof in criminal case is much evident in a similar --
Jacob A. Myers: Yes sir.
Hugo L. Black: And what you're saying is that by reason of consequences here that you should establish a heavier burden.
Jacob A. Myers: I'm saying that there are more reasons than that. I'm saying that this is one of the reasons.
Hugo L. Black: What are the others?
Jacob A. Myers: The other reasons would be, one, you're dealing with a -- let's say we've got the first one which is the consequence, the deportation. The second one is the reason for deportation by finding, it would be necessary for this Court to make a finding that this woman is a prostitute. Now, if the woman is a prostitute, this is the same as making a criminal finding even though we're not saying that she is a criminal, we're saying you're a prostitute and therefore we're going to deport you. We're going to take you away from your children. We're going to send you back to a country where you haven't been for 12 years. Now, in the -- it's very interesting to note that in the Sherman case, the Government has argued that the criminal burden should not be used in that case because there is no criminal stigma involved. Well, in this case, there is a criminal stigma involved.
Hugo L. Black: Is it your idea that it would be a heavier in this case than in the Sherman case?
Jacob A. Myers: I think each case has reasons for requiring the heavier burden, Your Honor.
Hugo L. Black: It would be a pretty uncertain rule wouldn't it to establish? If one percent that based on the fact that under the circumstances of each particular case, you decide -- decides there what should be the burden of proof.
Jacob A. Myers: I think we have a pretty uncertain rule now. I think we're sitting with a Board -- the Board of Immigration Service where they have the special inquiry officer that works for the Immigration and Naturalization Service, the hearing officer the inquiry officer and the person who takes down the testimony. So since everybody works for the same board then they wouldn't bring the action unless they wanted to get rid of the person to begin with. It seems to me that we need some protection or the alien need some protection.
Hugo L. Black: Wouldn't it be a more solid foundation to get it on in some kind of basis as to type of case it is rather than the infinite shading between the cases?
Jacob A. Myers: Well, I think it would be awfully difficult in this area to try to establish that. You would have -- there would probably no two cases that ever arise that are alike.For instance, in this case --
Hugo L. Black: What about the idea that this is a deportation, put the person out of defense who's been living here? Isn't that a pretty good briefing to have the person who came here?
Jacob A. Myers: I feel it is. I feel in addition to that, we have several things. We have in addition to the deportation, you got a woman who has two children here. You've got a woman who -- you're going to say, well, you're a prostitute.
Hugo L. Black: Are you going to draw a difference between a person who is to be deported who's been living here for 40 years and the one who's only been living here for three years because one is a woman and she was a prostitute, you don't have a different burden of proof?
Jacob A. Myers: No, I'm saying that --
Hugo L. Black: You have no general burden.
Jacob A. Myers: No, I'm saying that the burden should be the same in these two cases.
Earl Warren: What should it be?
Jacob A. Myers: I feel that it should be the criminal burden of beyond a reasonable doubt because of several things as I started to say one the stigma of the criminal act. There is no difference between this Court saying that petitioner, you are guilty of acts of prostitution and therefore, you're going to be deported or a criminal court saying, petitioner, you're guilty of acts of prostitution and therefore we're going to find you $100.00 and suspend it.
Abe Fortas: Is there any attempt here to get discretionary relief?
Jacob A. Myers: There is no discretionary relief that we can find that is available. The statute and this is set forth in the Government's brief that she hasn't asked for discretionary relief. Well, if you read the statute, a person must in order to have -- to be able to obtain discretionary relief, be able to be submitted into the United States and if she is convicted of this Act of being a prostitute or found to as guilty of acts of prostitution after that duress had ended then she is not subject to admission into the United States.
Abe Fortas: It has to be admissible as you read it as of the time.
Jacob A. Myers: Yes.
Abe Fortas: As of what time?
Jacob A. Myers: If you read the statute, if a person engages in acts of prostitution when they're 14 years old and if they're 70 years old, they are not admissible and similarly the same is in the Sherman case, there is no statute of limitations on this one act.
Speaker: What do you consider the source of this Court's authority who imposed a standard of evidence different from than that prescribed by Congress?
Jacob A. Myers: My feeling is, from reading the statute and reading the cases that the Congress has not set the standard of proof. They have set the quality of the evidence to be reviewed that this is purely the appellate function when looking at the evidence, was the evidence that was heard by the special inquiry officer, using the proper burden was this supported by reasonable, substantial and probative evidence.
Abe Fortas: You don't think that's the standard.
Jacob A. Myers: No sir. If you want to turn the coin over as the Court did in the Perfetto case and the Rowoldt case or excuse me, the Perfetto case and the Gastelum case. I feel that this Court has gone most of the way by possibly saying that maybe reasonable, substantial and probative mean more than by a preponderance of the evidence without actually going ahead and saying in a deportation case what they really mean. They have stated the solidity of proof is required. The word solidity of proof is not found in any of the text. It's not found in any test that has been used. This is a new concept and if it's a solidity of proof, this is far more than the reasonable, substantial and probative evidence that the Government claims that they have.
Speaker: I suppose then you would have you have an example these days that where would you use the opinion constitute with the stability of proof.
Jacob A. Myers: I believe the denaturalization statute reads differently -- I believe that's -- I have the citation but I believe it is the statutory standard.
Earl Warren: Those three words?
Jacob A. Myers: Pardon.
Earl Warren: Those three words that you used --
Jacob A. Myers: Clear, unequivocal and convincing.
Earl Warren: When were they put in the law?
Jacob A. Myers: I'm sorry. I don't know.
Earl Warren: I think probably you'd find that they were put in an opinion by this Court.
Speaker: What are the standards in Schneiderman case?
Earl Warren: That's the case I was talking --
Jacob A. Myers: The Schneiderman case?
Byron R. White: The Court said that the (Inaudible).
Jacob A. Myers: Yes.
Byron R. White: (Inaudible)
Jacob A. Myers: Well, I don't feel that we can compare the two and to say that one is clear and convincing for a person who is already a citizen that if we're going to try to take their citizenship away from them, it should be clear and convincing comparing that with this case where the person doesn't have their citizenship that it should therefore be a lesser burden. I feel that it has to be looked at individually to determine exactly what protection a person is going to be afforded in every instance.
Earl Warren: But do you think it should take that higher degree evidence to deport a person than to denaturalize it?
Jacob A. Myers: I don't think it should take possibly a higher degree but I feel that it should take at least as higher degree if you're going to ship someone back to another country whether it would be to take them away from their children or after 40 years, they shipped them away from their family. The ultimate effect upon the person is no different whether they're a citizen or not a citizen.
Earl Warren: But -- I can understand that but my only question is, do you contend that this should be a higher degree of proof in naturalization because I understood you concede that the statute in the cases of this Court have a lesser degree on a criminal case than denaturalization cases.
