A-6178382
Decided by Central Office, August 22, 1949 Decided by Board, November 8, 1949 Ruling of Acting Attorney General, November 16, 1949 Ruling of Acting Attorney General, December 17, 1949
Discretionary relief — Section 19 of the Immigration Act of 1917, as amended — Evidentiary basis.
Discretionary relief under section 19 of the Immigration Act of 1917, as amended, may be denied although the alien has not been apprised of all the material considered as a basis for declining to favorably exercise this discretionary power.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE
Discussion: This Service on September 27, 1947, entered an order directing that the respondent be deported to Canada on the charge stated in the warrant of arrest. On November 28, 1947, the Board of Immigration Appeals directed that the hearing be reopened for introduction of evidence bearing on allegations to the effect that the respondent is or was a member of or affiliated with the Communist Party. A reopened hearing was held, as directed, on June 3, 1949.
The respondent is a 36-year-old female, native and citizen of Canada, who last entered the United States on October 5, 1933, at Boston, Mass., by falsely claiming United States citizenship. Deportability is not contested. Because of marriage to a citizen of the United States, the respondent has requested that her deportation be suspended under the provisions of section 19 (c) of the Immigration Act of February 5, 1917, as amended.
The issue, therefore, is whether or not the case justifies grant of the request made. The Presiding Inspector has concluded that the relief sought should be denied for the reason that the record of the hearing establishes that the respondent is a member and former secretary of the International Workers Order, an organization designated by the Attorney General as subsersive and under Communist domination.
Upon examination of the file covering the alien, which contains not only the record of hearing but other evidence concerning the alien's activities, we are satisfied that as a matter of discretion the recommendation of the Presiding Inspector should be followed and the alien deported. The power of suspending deportation is a discretionary one ( U.S. ex rel. Weddeke v. Watkins, 166 F. (2d) 369 (C.A. 2), cert. denied 68 S. Ct. 904 (1948); U.S. ex rel Von Kleczkowski et al. v. Watkins, 71 F. Supp. 429 (D.C., S.D.N.Y., 1947)), and not a matter of right. Since relief from deportation is not a matter of right but of discretion, it is quite apparent that any evidence, whether or not of record, officially touching upon the question of qualification for the benefit sought may be considered. The evidence in the file (some of it confidential in nature) establishes to our satisfaction that the alien's continued presence in the United States would be prejudicial to the interests of this country. Obviously, therefore, the request made by this deportable alien must be denied.
Recommendation: It is recommended that the alien be deported to Canada at Government expense on the charge stated in the warrant of arrest.
It is further recommended, That the alien's application for suspension of deportation be denied.
So ordered.
Discussion: On August 22, 1949, the Acting Assistant Commissioner found that the respondent was subject to deportation and ordered that she be deported. He denied the respondent's application for suspension of deportation. The record is before us on appeal.
There is no question regarding the deportability of the respondent on the above-stated documentary ground. The issue is whether her application for suspension of deportation was properly denied.
In denying the respondent's application for suspension of deportation the Acting Assistant Commissioner made the following statement:
Upon examination of the file covering the alien, which contains not only the record of hearing but other evidence concerning the alien's activities, we are satisfied that as a matter of discretion the recommedation of the Presiding Inspector should be followed and the alien deported. The power of suspending deportation is a discretionary one ( U.S. ex rel. Weddeke v. Watkins, 166 F. (2d) 369 (C.A. 2), cert. denied 68 S. Ct. 904 (1948); U.S. ex rel. Von Kleczkowski et al. v. Watkins, 71 F. Supp. 429 (D.C., S.D.N.Y., 1947), and not a matter of right. Since relief from deportation is not a matter of right but of discretion, it is quite apparent that any evidence, whether or not of record, officially touching upon the question of qualification for the benefit sought may be considered. The evidence in the file (some of it confidential in nature) establishes to our satisfaction that the alien's continued presence in the United States would be prejudicial to the interests of this country. Obviously, therefore, the request made by this deportable alien must be denied.
We agree with the Acting Assistant Commissioner that the grant of denial of suspension of deportation is discretionary (Immigration Act of February 5, 1917, as amended, section 19 (c), 8 U.S.C.A., section 155 (c); U.S. ex rel. Weddeke v. Watkins, 166 F. (2d) 369; U.S. ex rel. Von Kleczkowski v. Watkins, 71 F. Supp. 429). However, we do not agree with the Acting Assistant Commissioner in his assertion that "any evidence, whether or not of record, officially touching upon the question of qualification for the benefit sought may be considered." And we find that it was an error of law for the Acting Assistant Commissioner to base his conclusion upon "not only the record of hearing but other evidence concerning the alien's activities."
An alien who is charged with being subject to deportation is accorded a hearing before an immigrant inspector, known as the Presiding Inspector, to determine, whether he is subject to deportation as charged (8 C.F.R. 150.6 (a), (b)). The Presiding Inspector is required to apprise the alien, inter alia, of his right to apply for suspension of deportation, if found deportable (8 C.F.R. 150.6(c)). At any time during the hearing the alien may give notice that he wishes to apply for such suspension (8 C.F.R. 156.6 (g)). At the conclusion of the hearing the Presiding Inspector prepares a memorandum setting forth a summary of the evidence, his proposed findings of fact and conclusions of law and a proposed order respecting deportation (8 C.F.R. 150.7 (a) (c)). If the alien has applied for suspension of deportation, the Presiding Inspector includes in his memorandum a discussion of the evidence relating to the alien's eligibility for such relief and states in numbered paragraphs his proposed findings of fact and conclusions of law with respect to such eligibility (8 C.F.R. 150.7 (b)).
