KIMM v. ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 139.
Argued May 16-17, 1960.
Decided June 13, 1960.
Joseph Forer argued the cause for petitioner. With him on the brief was David Rein.
John F. Davis argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Philip R. Monahan.
Per Curiam.
Petitioner applied for suspension of an order directing his deportation to Korea or permitting his voluntary departure. He does not question the validity of the deportation order, but contends that he is within the eligible statutory class whose deportation may be suspended at the discretion of the Attorney General. § 19 (c) of the Immigration Act of 1917, as amended. Relief on this score was denied on the basis that the Attorney General has no power to exercise his discretion in that regard since petitioner failed to prove his eligibility under that section and the Internal Security Act of 1950.
Before the hearing officer, petitioner was asked if he was a member of the Communist Party. He refused to answer, claiming the Fifth Amendment privilege against self-incrimination. The officer refused the suspension on the grounds that petitioner had failed to prove that he was a person of good moral character and that he had not met the statutory requirement of showing that he was not a member of or affiliated with the Communist Party. The Board of Immigration Appeals affirmed on the latter ground, as did the Court of Appeals. 263 F. 2d 773.
Petitioner contends that he presented “clear affirmative evidence” as to eligibility which stands uncontradicted and that the burden was on the Government to show his affiliations, if any, with the Party. He contends that the disqualifying factor of Communist Party membership is an exception to § 19 (c) which the Government must prove. We think not. Rather than a proviso, it is an absolute disqualification, since that class of aliens is carved out of the section at its very beginning by the words “other than one to whom subsection (d) of this section is applicable.” Subsection (d) referred to aliens deportable under the Act of October 16, 1918. Section 22 of the Internal Security Act of 1950 amended the 1918 Act to include Communists, and thus terminated the discretionary authority under § 19 (c) as ta any alien who was deportable because of membership in the Communist Party; Petitioner offered no evidence on this point, although the regulations place on him the burden of proof as to “the statutory requirements precedent to the exercise of discretionary relief.” 8 CFR, 1949 ed., § 151.3 (e), as amended, 15 Fed. Reg. 7638. This regulation is corn-pletely consistent with § 19 (c). The language of that section, in contrast with the statutory provisions governing deportation, imposes the general burden of proof upon the applicant.
It follows that an applicant for suspension, “a matter of discretion and of administrative grace,” Hintopoulos v. Shaughnessy, 353 U. S. 72, 77 (1957), must, upon the request of the Attorney General, supply such information that is within his knowledge and has a direct bearing on his eligibility under the statute. The Attorney General may, of course, exercise his authority of grace through duly delegated agents. Jay v. Boyd, 351 U. S. 345 (1956). Perhaps the petitioner was justified in his personal refusal to answer — a question we do not pass upon — but this did not relieve him under the statute of the burden of establishing the authority of the Attorney General to exercise his discretion in the first place.
, _ Affirmed.
Section 19 (c) provided, in relevant part:
“In the case of any alien (other than one to whom subsection (d) of this section is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may ... (2) suspend deportation of such alien if he is not ineligible for naturalization . . . if he finds . . . (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon the effective date of this Act. ...” 8 U. S. C. (1946 ed., Supp. II) § 155 (c).
Section 19 (d), as amended:
“The provisions of subsection (c) shall not be applicable in the case of any alien who is deportable under (1) the Act of October 16, 1918 (40 Stat. 1008; U. S. C., title 8, sec. 137), entitled ‘An Act to exclude and expel from the United States aliens who are members of the anarchist and similar classes,’ as amended . . . .” 54 Stat. 672, 8 U. S. C. (1946 ed.) §155 (d).
The Act of October 16, 1918, c. 186, 40 Stat. 1012, as amended by the Internal Security Act of 1950, c. 1024, § 22, 64 Stat. 1006-1008, provided in pertinent part:
“Any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
“ (2) Aliens who, at any time, shall be or shall have been members of any of the following classes:
“(C) Aliens who are members of or affiliated with (i) the Commu- ' nist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party; or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt;
“Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported ....’’
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