Jacob A. Myers: I have a difficult time equating the two to try to compare one to say one should have a lesser degree or one should have a higher degree because I feel it's necessary to look at the result rather than just the intermediate step that the ties in effect as Mr. Justice Brandies said in an opinion, deportation may result in a lost of all that makes life worth living. It may result in the loss of property in life. And this is in a deportation case in -- with this type of an effect, I feel that it certainly requires a higher burden than has been used in the past.
Hugo L. Black: Your position is as I understand it that it does not see the burden.
Jacob A. Myers: That is correct.
Hugo L. Black: And therefore, it's left open.
Jacob A. Myers: That is correct.
Hugo L. Black: And when the -- as I recall it in the Schneiderman case the burden that was put there was said that could be a heavier burden than have previously existed and that the burden would be half way between perhaps of preponderance and the criminal offense.
Jacob A. Myers: Yes.
Earl Warren: Mr. Beytagh.
Francis X. Beytagh, Jr.: Mr Chief Justice and may it please the Court. In our view, the question presided in this case is simply whether the Service sufficiently proved that the petitioner engaged in prostitution after entry into this country and it is therefore deportable.
Hugo L. Black: Why do you say that that's the only question?
Francis X. Beytagh, Jr.: The statute as we read it authorizes the deportation of aliens who engaged in prostitution after entry.
Hugo L. Black: But that doesn't sound quite from the burden of proof.
Francis X. Beytagh, Jr.: No, Your Honor not at all and I don't mean that opening statement is going to --
Hugo L. Black: That wouldn't have to be considereed.
Francis X. Beytagh, Jr.: Yes sir. We think that certainly were all the question.
Abe Fortas: Well, that standard was applied here at the administrative level as no indication and the opinions that I've read as I recall that anytime they articulated a standard, did they?
Francis X. Beytagh, Jr.: I think it's fair to say that from reading the opinions both of the special inquiry officer and the Board of Immigration Appeals that neither one of them said to themselves before they decided the case or wrote the opinion, what degree of persuasion do I have to have in order to reach the result here. I think it's fair to say that. The other hand, I think that there is evidence in the opinions that they were convinced by a rather high degree that the facts that were found were true --
Abe Fortas: Well, isn't that a little unusual as a matter of legal procedure? Ordinarily, doesn't a prior of fact have some sort of a standard?
Francis X. Beytagh, Jr.: Well, Your Honor, I think has indicated in the Sherman case that the statutory standard or reasonable, substantial and probative evidence was utilized here by the factfinders. I think their decisions were made against that background.
Abe Fortas: Well, as a question as to whether that is a standard for the prior fact or the standard on their view --
Francis X. Beytagh, Jr.: Yes Your Honor, that's the question we think that it's --
Abe Fortas: I understand what your position and the position of the other side in my mind that this moment anywhere, it seems to be a debatable point how you read the statute but I'm bothered because in this case, it seems to me in other -- I don't recall any decisions of officers at the administrative level in deportation cases. I don't recall encountering a statement by them of the standard that they use.
Francis X. Beytagh, Jr.: Your Honor, I think it's fair to say that as the procedures haven't evolved over the years, they have been developed in administrative proceedings generally as we come more and more to trial type hearings in a deportation cases in immigration context an idea of a degree of persuasion. In the recent case, a matter of a parole as the name of it, the inquiry officer and the Board of Immigration Appeals stated there that the standard of persuasion is preponderance of reasonable, substantial and probative evidence.
Abe Fortas: Is that cited in your brief?
Francis X. Beytagh, Jr.: It's cited in the Sherman brief that we filed, I believe, Your Honor.
Abe Fortas: Probative.
Francis X. Beytagh, Jr.: 10(i) and 43 I believe.
Byron R. White: Now, your colleague -- assuming the previous case, indicated that it would be the standard at all in the administrative level -- the preponderance -- are you saying it is or it isn't?
Francis X. Beytagh, Jr.: I read and I take Mr. Gordon's comments as directed toward the circumstances that exist in this particular case. You really don't get to a preponderance question in a case like Sherman where you only have evidence on one side. You simply have the evidence and you look at it and you determine whether it needs to borrow the standard that the Act prescribes and I think that we have a different situation here and --
Byron R. White: You say the case like the preponderance (Inaudible).
Francis X. Beytagh, Jr.: I think where there is conflicting evidence that I personally would have to say I read the statutes and the law is requiring it and I think that the service is presently applying this --
Byron R. White: And in this case -- in this particular case, the special inquiry officer who was the clearing officer have said that he was -- have been regarded to the requirement solidity of the evidence.
Francis X. Beytagh, Jr.: All that -- no, Your Honor, that's in the Sherman.
Byron R. White: Is that in the Sherman case here?
Francis X. Beytagh, Jr.: All that I find in the special inquiry officer's opinion and this is in response also to Mr. Justice Fortas' question. He said he found the chronology of events decisive. The Board of Immigration Appeals said it's clear that the petitioner continued to engage in prostitution after the period of alleged arrest. It's our position in this case that Section 242(b)(4) of the Act prescribes the standard of proof required of the Service in deportation proceedings and that another provision, Section 106 establishes the scope of judicial review applicable in such cases. We feel that in the administrative proceedings here, the Service showed by at least a preponderance of reasonable, substantial and probative that petitioner, an admitted alien had engaged in prostitution after entry and without reaching the question of the validity of her asserted defense of duressthat such engagement to prostitution continued substantially beyond period when she conceded the alleged duresshave terminated. The special inquiry officer's determination that she was deportable therefore which was of course upheld by the Board of Immigration Appeals, we feel is proper. Since that determination was supported by substantial evidence in the record, the Sixth Circuit, we feel, is correct and affirming in this Court should likewise affirm.
Earl Warren: Mr. Beytagh, should we consider the facts of this case only after June of 1957 because the fact that the law apparently, there was no finding that that was actionable before that because of the coercion.
Francis X. Beytagh, Jr.: I don't Mr Chief Justice, read the opinions below all the way the petitioner apparently reasoned. It seems to me that at most they said accepting arguendo, one that our story was believable, and two, that it made out adequately a duress defense. There is still evidence in the record of prostitution apart from that theory so we don't have to reach that question. But it seems to me that it's not fair to characterize an arguendo acceptance of both the factual and illegal proposition as being tantamount to the acceptance of the validity of the defense in the truth of that.
Earl Warren: But unless they do find that she committed prostitution between those dates of her own free will, it wouldn't be an inference that they didn't consider that in determining the deportability?
Francis X. Beytagh, Jr.: I think that's true. I think they didn't consider it because they found it unnecessary to do so under the circumstances here. That there are more difficult admittedly, legal and factual questions that relate to that period and I think that they determined that it simply wasn't necessary to reach them because there was evidence of activity outside of the period of duress.
