Jay v. Boyd/Dissent Frankfurter

Mr. Justice FRANKFURTER, dissenting.

Since the petitioner was found deportable under the Act of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. § 137, as amended, 64 Stat. 1006, 1008, 8 U.S.C. (1946 ed., Supp. V) § 137-3, his deportation would follow automatically had not Congress, in § 244(a)(5) of the Immigration and Nationality Act of 1952, Entrusted the Attorney General with the power of relaxing this dire consequence by suspending the deportation. 66 Stat. 163, 214, 8 U.S.C. § 1254(a)(5), 8 U.S.C.A. § 1254(a)(5). This the Attorney General is authorized to do if the petitioner has been present in the United States for at least ten years since the grounds for his deportation arose, if he can prove that during all of such period he has been and is a person of good moral character, and, finally, if his deportation would, in the opinion of the Attorney General, 'result in exceptional and extremely unusual hardship.' If the Attorney General Finds that all three conditions are satisfied, he 'may in his discretion suspend deportation.' Such is the feature of mitigation with which Congress qualified what obviously is, and was designed to be, a very drastic exercise of its constitutional power to turn aliens out of the country for some past misdeed, often unthinking foolishness, and, it may well be, long after genuine repentance and the evolution of the alien into a worthy member of society.

By this provision, Congress plainly responded to the dictates of humanity. But, just as Congress could have exercised to the utmost its power of constitutional severity, so it could appropriately define the mode for its alleviation. It has seen fit to make the Attorney General the agent for its quality of mercy, to be exercised by him 'in his discretion.' The power of dispensation given the Attorney General he can, I have no doubt, withhold without accounting to anyone, and certainly without recourse to judicial review. Congress was evidently content to leave to the conscience of the chief law officer of the Government, the head of the Department of Justice, both the carrying out of its humane purpose and the protection of the public interest.

If the Attorney General's conscience is satisfied to act on considerations that he does not desire to expose to the light of day or to impart to an alien whose liberty may be at stake, thereby involving the fate of an innocent family, Congress leaves him free to do so. But Congress has not seen fit to invest his subordinates with such arbitrary authority over the lives of men.

One is not unmindful of the fact that the Attorney General is burdened with a vast range of duties, and that he, too, has only twenty-four hours in a day. To be sure, one of his predecessors in the administration of our immigration laws, President Taft's Secretary of Commerce and Labor, himself examined every deportation file in which an appeal was lodged. And Alfred E. Smith cannot have been the only Governor to read the records in the hundreds of applications that came before him each year for executive clemency. But, is in his wisdom the Attorney General devises a system for delegating the means for carrying out the responsibility for which Congress has given him discretion, he cannot also delegate his discretion. (That the nature of a delegated power may preclude regulation, see, e.g., the Canadian case, Attorney-General of Canada v. Brent, (1956) 2 D.L.R.(2d) 503, affirming (1955) 3 D.L.R. 587.)

If the Attorney General devises, as he has devised, an administrative system for effectuating § 244(a)(5) of the Act of 1952, administrative arbitrariness is ruled out. If the Attorney General invokes the aid of administrative law, as he has done by establishing a procedure before a special inquiry officer of the Immigration and Naturalization Service and a review of that officer's decision by the Board of Immigration Appeals, these two agencies of administrative law cannot be authorized to defy the presuppositions of a fair hearing. The Attorney General may act on confidential information and Congress has left him to square it with his conscience. But he cannot shelter himself behind the appearance of legal procedure-a system of administrative law-and yet infuse it with a denial of what is basic to such a system. See, e.g., Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 300, 57 S.Ct. 724, 728, 81 L.Ed. 1093.

President Eisenhower has explained what is fundamental in any American code. A code devised by the Attorney General for determining human rights cannot be less than Wild Bill Hickok's code in Abilene, Kansas:

'It was: meet anyone face to face with whom you disagree. You     could not speak up on him from behind, or do any damage to      him, without suffering the penalty of an outraged citizenry. If you met him face to face and took the same risks he did, you could     get away with almost anything, as long as the bullet was in      the front.

'And today, although none of you has the great fortune, I     think, of being from Abilene, Kansas, you live after all by      that same code, in your ideals and in the respect you give to      certain qualities. In this country, if someone dislikes you,     or accuses you, he must come up in front. He cannot hide     behind the shadow. He cannot assassinate you or your     character from behind, without suffering the penalties an      outraged citizenry will impose.' Press release of remarks of      the President, on November 23, 1953, on receiving America's      Democratic Legacy Award at dinner on the occasion of the 40th      anniversary of the Anti-Defamation League.

For me, the philosophy embodied in these remarks rules the situation before us. The petitioner sustained the burden which the statute put upon him to prove himself deserving to remain in this country and to save his family from being disrupted. On the record, the Attorney General's special inquiry officer found that the respondent 'appears to be qualified for suspension of deportation,' and this finding was not upset on appeal. But this finding for the petitioner was nullified on the basis of some 'confidential information.' The petitioner had no means of meeting this 'confidential information.' We can take judicial notice of the fact that in conspicuous instances, not negligible in number, such 'confidential information' has turned out to be either baseless or false. There is no reason to believe that only these conspicuous instances illustrate the hazards inherent in taking action affecting the lives of fellow men on the basis of such information. The probabilities are to the contrary. A system of administrative law cannot justify itself on the assumption that the ' confidential information' available to these inquiry officers and the Board of Appeals is impregnable or even likely to be true. When the Attorney General scrutinizes 'confidential information,' at all events it is the Attorney General who does so. If he is unable to carry out the discretion vested solely in him to act on whatever he chooses to act upon, he must either devise a shifting process that meets the elementary decencies of procedure or advise Congress of his inability to carry out the extraordinary responsibility which it has reposed in him and not in his subordinates.

I would reverse.