Jay v. Boyd/Dissent Warren

Mr. Chief Justice WARREN, dissenting.

In conscience, I cannot agree with the opinion of the majority. It sacrifices to form too much of the American spirit of fair play in both our judicial and administrative processes.

In the interest of humanity, the Congress, in order to relieve some of the harshness of the immigration laws, gave the Attorney General discretion to relieve hardship in deportation cases. I do not believe it was 'an unfettered discretion,' as stated in the opinion. It was an administrative discretion calling for a report to Congress on the manner of its use. The Attorney General, recognizing this, rightfully provided for an administrative hearing for the exercise of that discretion. On the other hand, he provided by his regulation that his numerous subordinate hearing officers might, in spite of a record clearly establishing a right to relief, deny that relief if, on the basis of undisclosed 'confidential' information, the relief would in their opinion be 'prejudicial to the public interest, safety, or security.' Such a hearing is not an administrative hearing in the American sense of the term. It is no hearing.

Yet, on the basis of such 'confidential' information, after more than 40 years of residence here, we are tearing petitioner from his relatives and friends and from the country he fought to sustain, when the record shows he has not offended against our laws, bears a good reputation, and would suffer great hardship if deported. Petitioner is not a citizen of the United States, but the Due Process Clause protects 'persons.' To me, this is not due process. If sanction of this use and effect of 'confidential' information is confirmed against this petitioner by a process of judicial reasoning, it may be recognized as a principle of law to be extended against American citizens in a myriad of ways.

I am unwilling to write such a departure from American standards into the judicial or administrative process or to impute to Congress an intention to do so in the absence of much clearer language than it has used here.