Earl Warren: I don't want to take too much of your time but if we're going to find that this -- that any standard you submit by the Government, shouldn't we have to know whether they did consider that as actionable enough the time between April and June 1957?
Francis X. Beytagh, Jr.: Well, Your Honor, I think it's clear that they didn't consider that actionable.
Earl Warren: They did not? They did or did not?
Francis X. Beytagh, Jr.: Did not because they didn't find it necessary to do so.
Earl Warren: Yes, very well.
Francis X. Beytagh, Jr.: I think --
Abe Fortas: I think you're referring sir -- you referred to me the parole and I haven't been able to find that in your brief. Did you say that's 10 --
Earl Warren: It's 10(i) and 43 I think. It is cited in the Sherman brief.
Abe Fortas: Well, I haven't found there in the Sherman brief.
Francis X. Beytagh, Jr.: The petitioner filed and I don't know whether it was in the option.
Byron R. White: It's at page 9 of the petitioner's brief of the Sherman case.
Francis X. Beytagh, Jr.: Since the facts here are obviously subcritical, I would like to briefly consider the record before returning to the legal arguments made by the petitioner and raised here. I should note that we take a radically different view of the record and the facts here than does the petitioner. Indeed, if the record shows the facts as petitioner feels that it does, I think the Government wouldn't be here. One thing upon which the parties do agree here, however, is that the record is rather confused one. We agree with this and would like to note that much of the confusion ever resulted from a number in inconsistencies in petitioner's own testimony. Indeed, as the counsel of petitioner noted that she frankly admitted that she changed her story at one point. There is a great bit of confusion about dates here. The petitioner has now developed what appears to be a rather plausible handling of this problem of dates which has the effect of telescoping the time of her admitted involvement in prostitution insofar as it's possible. On the other hand, the special inquiry officer who of course observed the witnesses and was in the best position to determine their credibility found the facts to be quite different. After considering the testimony and the demeanor of the witnesses and all the surrounding circumstances, he arrived in what we feel to be a most plausible and probably accurate resolution of this problem of confusion particularly as to dates which one finds in the record. His finding that petitioner's engagement in prostitution whatever the circumstances of its commencement continued until late 1958 and not 1957 is we feel amply supported in the record. The petitioner's trip in Knoxville which was referred to previously according to her own witness Mrs. Jackson occurred in 1958 and not 1957. The petitioner's husband as shown by the record in the Kentucky Court and the probative custody proceeding, his death occurred in July of 1958 or 1957. The petitioner herself stated at one point that she received “gifts” of money from that engaging and of course subsequent to learning of her husband's death some six months after he has been killed and at an apartment by the way that she moved to only according to her testimony after the Knoxville trip. Other testimony we feel also confirms the findings as to dates reached by the special inquiry officer. But even apart from his findings, once here in fact that stands out clearly from the record is that petitioner repeatedly and consistently tied the determination of her engagement in prostitution to her meeting this Mr. Anthony Emercon whether that occurred in late 1958 or as early as late 1957. In the circumstances of Emercon as becoming acquainted with petitioner, confirmed and we think that she continued to engage in prostitution at least at the very least until meeting him. He was told by a friend who said that he had relations with her for money that she was “in the business”. Now, we know this is hearsay and so did everybody below but hearsay is generally admissible in administrative proceedings and it seems to me that there are some real question here as to whether it might not have been admissible judicially under an exception to the hearsay rule. But anyhow, he went to her apartment for the purpose--
Earl Warren: May I ask you, is that probative that someone told him that she was in the business.
Francis X. Beytagh, Jr.: Yes, Your Honor. I think it's probative because I don't think people generally run around deporting out women and saying things like this about them if there isn't some substance. Emercon went to her apartment as the record shows for the purpose of having relations with her although he states that he could not go through with it but left $10.00 anyhow or probably not an outstanding alone to prove that she was then engaging to prostitution. This evidence we feel tends to strongly corroborate that her admitted activity continued at least until she met this man. At the earliest under any view of the record, she met him in October of 1957 at least six months after the time that she herself admits that the prostitution started. The inference is most favorable to her engaged in men and assuming that her prostitution started in April and not February. She once gave an affidavit saying that it started in February. The evidence still showed an engagement of prostitution for some six months at the very least. Only two months of which are accounted for by the alleged arrest. She now said the Knoxville trip intervened but as the special inquiry also found it's quite likely that that trip did not occur until 1958. She once stated that she spent three months in Knoxville but under a present view of what happened, she could have been there no longer than several weeks. She started working for the vacuum cleaner salesman in April, continued for two months, wanted to quit but continued for another two weeks and then went to Knoxville to get away returning on some July 4. Parenthetically, her early explanation of why she went to Knoxville that Mr. Wally asked her to go there to practice prostitution and that she was evicted from her apartment because another girl used it for purposes of prostitution it seems to us more possible just as it seems more likely that the Knoxville trip did not occurred in 198 and that she had engaged in prostitution from early ‘57 until sometime late ‘58. In any event, she tied the end of her prostitution to meeting Emercon over and over again as the record shows. Under any view of the testimony, this could not have occurred until late 1957 outside of the period of the alleged duressthus we feel the Government showed she had engaged to prostitution even apart from the period of alleged duressfor substantial period of time in 1957. In addition, the petitioner was arrested for prostitution in early 1959, no charges were dropped and Emercon gave a statement to the police at that time that she was a prostitute. Statement which she says was untrue and was given to help her retain custody of her daughter. Thus, we feel the evidence --
Abe Fortas: He said, it was untrue.
Francis X. Beytagh, Jr.: Mr. Emercon said it was not true.
Abe Fortas: He gave a statement?
Francis X. Beytagh, Jr.: He gave a statement admitting that she was engaging in prostitution with him at that time but said that statement was untrue because there was something about protecting her daughter because the police were going to take it that he didn't give any statement on that. That's what he said.
Abe Fortas: Then that made sense, don't it?
Francis X. Beytagh, Jr.: No. Thus, we feel, there's at least some evidence in the record that her engagement continued into 1959 even in that so far in two months that she admits. Now, in response principally, Mr Chief Justice, to your question, her duress defense, whatever it's merits simply doesn't cover the ration of proven engagement in prostitution and as I stated contrary to her session the factfinders here did not accepted duress offense as true. Rather as we view their opinions they found it unnecessary to reach those questions or to decide whether her story should be believed and she was deportable for having engaged in prostitution outside of the period. Now, as to an affirmative defense of duress, whoever had the burden of proceeding at the burden on proof seems to ask is not relevant here because the question simply never arose. Even assuming that the Government had the ultimate burden of proof once the defense such as this was properly raised, that burden never arose here because her evidence that she produced didn't relate wasn't coextensive with the period of her engagement in prostitution and therefore, the prima facie case which deserve as it made out was not refuted and they did not need to rebut that evidence.