The foregoing regulations have the force and effect of law and are binding upon the Immigration and Naturalization Service ( Bilokumsky v. Tod, 263 U.S. 149, 155, 68 L. ed. 221, 224, 44 S. Ct. 54; Bridges v. Wixon 326 U.S. 135, 153, 89 L. ed. 2103, 2114, 65 S. Ct. 1443; Matter of J----, A-4691768. Sept. 26, 1949). They impose a duty upon the Government to grant a fair hearing to an alien on the issue of his deportability ( The Japanese Immigrant Case, 189 U.S. 86, 100-101, 47 L. ed. 721, 726; U.S. ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 106, 71 L. ed. 560, 563, 47 S. Ct. 302; Whitfield v. Hanges 222 F. 745, 749). They likewise impose a duty to accord a fair hearing to an alien on the issue of discretionary relief. As stated by the Court in U.S. ex rel. Salvetti v. Reimer, 103 F. 2d 777 at page 779:
We may assume without the necessity of decision, that the requirements of a fair hearing must be observed by the Board during its consideration of the alien's request (for voluntary departure) and that a decision based on charges which they had no opportunity to refute would be unfair.
In U.S. ex rel. Weddeke v. Watkins, 166 F. (2d) 369 (cited by the Acting Assistant Commissioner for the proposition that the suspension of deportation is discretionary), the court stated at page 371:
Since the regulations of the Attorney General have set up a quasi-judicial procedure for the determination of issues bearing on the propriety of exercising his power to suspend deportation under 8 U.S.C.A., section 155 (c), we assume that the alien is entitled to procedural due process in the conduct of such hearing, and we assume further that, if the Immigration Service issues a warrant of deportation without according the alien such procedural due process, the warrant can be challenged on this ground in habeas corpus proceedings.
Finally, in U.S. ex rel. Bauer v. Shaughnessy Civ. 50-217, U.S. District Court, Southern District of New York, July 28, 1949, the Court stated:
The rules and regulations promulgated by the Attorney General provide for a "hearing" of applications for discretionary relief only before the Presiding Inspector, 8 Code of Fed. Reg. Section 150.6 (g), and at such hearing the alien has the right through counsel to introduce evidence, to cross-examine the witness appearing against him and to explain or rebut the evidence which they have given 8 Code of Fed. Reg. 150.6 (d) * * * In considering evidence on which the Presiding Inspector did not pass and which the relator was not given any opportunity to rebut, in violation of the regulation of the Attorney General, the Board of Immigration Appeals deprived the relator of a fair hearing on his application for discretionary relief.
We are aware of the decision of the Court in U.S. ex rel. Von Kleczkowski v. Watkins, 71 F. Supp. 429. That case contained a report of military authorities, classified in part "secret" and in part "top secret" and this report was not disclosed to the alien and was not a part of the deportation proceeding. Yet the court sustained an order denying discretionary relief, although consideration was given to the report by the Attorney General. We believe, however, that the Von Kleczkowski case may be distinguished on the following ground, mentioned by the court at page 436: "* * * in the case at bar both the examining inspector and the Board of Immigration Appeals had recommended the denial of discretionary relief without recourse to the Tilly report. On would have to be unduly naive to suppose that, without that report, the denial of discretionary relief was not supported by the record."
In the Von Kleczkowski case the court also observed: "In the light of the considerations that there is grave doubt that any power of review exists with respect to the grant or denial of `discretionary relief,' that the relators are enemy aliens, that the Attorney General acted in time of war, that the withheld documents were classified by the military authorities as secret and top secret and finally that it is highly likely that, regardless of the Tilly report, the same finding would have been made, I conclude that the proceedings were not infected with unfairness by the Attorney General's recourse to the undisclosed report." We do not believe that these comments by the court derogate from the requirement insisted upon by the Circuit Court in the cases of Salvetti v. Reimer and U.S. ex rel. Weddeke v. Watkins (cited above) that procedural due process must be accorded to an alien on his application for discretionary relief.
In short, we hold that, while the grant or denial of suspension of deportation is discretionary, the exercise of that discretion must be based upon the evidence of record. We shall, therefore, direct that this case be remanded to the Immigration and Naturalization Service for a decision by it on the evidence of record and the evidence of record alone. If the Immigration and Naturalization Service should desire to reopen the proceedings for the reception of further evidence bearing on the issue of the respondent's qualifications for discretionary relief, it may, of course do so.
Order: It is ordered that this case be remanded to the Immigration and Naturalization Service for the purpose set forth above, and for such other purposes as may be deemed appropriate.
In accordance with section 90.12, title 8, Code of Federal Regulations, the Board certifies its decision and order to the Attorney General for review.
The decision and order of the Board of Immigration Appeals dated November 8, 1949, are hereby approved.
The approval of the Acting Attorney General dated November 16, 1949, of the decision and order of the Board of Immigration Appeals dated November 8, 1949, is hereby withdrawn. The decision and order of the Board of Immigration Appeals dated November 8, 1949, is hereby disapproved. The order of the Acting Assistant Commissioner of the Immigration and Naturalization Service dated August 22, 1949, is hereby approved.