United States ex rel. Hintopoulos v. Shaughnessy/Opinion of the Court

This is a habeas corpus proceeding to test the validity of an order of the Board of Immigration Appeals denying petitioners' request for suspension of deportation.

Petitioners are husband and wife, both aliens. Prior to 1951 both worked as seamen on foreign vessels. In July 1951 the wife lawfully entered the United States as a crew member of a ship in a United States port. Being pregnant, she sought medical advice; subsequently she decided in the interest of her health to stay ashore. A month later, on the next occasion his ship arrived in the United States, her husband joined her; he also failed to leave on the expiration of his limited lawful stay. In November 1951 their child was born; the child is, of course, an American citizen by birth. In January 1952 petitioners voluntarily disclosed their illegal presence to the Immigration Service and applied for suspension of deportation under § 19(c) of the Immigration Act of 1917, which provides, in part:

'In the case of any alien * *  * who is deportable under any      law of the United States and who has proved good moral      character for the preceding five years, the Attorney General      may *  *  * suspend deportation of such alien if he is not ineligible for      naturalization *  *  * if he finds (a) that such deportation      would result in serious economic detriment to a citizen or      legally resident alien who is the spouse, parent, or minor      child of such deportable alien *  *  * .'

Deportation proceedings were instituted in May 1952 and a hearing was held. On the undisputed facts both aliens were found deportable. As to the issue of suspension of deportation, the Hearing Officer, while finding petitioners eligible for such relief, denied the request, stating as follows:

'Both respondents have applied for suspension of deportation     on the ground of the economic detriment that would befall      their minor son in the event they were deported. * *  * Both      disclaim having a criminal record anywhere and both allege      that they have been persons of good moral character. Evidence     of record would tend to corroborate their testimony in this      respect. Their only income is from the employment of the male     respondent on two jobs *  *  *. Their joint assets consist of     savings in the sum of about $500 and their furniture and      other personal property which they value at $1500. While it     would seem that their son *  *  * would suffer economically if      his parents should be deported, it is not believed that as a      matter of administrative discretion the respondents'      applications for suspension of deportation should be granted. They have been in the United States for a period of less than     one year. They have no relatives in this country other than     each other and their son. To grant both this form of relief     upon the accident of birth in the United States of their son would be to deprive others, who are patiently awaiting visas      under their already oversubscribed quotas. It is noted also     that neither respondent reported his and her presence in the      United States at any time until January, 1952 when they filed      applications for suspension of deportation just two months      after the birth of their child. * *  * '

The Board of Immigration Appeals heard petitioners' appeal, and on March 18, 1954, upheld the Hearing Officer's recommendation and denied suspension of deportation. The Board stated:

'It is obvious that the American citizen infant child is     dependent upon the alien parents for economic support, care      and maintenance. Documentary and other evidence establish     good moral character for the requisite period. The aliens     have no connection with subversive groups.

'As stated above, we have, in the instant case, a family     consisting of two alien parents illegally residing in the      United States and one American citizen child, age about two      and one-half years. These respondents have been in the United     States for a period of less than three years. Both arrived in     this country as seamen. they have no other dependents or     close family ties here. The record indicates that the male     respondent may be able to obtain work as a Greek seaman and      earn about $85 monthly.

'Notwithstanding the Fact that * *  * the deportation of these      respondents would result in a serious economic detriment to      an American citizen infant child, the granting or withholding      of maximum discretionary relief depends on the factors and      merits in each individual case, and is a matter of administrative discretion. We have carefully examined the facts and     circumstances in the instant case and we find that the      granting of the maximum relief is not warranted by the record      in the case. * *  * '

Petitioners thereupon moved for reconsideration. On May 5, 1954, the Board denied the motion, stating:

'Counsel's motion sets forth no matters of which we were     unaware at the time our previous decision was rendered. It is     crystal clear that Congress intended to greatly restrict the      granting of suspension of deportation by the change of      phraseology which was used in Section 244(a) of the      Immigration and Nationality Act (of 1952) as well as the      Congressional comment at the time this provision was      enacted. We indicated in our previous order that the     deportation of the respondents would result in a serious economic detriment to their citizen minor child,      and we do not question that the respondents have established      the statutory requirements for suspension of deportation *  *      *.

'Upon our further review of the cases of the two respondents,     we adhere to our rpevious decision that suspension of      deportation should be denied as a matter of administrative      discretion *  *  * .'

Taken into custody for deportation, petitioners instituted the present habeas corpus proceeding, alleging that the Board abused its discretion in denying their application for suspension of deportation. The District Court dismissed the writ, 133 F.Supp. 433, and the Court of Appeals, one judge dissenting, affirmed, 2 Cir., 233 F.2d 705. We granted certiorari. 352 U.S. 819, 77 S.Ct. 53, 1 L.Ed.2d 45.

We do not think that there was error in these proceedings. It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met.

Nor can we say that it was abuse of discretion to withhold relief in this case. The reasons relied on by the Hearing Officer and the Board-mainly the fact that petitioners had established no roots or ties in this country-were neither capricious nor arbitrary.

Petitioners urge that the Board applied an improper standard in exercising its discretion when, in its opinion on rehearing, it took into account the congressional policy underlying the Immigration and Nationality Act of 1952, the latter being concededly inapplicable to this case. We cannot agree with this contention. The second opinion makes clear that the Board still considered petitioners eligible for suspension under the 1917 Act and denied relief solely as a matter of discretion. And we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy as manifested by the 1952 Act. Section 19(c) does not state what standards are to guide the Attorney General in the exercise of his discretion. Surely it is not unreasonable for him to take cognizance of present-day conditions and congressional attitudes, any more than it would be arbitrary for a judge, in sentencing a criminal, to refuse to suspend sentence because contemporary opinion, as exemplified in recent statutes, has increased in rigour as to the offense involved. This conclusion is fortified by the fact that § 19(c) provides for close congressional supervision over suspensions of deportation. In every case where suspension for more than six months is granted a report must be submitted to Congress, and if thereafter Congress does not pass a concurrent resolution approving the suspension of deportation, the alien must then be deported. In other words, every such suspension must be approved by Congress, and yet petitioners would have us hold that the Attorney General may not take into account the current policies of Congress in exercising his discretion. This we cannot do.

There being no error, the judgment is affirmed.

Affirmed.

Mr. Justice WHITTAKER took no part in the consideration or decision of this case.

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