Hugo L. Black: What are you saying again? (Inaudible)
Francis X. Beytagh, Jr.: Well, Your Honor if -- in administrative proceedings and litigation generally, defense such as duress is generally regarded as an affirmative defense on which in some cases the person asserting the defense will have at least the burden of producing evidence that's generally recognized as duress, Your Honor. In some cases, they'll have the burden of -- ultimate burden of proof on the issue. Now, here, all that I'm saying is this question is -- simply never arose here because even though she did produce some evidence of what she says relates to duress, the Government did not need to attempt to rebut that evidence if it's case was based upon -- could be based upon other evidence in the record, evidence apart from the period of alleged duress. As a matter of fact with respect to the factfinders' view of her story, it seems to us clear that have they found it necessary to pass on the variety of the story, neither the special inquiry officer nor the Board of Immigration Appeals would have believed them. The special inquiry officer founded a hard story to believe and the Board of Immigration Appeals stated that it was a bizarre story. But the Board of Immigration Appeals echoing special inquiry officer stated, even if the respondent's story is to be believed, even it be considered circumstances under which she entered the practice prostitution may have amounted to duress, nevertheless the continuance of the practice until at least 1957, late 1957 is not explained cannot be dependent on the ground of duress. Now, just several words about the adequacy of duress defense itself, it seems to me that it's a rather unusual and highly attenuated one. It's an attempt to justify on the grounds principally of economic duress affirmative misconduct. Now, we now concede that in some limited circumstances there maybe an adequate defense of duress under such condition. The courts have generally carefully scrutinized such alleged duress defense. And I think sociologist would probably tell us that most prostitution is engaged in under some economic duress. Now, supposed instead of deciding to engage in prostitution, petitioner decided in order to get this money that she was going to rob a bank or forge a check. I think that she would be hard pressed to maintain that the circumstances were suppression to justify her activity if it later was brought a proceeding which later brought against deport. Falsely analyzed therefore we've been able to hear duress defense had it been reached and if you reach it theoretically it's on its face legally inadequate even if her story is believed. Her reliance on the Board of Immigration Appeals case in which the duress defense was accepted seems to us wide in point. That case was a rather unusual one. The girl there was 17 years of age, she was held in custody and threatened with harm that she didn't brought through with the prostitution, tried to escape unsuccessfully and was caught continued with her engagement only until she could get away and a special inquiry officer there specifically stated that he found her story completely credible and believable.
Hugo L. Black: Is it quite right to settle this that necessary to import the idea of duress such as when it occurred and your question of whether a woman should be presumably sent out of the country is caught under intense economic pressure can to engage in prostitution.
Francis X. Beytagh, Jr.: Well, that's what the story is.
Hugo L. Black: That's right, that's right.
Francis X. Beytagh, Jr.: I'm not sure that it is. There as far as I know there is no long subject of duress in something other than --
Hugo L. Black: That's just words that have been put in there and according to the idea to call it duress.
Francis X. Beytagh, Jr.: Right. Analogizing for some known --
Hugo L. Black: It might be quite humorous of making a contract for something over that kind under duress.
Francis X. Beytagh, Jr.: I think --
Hugo L. Black: Here, which is a kind of a question almost of equity in it.
Francis X. Beytagh, Jr.: I think it comes pretty close to that but that has to be based of course on credibility of her story.
Hugo L. Black: Oh, yeah. That's exactly.
Abe Fortas: This is -- you refer this to prerogative and as quoted in the petitioner's brief to suspend, it says that or they extend the services burden as declined by the Board of Immigration Appeals as follows, “Ordinarily in deportation proceedings, the Service must establish its case by a preponderance, a reasonable substantial and probative evidence” and that's essentially a civil standard, isn't it? Especially --
Francis X. Beytagh, Jr.: I don't -- I think -- I think I'd say essentially though I'd like to be able to state that it seems to us that the words reasonable substantial and probative have meaning more intended by Congress to have meaning. They relate to quality of quantity but so do most of the conventional formulations of burden, clear and convincing. There are adjectives that attempt to describe something that's very difficult to describe.
Abe Fortas: But this is very close to distinct preponderance of the evidence rule that describes some kind of them, would you agree with that?
Francis X. Beytagh, Jr.: Well, I agree generally. It seems to me that burden on the Service. We admit the Government had the burden of proof in deportations proceedings and in view this statute is written against that background on 1952. And the Congress used these words reasonable, substantial and probative to tell the administrative official that the evidence had to have some quality to it.
Abe Fortas: Well, it's in the dispute as to whether the language in the statute is addressed to the administrative officials or whether it's merely and exclusively language to be -- to guide the courts in review.
Francis X. Beytagh, Jr.: Well, if it relates to judiciary review as has been argued, it seems to me first to be a rather strange place to put it just right in the middle of a long statute relating to proceedings conducted by special inquiry officers. Second, Congress apparently didn't feel that it was related directed towards judiciary review because in 1961 the enacted Section 106 which prescribes a standard of -- for judiciary review in Courts of Appeal. It seems to me it would have been somewhat superfluous to do that as they viewed it as relating only to judicial review.
Abe Fortas: And the other thing I wanted to ask you about this statement from Peralta, as it says, ordinarily in deportation proceedings, do you know whether there are circumstances in which Service uses some other standard?
Francis X. Beytagh, Jr.: Yes. There have been a few isolated cases in which the Service has applied a higher standard than preponderance of evidence by reasonable substantial probative evidence. The cases generally involved citizenship clients in which the Service has found it expedient to require technically as to a claim that relates to an event long, it has something more than just preponderance. There are here in these cases that are --
Abe Fortas: Do you think it's authorized to do that?
Francis X. Beytagh, Jr.: It seems to me that that's within the attorney general's discretion with people that --
Abe Fortas: Are those cases in your brief?
Francis X. Beytagh, Jr.: No, Your Honor, they are not. It seems to me the problem there is that you're talking about citizenship matters and not simply, it arises in a deportation proceedings admittedly. But question relates to citizenship and I think that that's been the impelling back which led them to require a higher standard. I want to talk for a couple of minutes about this problem of burden of proof and degree of persuasion. We perceived very well the difference and the distinction between the location of the burden of proof on one or the other person who whims that the evidence is inactive for it or the risk of non-persuasion as involved and the degree of persuasion or conviction which a factfinder should have in reaching his determinations and all of the statutes are admittedly not explicit on this. I am no hesitancy in agreeing that the burden of proof in deportation cases rest upon the Immigration Service. And it's clear to me that Section 242 has prescribed the reasonable substantial and probative evidence standard was written against that background. The Congress in 1952 made specific exceptions by placing the burden of proof such as in Section 291 on aliens rather than on the government. Now, it doesn't make any sense to me that specifically place it on someone else if you're not assuming that it's on the Government generally. And it seems to me that it's fair to assume that the burden of proof was burden by a preponderance of the quality evidence that --
Byron R. White: So do you say the words of that statute reasonable --
Francis X. Beytagh, Jr.: Substantial and probative.
