Kimm v. Rosenberg/Dissent Brennan

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

Suspension of deportation may be 'a matter of discretion and of administrative grace,' United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, but eligibility for suspension, for the exercise of that discretion, is very much a matter of law. McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 229, 95 L.Ed. 173. The decision of the Board of Immigration Appeals was that petitioner was not, under the governing statute, eligible for suspension; and on that basis its order must stand or fall in court. Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626.

The only basis of the Appeals Board's determination of ineligibility that the Government seriously defends here is the Board's finding that the petitioner had not shown he was not deportable under §§ 1 and 4 of the Act of October 16, 1918, 40 Stat. 1012, as amended by § 22 of the Internal Security Act of 1950, 64 Stat. 1006, 1008. Those provisions retroactively made deportable an alien who had been a Communist Party member at any time since his entry into the United States; and § 19 of the 1917 Immigration Act, 39 Stat. 889, as later amended, under which petitioner's eligibility for suspension was determined, made those aliens who were deportable on that basis ineligible for suspension of deportation.

It has not been, and scarcely could be, controverted that the Government must in general bear the burden of demonstrating, in administrative proceedings, the deportability of an alien; whatever the exceptions to this rule may be, it was established by the time relevant here that where post-entry misconduct is charged as the basis for deportability, the burden is the Government's. Hughes v. Tropello, 3 Cir., 296 F. 306, 309; Werrmann v. Perkins, 7 Cir., 79 F.2d 467, 469. Here the Government never bore any burden of showing that petitioner was deportable as having been, since his entry, a Communist. The determination of his deportability was made on entirely different grounds; that (as was conceded) he had failed to maintain the student status on the basis of which he had been admitted to the United States. At the hearing on suspension of deportation the Government introduced literally no evidence even remotely suggesting that petitioner had ever been a Communist; and much evidence as to petitioner's good character was introduced. But, apparently at random, and out of the blue, petitioner was asked about membership in the Communist Party; and he declined to answer, citing his constitutional privilege against self-incrimination. On this basis the administrative officials found that he was ineligible for suspension of deportation.

If the basis on which it was sought to deport petitioner in the first place was that he was deportable as a Communist or ex-Communist under §§ 1 and 4 of the 1918 Act, as amended, it could hardly be contended that this would be evidence, let alone sufficient evidence, that he was or had been a Communist, on which to base a finding of deportability. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637. The provision in § 19 of the 1917 Immigration Act, as amended, which is relied on, disqualifies from suspension an alien who is 'deportable' under the other Act; and one would think the burden of proof of deportability in both circumstances should be the same. The most obvious case, of course, for the application of § 19's disqualification from suspension is the one in which the Government, in the deportation proceedings, has already borne the burden of proving the alien deportable under the amended 1918 Act. It is an anomaly that the burden of proof shifts, there cases to be a requirement of evidence of deportability as a Communist or ex-Communist, and the alien must prove a negative in order to qualify for suspension, when the Government has chosen to base deportation on some other ground. In support of this the Court cites only a regulation which stated in general terms that it was up to the alien to show his eligibility for suspension. 8 CFR, 1949 ed., § 151.3(e), as added, 15 Fed.Reg. 7638.

I would think it perfectly plain that such a regulation, as applied in this case, would be contrary to the statutory scheme, properly and responsibly construed. In the first place, as I have noted, it turns around the ordinary rules as to the burden of proof as to which party shall show 'deportability.' It requires the alien to prove a negative-that he never was a Communist since he entered the country-when no one has said or intimated that he was. Such proof would necessarily lead to petitioner's bearing the laboring oar in showing that all his political or economic expressions in this country were independent of any covert connection with the Communist Party. The effect of imposing such a burden of exculpation on the exercise, for example, of non-Communist political action on behalf of causes which Communists might also happen to favor is obvious. In fact, on this very basis, we not so long ago struck down a state statute which placed on an individual desiring a tax exemption the burden of proof to show that his political activities were not of a proscribed nature-of a nature, moreover, which we assumed the State had the power directly to proscribe. Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460. We have this Term reaffirmed the central principle of that case, its inhibition on procedural devices which, though designed to reach legitimate ends, impose burdens on the exercise of the freedom of speech, in a subsequent decision, by striking down another state enactment. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. On such a basis we declared the enactments of sovereign States unconstitutional; I think we should hardly be less willing to apply the same doctrine to set aside, as not statutorily warranted, a federal administrative regulation which anomalously truns about the ordinary state of the burden of proof as to 'deportability,' and in fact so far dispenses with the ordinary requirement of evidence of 'deportability' that the alien must shoulder the burden of negating it even where the Government has introduced no evidence at all on the issue.

We are, apart from construction of the Constitution, responsible for the proper construction of Acts of Congress, and for determining the validity of challenged administrative regulations and procedures under them. Here we are called upon only to put a rational construction upon a federal statute and the allocation of the burden of proof under it, that will promote the statute's internal consistency and minimize its frictions with the First Amendment. One of the relevant enactments, § 22 of the 1950 Internal Security Act, is a harsh one whose constitutionality was upheld here only on historical grounds. See Galvan v. Press, 347 U.S. 522, 530-532, 74 S.Ct. 737, 742-743, 98 L.Ed. 911. By subscribing to the anomalous allocation of the burden of proof here, we increase the statute's harshness, promote the procedural restriction on the freedom of speech which we condemned in Speiser and Smith, and in practical effect, because of the allocation, let this petitioner's invocation of his constitutional privilege be equated with a demonstration of his deportability as to the matters on which he invoked the privilege. I cannot subscribe to a construction that has this effect, and accordingly dissent.