United States ex rel. Hintopoulos v. Shaughnessy/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

This case, on its face, seems to be an instance of a deportation which would 'result in serious economic detriment to a citizen,' as those words are used in § 19(c) of the Immigration Act of 1917.

The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen. A five-year-old boy cannot enjoy the educational, spiritual, and economic benefits which our society affords unless he is with his parents. His parents are lawabiding and self-supporting. From this record it appears that they are good members of the community. They do not seem to have done anything illegal or antisocial that should penalize their American son.

It would seem, therefore, that the maintenance of this young American citizen in a home in America is the way to effectuate the policy of the 1917 Act.

The Board did not treat the case that way. Instead it imported into the 1917 Act the standard prescribed by the 1952 Act, which concededly is inapplicable here. That was the error which led Judge Frank to dissent below. 2 Cir., 233 F.2d 705, 709, 710. I think Judge Frank was right. Prevailing congressional policy on the approval or disapproval of suspension orders in nowise affects the standards prescribed for administrative action under the 1917 Act.

The Board erroneously followed irrelevant standards instead of exercising its discretion under the applicable statute, viz. § 19(c) of the 1917 Act.