Byron R. White: This statute was probative leaving it descriptive of the extent of the Government's burden that's been filed.
Francis X. Beytagh, Jr.: It seems to me that it's almost impossible to talk about this thing that the trial of fact has to be convinced that it's more probably true than not in this case the petitioner committed acts of prostitution.
Byron R. White: That really sounds like it's addressed to a review of the case.
Francis X. Beytagh, Jr.: No, it seems to me that it's a caution to the factfinder that the evidence has to be of a certain quality, reasonable substantial and probative. So I think this Court in Rowoldt and Gastelum has picked this language up not only language of judicial review but used it, said it found the evidence insignificantly probative, said it found the evidence insubstantial. It seems to me these are flexible and workable terms both for administrate of factfinding and for judicial review and there's room for play in the joints and hard tuck cases.
Byron R. White: Well then, where do you get your preponderance test?
Francis X. Beytagh, Jr.: Where do I get it?
Byron R. White: Yes.
Francis X. Beytagh, Jr.: It seems to me that if the burden of proof is on the Government and leaves on --
Byron R. White: So you don't get it out of that section.
Francis X. Beytagh, Jr.: No, that's true.
Byron R. White: But where do you get it?
Francis X. Beytagh, Jr.: If the burden of proof is on the Government and we have these three conventional formulations that we talked about, I think it's fair for the Board to assume and for us to assume the Congress intended --
Byron R. White: So this is a -- this is the -- the standard then, it's judge-made not by the legislature.
Francis X. Beytagh, Jr.: No, I think it's fair to assume the Congress intended that that was a standard that would apply.
Byron R. White: The judge --
Francis X. Beytagh, Jr.: If the burden of proof is on someone it has to be -- we say by some point of her amount it seems to me it's fair to infer that Congress not having said anything about it intended that that person --
Byron R. White: That might get to somewhere in terms of saying it's a basic preponderance. It's not going to get you anywhere in terms of deciding whether in terms of if the evidence has to heavier on one side or the another, how much have used and the other side says that there's the posture of the burden that it should declare but didn't say it, it should be a reasonable doubt, the unreasonable doubt.
Francis X. Beytagh, Jr.: Yes, Your Honor.
Byron R. White: Where did the Court get the -- what is the rule about clear and convincing come from in the (Inaudible)?
Francis X. Beytagh, Jr.: Well, in the first place denaturalization proceedings are court proceedings and this Court exercising its supervisory power over the Court in an area in which Congress cannot specifically acted by statute prescribed that standard because of the considerations involved. That's the traditional broad standard and it seems to us to make immanently good sense because generally, attempt to take away a right to confer, the vested rights such as citizenship by naturalization is based upon broad --
Byron R. White: Where do you get the statute that because there is a burden of proof that the standard should be a preponderance rather than --
Francis X. Beytagh, Jr.: I don't get that out of the statute. I think it's a fair interest that that's what the Congress intended.
Byron R. White: Right. Great, is there a convincing or pre --?
Francis X. Beytagh, Jr.: No, preponderance of the evidence.
Hugo L. Black: But then exact same thing, wouldn't it?
Francis X. Beytagh, Jr.: Yes, Your Honor.
Hugo L. Black: That she admitted it.
Francis X. Beytagh, Jr.: As we understand. But it seems to me that's against the background of congressional intent and enacting in 1952 Act with a standard for the following. Thank you.
Earl Warren: Number 80, Joseph Sherman, Petitioner, versus the Immigration and Naturalization Service. Mr. Forer.
Joseph Forer: Mr Chief Justice, may it please the Court. This is a deportation case in which the question is what is the standard of proof which the Immigration and Naturalization Service must satisfy when it seeks to approve the deportability of a resident alien? The petitioner, Joseph Sherman was born in Poland in 1906. When he was 14 years old in 1920, he entered the United States as an immigrant with his mother and the rest of his family. 43 years later in March 1963 the Immigration Service instituted deportation proceedings against them on the charge that he had re-entered the country on December 20, 1938 without inspection. Now, in December of 1938 and for that matter beginning with the Immigration Act of 1917 and up until December of 1952, there was a three-year statute of limitations on deportations for entry without inspection. But in 1952, effective December of 1952, the current Immigration and Nationality Act was enacted and it retroactively removed the statutes of limitations on deportation. So the result is that when this proceeding was brought against Mr. Sherman in March 1963 it was brought not only 25 years after his alleged offense of illegal re-entry or re-entry without inspection but also 22 years after that entry if it had occurred had been later rest by a statute of limitation. Now, in the deportation proceeding, the services case rested on two bases of evidence. The first section of evidence related to a passport, the Service introduced evidence that in June of 1937, the petitioner applied for a United States passport under the false name of Samuel Levine and to his application there was attached his photograph. A few days after the application was made, well, the Service then introduced a passport as a self-proving document which on its face indicates that it was issued a few days after this application was made. This passport is in the name of Samuel Levine and then has affixed to it petitioner's photograph. The record doesn't show to whom that passport was delivered and it doesn't show how it came under the possession of the Immigration and Naturalization Service and it doesn't show what happened to that document between December of 1938 when we last get some idea of its history and the time of the immigration proceedings in 1964 and 1963. But the evidence does show that in June of 1937, somebody traveled to Europe on the passport issued to this false Samuel Levine. And on December 20, 1938, somebody entered the United States with the aid of this passport issued to Samuel Levine. The only direct evidence that the petitioner had ever left the country after his original entry was the testimony of a man by the name of Edward Morrow. Morrow had fight with the loyalist forces in Spain during part of 1937 and 1938. And he testified at the deportation hearing that he had seen the petitioner also fighting with the loyalist forces in Spain during that time. And he also testified, Morrow testified, that when he returned to the United States from Spain by way of France on the Steam-Ship Ausonia which arrived in the United States in December of 1938 that the petitioner was on that boat and he also testified that he knew the petitioner had used the name Samuel Levine. Now, Morrow was testifying 27 years after these alleged events. By his own testimony he had never spoken to the petitioner or to this Samuel Levine. He had never been introduced to him. He had never had direct contact with the person that he claimed was petitioner. As he testified, he had merely seen that person around and in some unexplained fashion, unexplained since he had never been introduced to him or spoken to him, he knew somehow that the man was named Samuel Levine. Considering that this was 27 years after casual contact, this is on its face and heroic achievement of recollection. Particularly since Morrow's memory was admittedly weak on matters which were much more reasonable. Morrow himself admitted that he was not positive of his identification but said and I quote, “I feel I saw this man in Spain.” But the difficulty with Morrow's testimony goes further than that. Before the hearing at which Morrow testified, he had been interviewed by the Immigration and Naturalization Service. And he was shown this passport photograph of the petitioner which had been on the passport of Samuel Levine and Morrow hadn't been able to identify the petitioner from that photograph. Although obviously that photograph was a better likeness of the petitioner in 1938 and the petitioner himself was in 1964. Furthermore, when Morrow was interviewed by the Service before the hearing and he was asked about Joseph Sherman or Samuel Levine, he couldn't recall either name much less recalled that this was a person he had seen in Spain. Now, he suggested that perhaps the subject of the passport photograph, he suggested in the interview that perhaps the subject of the passport photograph had been on the ship, the Aquitania on which he, Morrow had sailed from the United States to France in June of 1937. But when he testified at the hearing, he reversed them so. This time, he said, the petitioner was not on the voyage to France in June of 1937, the Aquitania. This time he put him on the voyage to the United States from France in December 1938 on the Steam-Ship Ausonia. Now, on this evidence the petitioner was ordered to deport and on review by the Third Circuit -- Second Circuit, I'm sorry, Judges Waterman and Smith with Judge Friendly dissenting, set aside the deportation order and remanded it the Service. They held that is the majority of the three-judge panel held that in a deportation case against a long resident alien, such as the petitioner, the Service is obliged to prove its case by the criminal standard of proof that is it must prove the guilt beyond a reasonable doubt. Now, since the standard regularly employed in deportation proceedings by the Board of Immigration Appeals and the special inquiry officer who are the factfinders is that deportability merely has to be proven by a preponderance of reasonable substantial and probative evidence, the panel vacated the deportation order and remanded the case to the Service for reconsideration in the light of the higher standard of beyond the reasonable doubt. Judge Friendly as I said, the Senate, he was sympathetic as he said to the idea of requiring more than a rare preponderance standard in cases of deportation involving the resident aliens. But he felt and he said that Congress had foreclosed the matter because it had provided a standard of proof for the Service in the administrative deportation hearing by Sections 106 (a) and 242 (b) of the Immigration and Nationality Act. These two sections provide in substance that administrative findings of deportability are valid and conclusive if and only if these findings are supported by reasonable substantial and probative evidence. The two-court majority felt that those two sections had nothing to do with the situation because they related only to a judicial review and were simply the substantial evidence -- the familiar substantial evidence standard for judicial review. The Government petition for rehearing in the Second Circuit took the case en banc. The en banc court reversed the panel and sustained the deportation order adapting Judge Friendly's dissenting opinion of the panel. Judges Waterman and Smith dissented that hearing to their original opinion. Now, as the case was decided in the Second Circuit, the focus was on the applicability of Sections 242 (b) and 106 (a) of the Act. And in our brief, we show and I think we show quite conclusively that these two sections have nothing to do with the case both on the basis of their language, their legislative history and their administrative interpretation. On all three bases, it is clear that these sections merely relate to the standard for judicial review and furthermore they relate not to the burden of proof or the nature of the burden of proof but rather to the quality of the evidence on which the order must be based. Now, as we understand the government's brief, the Government does not contend otherwise, it does not contend that these two sections do apply to the Service at the -- as the setting a standard of proof what they must do with the deportation hearing. So really, I don't think it is necessary for me to argue now that these two sections are not in terms controlling.
Byron R. White: But aren't we reviewing a judgment who did think they were quite relevant?
Joseph Forer: I beg your pardon? The --
Byron R. White: Didn't the Court of Appeals hold them to be relevant?
Joseph Forer: The Court of Appeals held they are relevant.
Byron R. White: Isn't not the judgment we're reviewing?
Joseph Forer: Yes. No, the Court of Appeals held they were controlling.
Byron R. White: Yes.
Joseph Forer: All I'm saying is that I don't -- we disagree with that and we think we have demonstrated why the Court of Appeals is wrong. I'm just saying that I'm just going to rely in my brief for that demonstration to convince you because I don't think that the Government disagrees with us, so I don't want to spend my time on oral argument on a point that at least I think I can just rely on our brief. Now, the Government does try to draw certain inferences and say that the existence of the judicial review standard has an influence but it seems to us that it is impossible to reason backward from a judicial review standard as to what is the standard for the burden of proof at the trial. In a criminal case, on judicial review the jury's verdict, the finding of guilt has to stand if it is supported by substantial evidence as that's the same substantial evidence test as in administrative proceedings. And yet the standard of proof at the criminal trial is a proof beyond a reasonable doubt. Now, we say that since Congress has not fixed the standard of proof and since at the administrative proceeding and since you can't reason backward from the judicial standard of proof, there simply is no statutory standard of proof and that means that the standard has to be defined by the judicial system and ultimately by this Court. And it is our contention that in the case of resident aliens, for reasons I will go to in a minute, the standards should be either that of the criminal standard of proof beyond the reasonable doubt or at least the standard which the Court has created in denaturalization cases whereby the Government must prove lost citizen -- denaturalization by clear unequivocal and convincing evidence beyond a mere preponderance of the evidence. In the denaturalization cases as well as in other kinds of cases such as cancellation of land grants, the Court required compliance with this higher standard of proof that is with the clear unequivocal and convincing evidence standard which is of course a higher standard than the traditional civil standard of preponderance on the grounds that in those cases, denaturalization or cancellation of land patents that those cases involved a revocation of precious rights conferred by governmental action. Now, the same logic obviously applies to deportation cases against resident aliens. Resident aliens have been granted by governmental action, the precious right to reside and remain in this country. And with that right they acquire and have been granted a whole complex of other rights which residents of this country have. And aliens who have accepted this right have directed the course of their lives in reliance on the possession of these rights. So that if you take the logic of the cases involving cancellation of other governmental grants, at least the denaturalization standard should be applied to deportation cases involving aliens who have been admitted for permanent resident. But we think that there are still other reasons for requiring a higher standard than the preponderance standard and that these reasons call for adopting the criminal stand. And this we think because in several respects in terms of its consequences, its nature, its procedures, deportation cases should for the purposes of the standard of proof be equated with criminal cases. Now, deportation is -- of a resident alien is different in any other kind of administrative or civil procedure. Because that deportation is a deprivation of personal liberty and it is one which in many cases and perhaps most cases is a more drastic deprivation of liberty for the alien and for his family who may be citizens, then the usual term of imprisonment. Now, whatever the case may be for theoretical constitutional purpose, realistically, the deportation of a resident alien is punishment and as to him, that is punishment, and this case illustrates that. In this very case, the Government is seeking to uproot a man who has lived in this country since he was a child for 46 of the 60 years. His family is here, his friends are here. His means of making a livelihood, his skills, his resources and ability to survive, his very ability to communicate and the only language he knows, these depend on his remaining here and the Government is attempting to remove him from this environment and return him to a country from which for all realistic purposes, he's a stranger.
Hugo L. Black: You said his skills, what are his skills?
Joseph Forer: Well, he is a workman. He has developed worked -- I beg your pardon.
Hugo L. Black: What work?
Joseph Forer: He is now working in the construction industry. I do not know the exact trade, but he is now working in the American construction industry, at different times, he's a garment worker, taxi cab driver. And his work now involved -- he has to communicate with other workers and he can communicate with other workers because he speaks English. His job was here, his wife was here, and this obviously would be a terrible deprivation to send him back.
Speaker: Is this man come under the -- because his family, does he come under that -- does this man come under the provision excluding for getting fraudulent entry?
Joseph Forer: This is -- well, first of all, this is not an exclusion provision. It is an expulsion provision. I mean they institute a proceeding against him as a resident alien. Secondly, they didn't charge him with a fraudulent entry, in which case incidentally there would have been a five-year statute limitation. They charged him with entry without inspection as an immigrant.
Hugo L. Black: In 1920?
Joseph Forer: In 1938. He originally entered 1920. There is no question that entry was legal and he was inspected and he was admitted. Their claim is that he left the country in 1937 to go to fight in Spain and he came back in 1938 posing as an American citizen. And it is that entry which they claim a proof, it is that entry in which they now say subjects him to expulsion. Did I made myself clear, Justice Black?
Hugo L. Black: What was their reason for not wanting him back with them?
Joseph Forer: The reason for not wanting him back? Well, it isn't -- I don't know. There is no indication whether they wanted him back or not.
Hugo L. Black: I mean, what is their objection for coming then.
Joseph Forer: I don't know that they had any objection. We don't even know that he -- assuming that they prove that he left.
Hugo L. Black: I understand the assuming.
Joseph Forer: I would have -- I mean that is a historic fact that they objected to -- people going to fight in Spain and especially American citizens. Of course this man was not an American citizen. They never had a chance. Assuming he left, assuming their theory is proved, they never had a chance to indicate that they had an objection or didn't have an objection. That's their complaint. They didn't have a chance to inspect him.
Hugo L. Black: Who is this man who testified against him?
Joseph Forer: The man who testified against him was a man by the name of Morrow who had fought in Spain and who testified that he had seen the petitioner in Spain.
Hugo L. Black: Had seen him in Spain.
Joseph Forer: Seen him in Spain, yes. And as I say, his testimony is suspect --
Hugo L. Black: (Voice Overlap) in Spain?
Joseph Forer: Morrow was in Spain.
Hugo L. Black: He was in the war too?
Joseph Forer: Yes.
Hugo L. Black: And on the same side?
Joseph Forer: Yes, but he said that he was on the Loyalist side and not on the Franco side and he said that the petitioner was on the Franco side.
Hugo L. Black: (Voice Overlap) testified here, was he an informer?
Joseph Forer: Well, he is not a professional informer. The Service apparently went around looking for people who had fought in Spain. They had a clue because they had this passport of a Samuel Levine and the evidence is that this Samuel Levine whoever he is had been in Barcelona during the war and they know -- they had a list of American citizens who fought for the Loyalists in Spain. So they went around looking for some veteran of the Civil War who was ready to testify that the Sherman had been -- he have seen the Sherman in Spain. They finally found somebody (Voice Overlap).
Hugo L. Black: Does the record show whether this is the only one he has testified against?
Joseph Forer: The record doesn't show, but I'm sure.
Hugo L. Black: Is he a professional or is he --?
Joseph Forer: No he's not a professional informer unless he'd become one since. He was not a professional informer. But the point is that professional informer or no professional informer, he started out knowing nothing. And the more he hunted with hounds, the more he acquired the ability to identify the hare. Now, that's what happened in this case. Now, because of the severe and punitive aspects of deportation, this Court in Jordan against the De George applied the deportation statute, a doctrine which otherwise is confined to criminal statutes, namely the void for vagueness doctrine. So, by the same token, it seemed to us the Court can logically apply the criminal standards of proof. Another reason aside from the consequences of deportation are the causes of deportation. If you read the causes which are listed in the Immigration and Nationality Act, they read like a penal code. They constitute basically a catalogue of offenses. Many of which are supposed to show moral turpitude or danger to the state. Moreover, it's an unenlightened kind of penal code. It inflicts banishment for trivial matters to the most remote conduct and even is adhered to offenses, once barred by statute of limitations and to offenses which weren't the broad of all offenses at the time they were committed. And what point is the really punitive aspect of deportation as opposed to its ostensible regulatory aspect is that many of the causes, perhaps most of the causes of deportation have no reasonable or rational relationship to the avowed regulatory objective of deportation. The regulatory objective of deportation, the thing that this Court has said takes it out of requiring the criminal -- the constitutional criminal safeguard, the regulatory aspects is that the United States is just getting rid of somebody who is -- of an alien who isn't fit to enjoy the privilege of residing here. But actually, nobody makes a determination of fitness, and in this very case, who could make a rational -- can draw a rational conclusion that the petitioner's unfit to live in this country, because if you accept everything that the Government says is true, in 1938, because he wanted to, in his enthusiasm to risk his life as a premature anti-fascist fighter, he cheated on getting a passport and entering and leaving the country. This is some 30 years ago. In its procedures, deportation is also like a criminal action.
Abe Fortas: Is it charged (Voice Overlap) is it charged that he fraudulently cheated as you put it (Voice Overlap).
Joseph Forer: No, the charge is, I said, assuming everything that he say is true everything and not even more than that.
Abe Fortas: No, let's get to the charge.
Joseph Forer: The charge is that he entered without inspection.
Abe Fortas: That is to say that he -- and that means that he entered pretending to be a U.S. citizen?
Joseph Forer: No, he entered, I suppose you could evade inspection or avoid inspection in a number of ways (Voice Overlap). You can pretend to be a citizen and get away with it, you can hide a wheelbarrow or --
Abe Fortas: The record then will show what happened here.
Joseph Forer: They claim. They think they have proved by the preponderance of the evidence that he came in using the false passport and thereby evaded inspection as an alien.
William J. Brennan, Jr.: Well, that is that -- he avoided inspection by pretending he was Samuel Levine.
Joseph Forer: That's the point.
William J. Brennan, Jr.: Is that it? Yes.
Joseph Forer: That's the point. Now, I've talked about the consequences of deportation being like that, a crime, I've said the causes of deportation are analogous but the causes --
William J. Brennan, Jr.: (Voice Overlap) is going much further than any --
Joseph Forer: What did you say?
William J. Brennan, Jr.: Your proposition would carry us much further than this Court ever gone.
Joseph Forer: Oh, no question about it. But you haven't –
William J. Brennan, Jr.: But hasn't this very proposition been urged in earlier cases and objectives?
Joseph Forer: No.
William J. Brennan, Jr.: It has not?
Joseph Forer: No. It has not.
William J. Brennan, Jr.: That is this -- treating them as criminal cases?
Joseph Forer: For constitutional purposes, this Court long ago decided that you don't have indict by -- over a very strong dissent that Justice Rutledge for example, is offering. But as Justice Jackson said in the Spector case, who said that these administrative determinations have been sustained as constitutional only by considering them as not inflicting punishment. But the more we go on, the more they add causes of deportation, the less these causes have to with do with the ostensible regulatory purposes. The more these causes become retroactive, he says, the less possible it becomes -- to give any logical content to this doctrine. And all I'm saying now is that if -- maybe it is a civil, and unless you overrule yourself it is civil for the purposes -- for constitutional purposes, you care free now to develop a standard of proof. And the standard you should develop and I won't go into the procedures, but the procedures as you know can involve arrest, supervision and so forth, considering these things, it would be reasonable to make it a criminal standard or at the very least, the standard of reasonable substantial and probative evidence. It is just -- I don't mean reasonable, I mean the standard of the denaturalization case. Now, it is just simply offensive for the Department of Justice to be able to use the same standard of proof to destroy a man's life as it prevails if you're trying to prove in some small court, a $100-court case of a sidewalk slip, or a bill collection claim for $35, there's nothing new with the courts adopting as a matter of judicial policy a higher standard of proof and preponderance in civil cases including in some cases proof beyond a reasonable doubt. Now I've mentioned the naturalization cases, cancellations of land patents, but there's a whole host of other situations in which the English and American Common Law Courts have used these higher standards. Whenever fraud is involved, proof of a lost will, proof of parole trust, reformations of the deed, adultery, illegitimacy of a child born in wedlock, and so forth, all of these have had higher standards of proof than the traditional civil standard. Now, this country is a country of aliens and the children and grandchildren of aliens. In our deportation laws, because of their harshness, all of which are illustrated here, their harshness, their rationality, we have in a sense betrayed our heritage. The Court has refused to confine Congress as to its power. It's refused to apply substantive due process, a bill of attainder clause, ex post facto, the First Amendment, and so forth. But it has not refused to confine the Service, maybe out of remorse or some of the thing it has allowed Congress to do. What we are asking here is no more than that you do confine the Service to the point where this man's liberty can -- and that of any other resident alien cannot be destroyed, short of proof which is more than the bare preponderance of the evidence. Thank you.
Earl Warren: Mr. Gordon.
Charles Gordon: Mr Chief Justice, may it please the Court. As I see it, the issue presented by this petition is narrow one. It is not disputed here that the statute prescribes for deportation for entry without inspection under the circumstances depicted here. It is not contended that the statute is unconstitutional for any reason. Moreover, the petitioner does not claim that he was not given a fair hearing nor does he assert that there was any deviation from due process. His sole contention relates to the adequacy of evidence on which the deportation charge was reported. Now, petitioner relies heavily on the severity of the consequences of deportation particularly for long time residents. With that premise, all of us will agree. What we do take issue with, however, is the nature of the structure petitioner seeks to place upon that premise. To us, the decisive consideration here is this, the administrative tribunal found unpersuasive evidence convincing to it that there had been an entry without inspection. The Court of Appeals in reviewing that decision found that the administrative decision was reasonably supported by probative and substantial evidence. We believe that petitioner's hypothesis regarding the measure of persuasion is unrelated to the realities of the record before this Court.
Abe Fortas: Just as a matter of interest Mr. Gordon, how did it happen that suddenly 25 years after the alleged event, the Immigration and Naturalization Service of which you were a Deputy General Counsel have gone after this man?
Charles Gordon: Your Honor, the delay in the number of years is more seeming than real. The fact is that the petitioner reentered in 1938. The following year, World War II intervened and there were deportations. After the end of World War II, there was a period in which the conditions have not been stabilized. Then information came to us that there were a number of people like petitioner how had used fraudulent passports. Investigation was conducted. The investigation took many years. The investigation was followed by efforts to subpoena the petitioner and other witnesses, they resisted, court proceedings followed, and eventually they were required to answer the subpoena's, eventually we've got to the point where they claimed Fifth Amendment privilege and then we proceeded on the other evidence, so the delay isn't as long as it appears, we were trying during that time to make the deportation case.
Abe Fortas: I am sure your Service based the statutory's limitations. When the statute provides for a period of limitations, is there any administrative period of limitations that the Service has adopted in effect to the deportation proceedings of any kind?
Charles Gordon: Your Honor, there is no period of limitation as such. However, there is an administrative policy of compassion. We have --
Abe Fortas: How many years is that?
Charles Gordon: There are no years. There are cases in which it is our conviction that the consequences of deportation are excessively severe because the family ties, because of the age of the petitioner and because of other considerations urged. In those cases, we do not press for deportation. There are several thousand such cases. In our judgment, this was not such a case. Now, I want to point out moreover Your Honor that Congress has provided has provided avenues for relief in cases of this kind. There are a number of discretionary remedies which were available to the petitioner and during the hearing he was asked, “Do you wish to apply for any of these discretionary remedies?” He said, “I am going to think about it. I'll let you know later on.” And thereafter he thought about and decided not to apply. Well, I can't probe his mind. I do not know why he didn't chose to apply, and that's he didn't want to testify, about his activities. But that's speculations. The fact is that there were opportunities for relief, he did not take advantage of it.
Earl Warren: Suppose he were entitled to believe that there was nothing in this deportation except this particular thing.
Charles Gordon: That is all there is in this deportation, entry without inspection. There is no other charge and we don't claim that there's any other deportation charge we would bring against them.
Hugo L. Black: And you say that you pursue this one man for years, on that charge?
Charles Gordon: Your Honor, we haven't pursued this one man. There has been a whole group of individuals like this and we we're trying to make a case. It was very difficult because this man used a false name and it was hard to connect him Joe Sherman with Sam Levine. Finally we did assemble the evidence and we proceeded as expeditiously as we could.
Earl Warren: Have you deported the great many of them who also went over there?
Charles Gordon: You Honor, I do not believe we have deported any because the others did apply for discretionary relief and were granted discretionary relief. We gave the same opportunity to this petitioner. He did not take advantage of it.
Hugo L. Black: You could have granted without even verifying, couldn't you?
Charles Gordon: Well, he must make an application. He must testify, he must --
Hugo L. Black: That's just a rule but you don't have to follow it, do you?
Charles Gordon: No, Your Honor, but before we exercise our discretion, we would want to know what type of individual this man is, what he's been doing and whether he's deserving a discretion.
Earl Warren: We'll recess now.